Beyond Clickbait: Combating Fake Ads and Protecting Yourself

Introduction

There is no denying that commercials have an impact on what consumers choose. Because of this, it is essential that advertisements are impartial and accurate. False and deceptive advertising are not only immoral, but they also stifle competition and, naturally, consumer choice. In actuality, deceptive and false advertising infringe a number of fundamental consumer rights, including the right to knowledge, the right to choose, the right to be shielded from dangerous products and services, and the right to be free from unfair business activities.

Exaggeration is evident in the way advertising tout the benefits of a product or service, as this is their primary purpose. However, when it goes farther and tries to mislead the customer by purposefully saying something wrong or distorting the truth, then it becomes objectionable.

 

Meaning of Misleading Advertisement

 

The IRDA (Insurance Advertisements and Disclosure) Regulations, 2000 defines “unfair or misleading advertisement” as any advertisement-

 

- that fails to clearly identify the product as insurance;

- makes claims beyond the ability of the policy to deliver or beyond the reasonable expectation of performance;

- describes benefits that do not match the policy provisions;

- uses words or phrases in a way which hides or minimizes the costs of the hazard insured against or the risks inherent in the  policy;

- omits to disclose or discloses insufficiently, important exclusions, limitations and conditions of the contract;

- gives information in a misleading way; illustrates future benefits on assumptions which are not realistic nor realisable in the light of the insurer’s current performance;

- where the benefits are not guaranteed, does not explicitly say so as prominently as the benefits are stated or says so in a manner or form that it could remain unnoticed;

- implies a group or other relationship like sponsorship, affiliation or approval, that does not exist; makes unfair or incomplete comparisons with products which are not comparable or disparages competitors.

 

Consumer Protection Act, 2019 (CPA): 

This is the primary legislation for consumer protection in India. The CPA defines a misleading advertisement as one that

- Falsely describes the product or service.

- Gives a false guarantee.

- Is likely to mislead consumers about the nature, substance, quality, or quantity of the product or service.

- Deliberately conceals important information about the product or service.

The CPA establishes the Central Consumer Protection Authority (CCPA) to enforce these regulations. The CCPA can investigate misleading advertisements, order modifications, and impose penalties of up to ?10 lakh (approx. $12,200 USD) for the first offense and ?50 lakh (approx. $61,000 USD) for subsequent offenses. Additionally, the CCPA can prohibit endorsers of misleading advertisements from endorsing products for up to 3 years.

 

Advertising Standards Council of India (ASCI):

 This is a self-regulatory body that sets guidelines for ethical advertising practices. While not a legal enforcement agency, ASCI can recommend corrective measures for misleading advertisements. Advertisers who disregard ASCI's guidelines risk reputational damage and potential action by the CCPA.

 

Some Related Laws

There  are  a  number  of existing legislations that have provisions to deal with misleading claims and advertisements made by the companies regarding their products which includes,

- The Drugs and Cosmetics Act, 1940 (Department of Health and Family Welfare)

- The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1955 (Department of Health and Family Welfare)

- Food Safety and Standards Act, 2006 (Department of Health and Family Welfare)

- The  Cigarettes  and  other  Tobacco  Products  (Prohibition  of  Advertisement  and  Regulation  of  Trade  and  Commerce,  Production,  Supply  and  Distribution)  Act,  2003 (Department of Health and Family Welfare).

- The Bureau of Indian Standards (Certification) Regulations, 1988 as under its Rule 7 (1) (l), (g) and (h) prohibits misleading advertisements pertaining to BIS certification.

Over  and  above,  the  Advertisements  aired  on  private  satellite  TV  channels  are  regulated  under  the  Advertising  Code  prescribed  in  rules  framed  under  Cable  Television  Network  (Regulation)  Acts  1995.  The  misleading  Advertisements  in  print  media,  which  are  violative  of  ‘Norms  of  Journalistic  Conducts”  are  being  adjudicated  by  the  Press  council  of  India  under  Section  14  of  the  Press  council Act 1978. The Food Safety and Standards Authority also provides for penal action against misleading advertisement pertaining to food products.

How to File online complaint ?

Registration 

 The complainant has to register on the site (https://consumerhelpline.gov.in/. Basic details have to be shared (name, phone, mail, address etc.) User ID and Password will have to be generated.

Filing the complaint 

- Select from Registered Brands/Providers: You can file a complaint against any enlisted brand or service provider.

- Use the Dropdown Menu: This menu categorizes entities by sectors, segments, and specific brands for easy selection. Ensure you pick the appropriate brand or provider from the list.

 Filing Process

- Detail the Complaint's Nature: Clearly describe the issue you're facing.

- Mention Involved Parties: Provide details of any individuals or entities related to the issue.

- Attach Supporting Documents: You can upload any relevant documents that support your complaint.

- Specify the Impact: Highlight any consequences you've experienced due to the issue.

- State Your Desired Solution: Clearly mention what resolution or relief you're seeking.

 Status Tracking After submission, each complaint is given a unique electronic number. You can use this number to monitor the complaint's status and progress until its resolution.

Always remember to act promptly since the limitation period to file a complaint is generally two years from the date on which the cause of action arises.

Patanjali Advertisment Case

The Patanjali fake advertisement case is an ongoing legal battle between the Indian Medical Association (IMA) and Patanjali Ayurved, a popular Ayurvedic company co-founded by yoga guru Ramdev. The IMA alleges that Patanjali's advertisements mislead consumers by:

- Making unsubstantiated claims: Patanjali's ads were accused of promoting their Ayurvedic products as cures for various diseases without scientific backing.

- Disparaging modern medicine (allopathy): The IMA argued that Patanjali's advertising campaign downplayed the effectiveness of modern medicine, potentially harming public health

Arguments by Patanjali: Patanjali has defended their advertisements by claiming they promote a healthy lifestyle and the benefits of Ayurveda, a traditional Indian medicine system. They argue their products are meant to complement, not replace, modern medicine. 

 Events Time line  in the case:

- Mid-2022: The IMA filed a petition against Patanjali over their allegedly misleading advertisements.

- November 2023: The Supreme Court (SC) directed Patanjali to stop publishing such advertisements and warned against making misleading claims about curing diseases.

- February 2024: Despite the warning, the SC issued a contempt notice to Patanjali for continuing with misleading advertisements.

- April 2024: Patanjali issued public apologies in newspapers, but the SC emphasized the need for sincerity and requested original copies for review. The court also broadened the case to address misleading advertisements by other FMCG companies.

 Present  Situation (as of May 3, 2024):

- The SC is waiting for the original copies of Patanjali's apologies.

- The next hearing is expected in May 2024.

-  The final outcome will determine the consequences for Patanjali and set a precedent for future advertising practices in India.

-  Impact on Patanjali: The ongoing legal case has tarnished Patanjali's reputation to some extent. The hefty fines and potential limitations on advertising could also impact their business.

- Public Reaction: Public opinion on the case is divided. Some support the IMA's stance against misleading advertisements, while others believe Patanjali has the right to promote Ayurveda.

- Long-term Implications: The final judgment from the SC is expected to set a strong precedent for advertising practices in the Indian consumer goods market, especially for companies dealing with healthcare products. It could lead to stricter regulations and increased scrutiny of advertisements.

- Potential Solutions: Some propose establishing clearer guidelines for advertising Ayurvedic products, ensuring they accurately represent their benefits without making false claims about curing diseases.

Conclusion:

Although surrogate commercials are covered by the Guidelines, it is unclear exactly what kinds and amounts of surrogate advertising are acceptable. Numerous tobacco and alcohol companies have promoted their products and services through music festivals, merchandise, and tour events in an effort to increase demand for both alcoholic and non-alcoholic beverages. Several firms have now asked the Indian authorities to clarify whether phrases like "don't drink and drive" or "responsible drinking" can be used in surrogate commercials. However, the Guidelines legitimize India's criteria for acceptable and unacceptable advertising. In order to guarantee the protection of consumer rights and to promote legitimate marketing with improved consumer awareness, the regulations pertaining to bait advertising, free claims advertising, children-targeted advertisements, and endorsements are unquestionably positive steps.

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Article Compiled by:-

Prerna Yadav

(LegalMantra.net Team)

Disclaimer: Every effort has been made to avoid errors or omissions in this material in spite of this, errors may creep in. Any mistake, error or discrepancy noted may be brought to our notice which shall be taken care of in the next edition In no event the author shall be liable for any direct indirect, special or incidental damage resulting from or arising out of or in connection with the use of this information Many sources have been considered including Newspapers, Journals, Bare Acts, Case Materials , Charted Secretary, Research Papers etc.

 

 

 

 

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