By – Sharanya Ranga & Nidhi Tandon
Covid-19 has changed our lives – all our conversation is centred around Covid-19 the last few months. Advertisements in such emergencies play a crucial role not only for the promotion of product sales but also act as a means to create awareness about the preventive and control measures relating to the pandemic. That having said, advertisers today are trying to link their products directly or indirectly to Covid-19 or the circumstances surrounding it and are blatantly peddling products through false or misleading claims related to Covid-19.
Let’s look at some examples:
Arihant Mattress- Corona-Resistant
TheArihant mattress released an advertisement in a Gujarati newspaper that went viral on the social media for its claim that their mattress was ‘corona-resistant’ and ‘anti-corona virus’! The owner was booked by the Maharashtra Food and Drug Administration under various laws including the Disaster Management Act, 2005 and the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.
Ayush Ayurvedic Treatment cures Covid 19
There was a news flash with regard to Ayush Ayurveda products treating Covid-19. The Ministry of Ayush wrote to all states and the Advertising Standards Council of India (ASCI) to take action against misleading ads and promotions about ayurvedic treatment to prevent and cure Covid-19.
Eat Chicken-Beat Corona
The advertisement in question was taken out by the Karnataka Poultry Farmers and Breeders Association and Vencobb. The advertisement claimed that eating chicken boosts immunity. Acting on a complaint filed by the People for the Ethical Treatment of Animals (PETA), ASCI instructed that the online ad be taken down.
The Dettol advertisement
There are also advertisements that employ cleverly worded messages and deceptive visuals to misrepresent the need for other products to fight the dreaded disease. One such example is the commercial disparagement dispute between Hindustan Unilever (HUL) and Reckitt Benckiser (RB), the two FMCG majors selling hand wash products with HUL taking RB to court over a DETTOL hand wash advertisement allegedly mocking the effectiveness of HUL’s LIFEBUOY soap. Riding on the importance given to hand-washing in preventing the spread of coronavirus, HUL had advertised their LIFEBUOY soap with a view to promote washing hands as a means to maintain self-hygiene. Following HUL’s advertisement, RB took out an advertisement that allegedly that its DETTOL hand wash was more effective than regular bar soap (shown as a red bar soap). HUL maintained that RB had attempted to denigrate HUL’s LIFEBUOY soaps and its red bar shape was clearly recognizable in RB’s advertisement, compelling HUL to move the court for seeking damages and permanent injunction. The advertisement in question is no longer available.
Regulatory framework on false and misleading advertisements
ASCI’s Code for Self-Regulation
Advertisements in India are regulated under the Code for Self-Regulation formulated by ASCI, a self-regulatory non-government organisation in India that aims to ensure that all advertisements adhere to fair and just legal practices. Several guidelines have been issued by ASCI on advertisements for food and beverages, non-food items, beauty and healthcare products, etc. to ensure truthful and honest information is provided to customers.
Currently, ASCI can only make recommendations to the advertiser to remove the advertisement but cannot compel removal of the advertisement or grant any interim relief or compensation.
Consumer Protection Act, 2019
The Central Consumer Protection Authority under the newly enacted Consumer Protection Act, 2019 is empowered to deal with all deceptive and false advertisements. On a complaint from the consumer or the government, consumer courts have the power to order the withdrawal of advertisements, direct issuance of corrective advertisements and award compensation to consumers..
The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954
This Act specifically prohibits false and misleading advertisements relating to drugs, besides remedies claiming magical or miraculous properties. The Act prescribes as punishment imprisonment up to six months or fine or both for the first offence and imprisonment up to one year or fine or both for a subsequent offence.
Food Safety and Standards (Advertising and Claims) Regulations, 2018
False or deceptive advertisements pertaining to food are specifically governed by the Food Safety and Standards (Advertising and Claims) Regulations, 2018 and enforced by the state food safety officers. Violations attract a penalty up to Rs. 10 lakhs.
The Cable Television Network Rules, 1994
These Rules provides that all advertisements must adhere to the laws of the land. The products and services advertised should not suffer from any defect or deficiency as mentioned in the Consumer Protection Act, 2019 and that they must not contain any references that are likely to lead the public to infer that the product advertised or any of its ingredients occupy some special or supernatural or miraculous property or quality that is difficult to prove.
The Cable Television Network Regulation Act, 1995
Under this law, no person is allowed to transmit or re-transmit through a cable service any advertisement that is not in conformity with the Code for Self-Regulation formulated by ASCI.
Liability of celebrities endorsing such misleading ads
Consumers tend to select and purchase products and services endorsed by their preferred celebrity. With the growth of social media, celebrities have become the ‘go-to’ for brands when it comes to targeting/engaging a particular audience to promote their products. Referred to asinfluencers, they play an integral role in increasing brand awareness, influencing consumer choices and propagating specific claims in a competitive environment.
So what happens when a celebrity makes a false claim or stars in a misleading ad? The ASCI Code provides that the claims made in celebrity endorsements should not be misleading, false or unsubstantiated and that celebrities should conduct sufficient due diligence of the claims and statements in relation to the product/service being endorsed.
Given the voluntary/self-regulatory aspect of the Code, it does not provide any statutory sanctions or penalties for any misleading or false claims by celebrities. The Consumer Protection Act, 2019 now provides penalties on the (celebrity) endorser of the false or misleading advertisement. Under section 21, the Central Authority may pass directions to the manufacturer or endorser to discontinue or modify advertisements apart from imposing fines. The penalty may extend to ten lakh rupees for a first-time offence and extend to up to fifty lakh rupees for repeat offences, with imprisonment upto five years. It also prohibits the endorser of a false or misleading advertisement from making endorsement of any product or service for a period that may extend to one year and up to three years for every subsequent contravention. With this amendment it is hoped that companies and celebrities will exercise caution while endorsing products/services and refrain from making misleading or false claims.
Advertisement guidelines as per the Maharashtra COVID-19 Regulations, 2020
Given the surge in misleading advertisements around Covid-19, the Maharashtra Government has come out with the following advertisement guidelines:
It requires every person/ Institution/ organization using print or electronic or social media for dissemination of any information regarding COVID-19 to ascertain the facts and obtain prior clearance of the Commissioner, Health Services, Director of Health Services (DHS-I & II), Director, Medical Education & Research (DMER), or Collector as the case may be. This has been issued since it is considered to be necessary to avoid spread of any unauthenticated information and/or rumours regarding COVID-19
Any person found violating any provision of these Regulations would be deemed to have committed an offence punishable under Section 188 of Indian Penal Code, 1860(IPC), which prescribes punishment for disobeying any order duly promulgated by a public servant. Recently, in Punjab the police have registered a case against an insurance agent and the editor of the newspaper for posting an advertisement that is allegedly trying to mislead people about the impact of Covid-19 and asked people to contact him for the insurance cover. A case was registered under Sections 188 of the IPC.
Misleading advertisements create a scare amongst the general public during situations such as the present pandemic. Advertisers should avoid broadcasting false or unsubstantiated claims that can trigger health risks.