The problem of misleading ads continues to be serious in the country despite several legislations like Food Safety and Standards Act, Consumer Protection Act and the Drugs and Cosmetic Act.Some business houses thrive in misleading people in order to sell their products. Read on to know what more needs to be done in order to stop this practice.
The Union government suspended a television advertisement for Axe men’s deodorant, made by Mumbaibased Hindustan Unilever Ltd. The ad showed a man transform into a walking chocolate figurine after spraying himself with Axe’s Dark Temptation deodorant. As he walks through the city, women throw themselves at him, licking and biting off various parts of his body.
An advertisement byZaitoon Tara Edible Oil dated 23rd April 2013 at 22.30, carried in a TV channel, claimed that the edible oil prevented cancer, diabetes, acidity cholesterol, etc. The Consumer Complaints Council (CCC) of Advertisement Standard Council of India (ASCI)concluded this as misleading. The ad also violated the provisions of the Drug & Magic Remedies Act, besides contravening Chapter I.1, I.4 and III.4 of the ASCI Code of Self Regulation in Advertisement.
The concerned company did not comply with the order of the CCC. This was contravention of rule 7(9) of the Cable TV Network Act which specifically says ‘no advertisement which violates the code for self regulation in advertising, as adopted by the ASCI Mumbai for public exhibition in India, from time to time, shall be carried in the cable service’. Then the Ministry of Information & Broadcasting advised all TV channels not to carry this advertisement.
When it is a violation of law the consumer can take this issue to a court of law and demand damages or action against the company. Advertising is a part of promotion mix that can be defined as “a paid form of non personal communication from an identified sponsor using mass media to persuade or influence audience with a unique message”.
The types of misuses are identified as unfair, unauthentic, unethical, knowingly false, subliminal advertising. Subliminal ads mean a collective term for public announcements designed to promote the sale of specific commodities or services while being integrated below the thresholds of perception or awareness. It involves unconscious emotional manipulation by suggestion, or association
The Union government suspended a television advertisement for Axe men’s deodorant, made by Mumbai-based Hindustan Unilever Ltd. The ad showed a man transform into a walking chocolate figurine after spraying himself with Axe’s Dark Temptation deodorant. As he walks through the city, women throw themselves at him, licking and biting off various parts of his body. The Ministry of Information and Broadcasting stopped the ad from broadcasting after receiving a complaint from viewers. Unverified facts make it false ad, while mislead consumers using implied false claims is deceptive ad. Passing off goods or services as something they are not.Blatant lies and deliberately untrue statements, omissions of the truth, explicitly stated claims or implied verbal or visual claims make the ads questionable and actionable.
This author collected certain examples through browsing the net from various sources. Camel cigarettes launched an advertising campaign named “Pleasure to Burn” with a sexually inviting image of a female, implying that a Camel cigarette is the key to developing an intimate relationship with the woman shown in the picture. Winston Cigarettes ad directly appeals to young females, shows a young women standing up for herself, the message to teenage girls is that “Smoking is a gutsy act of establishing independence”.
The Head On claimed “provide immediate relief of headaches”, but no published studies shows that any of its ingredients alleviate headache pain. It sold 5 million tubes in 11 months at $8 a piece making $40 million dollars.
Many companies have tricked customers with rebates telling them how much they save after rebates but in fine prints they tell you that you have only limited time to get your money back or the just don’t give you your money back after filling out the rebates.
A pharmaceutical company would be engaging in deceptive advertising if it advertised that consumers should buy a particular drug it manufactures because the drug has been approved by the U.S. Food and Drug Administration (FDA).No drug can be sold in the U.S. unless it has been approved by FDA. Therefore the claim, while literally true, is deceptive because it creates the false impression that drugs produced by others may not have been approved by FDA.
Then there are many unfinished claims: the claims raise several questions, such as “Be the first to know” –a CNN advertisement slogan. to know what?!
They are another class. These claims advertised the difference of the product amongst others, but this does not necessarily mean that the product is better than the rest. They appear as stating facts, but basically claim nothing and shows no real advantage over any other product. For instance, “Rheingold, the natural beer made from grains and water” – is the slogan of Rheingold Beer Advertisement. Point to be noted is that all beers are made from these ingredients only.
Many “So What” Claims also should be understood. These claims are almost like making factual statements, but it claims things that competing claims do not make or offer more of something in order to exceed the consumer’s normal expectations. If a Tropicana claim that its orange juices now have extra calcium, then question is do we really need more calcium than what is already provided in orange juice?
We also come across vague claims, a vague claim states thing that is unclear, and not able to be verified. Gillette advertisement slogan says “The best man can get”.There is no way to verify this!!!
A lot of companies will use famous people to advertise their product hoping to get consumers to buy the product and to believe the claim is based on being a celebrities fan.“You too can have a body like mine” – Charles Atlas advertisement slogan. In two Telugu states in an ad now an MP claims he believed Homeo treatment from a particular company, and he asks all us to believe. Why?
Most of the time readers/viewers come across questionable statistics, which were never verified. Another example: On the Centrum Website we find “Higher levels of Vitamins B6 and B12 to support health”, then at the bottom of the page reads: “These statements have not been evaluated by the Food and Drug Administration. These products are not intended to diagnose, treat, cure or prevent any disease.” They put this on the bottom of the page knowing that some consumers will not bother to go that far down on the page after skimming at the information that is given.
A study in India covering Maharashtra and Delhi revealed how children influence buying decisions of the family. Another study in Asia Pacific covering five countries- India, Malaysia, Philippines, South Korea, Indonesia and some other European countries revealed interesting conclusions. Food ads are largest category of products advertised to children in all countries. Most prolific advertisers are – McDonalds, Nestle, Kelloggs, & Cadburys. There are certain norms to protect children from these ads, but they vary from country to country. In India, it is found that advertising was one of major factors greatly influencing parent’s decision, and thus most of the food ads are often aimed at children, 50% of adults confirmed that children influence their buying decisions. Regarding nutritional analysis of food ads the following observations were made: 50% for products high in sugar, 62% for products high in fat, 61% for products high in salt, overall 95 % for products high in fat, sugar and salt, and many food ads make misleading claims, use unfair or inappropriate marketing practices. (Chocolates portrayed as healthy, chocolates kept in medicine cabinet, etc).
It was recommended that there should be laws to regulate ads to childrenand advertising regulation should prohibit misleading, unfair or excessive number of ads ensuring effective enforcement of ad regulations.
It requires that the regulatory bodies should be independent and impartial, have transparent decision-making process, include consumer representation, have majority non-industry interests in decision making bodies, pre-check and monitor ads to ensure compliance with regulations, etc.
The Delhi High Court on May 12, 2012 issued notice to the Central and Delhi governments on a plea seeking action against a self-styled baba claiming to offer “magical treatment” while claiming himself to be a “representative of god”. It was alleged that he has spent lakhs on his ads and earned more than ` 200 crores within a few years. On media’s exposure, it was stopped, but several such ads in the form of sponsored special programs are appearing unrestricted.
There is a need to control advertisements of drugs alleged to possess magic qualities such as Talisman, mantra, kavacha, or any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease.
Section 3 says: No person shall take any part in the publication of any advertisement referring to drug in terms which suggest or are calculated to lead to the use of that drug for- Procurement of miscarriage in women or prevention of conception in women, Maintenance or improvement of capacity of human beings for sexual pleasure, correction of menstrual disorder in women, diagnosis, cure, mitigation, treatment or prevention of any disease or disorder or condition specified in the Schedule, or any other disease, disorder or condition which may be specified under rules. (Amended in 1963). Provided that no such rule shall be made except (i) in respect of any disease, disorder or condition which requires timely treatment in consultation with a registered Medical Practitioner or for which there are normally no accepted remedies, and (ii)after consultation with Drugs Technical Advisory Board or experts in Unani, Ayurveda.
Section 4 says: No person shall take any part in any advertisement relating to a drug containing matter which a) directly or indirectly gives a false impression regarding the true character of drug or b) makes a false claim for the drug, or c) is otherwise false or misleading in any material particular
Section 5 says: No person carrying on profession of administering magic remedies shall take part in any publication of advertisement referring to any magic remedy which directly or indirectly claims to be efficacious for any of the purposes specified in section 3.
Section 6 prohibits import or export of such material. And Section imposes penalty for first conviction: Imprisonment up to six months or with life or with both and for subsequent conviction, Imprisonment which may extend to one year or with fine or with both.
This is somewhat an outmoded law. While it prohibits misleading health claims in the print media; it has no provision to tackle the advertisements that may appear on the television or the internet. No law specifically to prosecute those who make false spiritual claims and deceive people. Only 630 cases are registered in two years, indicating the widespread of violation. 69 prosecutions were launched in the year 2010 – 2011 and 2011 – 2012 under the DMR Act. And 57 food items identified with misleading claims through print & electronic media, notices to manufacturers were issued. Maharashtra Food and Drugs Administration (FDA) seized medical products worth Rs.113 crore last year. It is obvious that for this country of 127 crore people, where hundreds of channels are streaming several misleading ads, this is nothing.
Section 29. Penalty for use of Government Analyst’s Report for advertising: Whoever uses any report of a test or analysis made by the Central Drugs Laboratory or by a Government Analyst, or any extract from such report, for the purpose of advertising any drug shall be punishable with fine which may extend to five hundred rupees.
9. Misbranded drugs. —For the purposes of this Chapter a drug shall be deemed to be misbranded— (a) if it is so colored, coated, powdered or polished that damage is concealed or if it is made to appear of better or greater therapeutic value than it really is; or (b) if it is not labelled in the prescribed manner; or (c) if its label or container or anything accompanying the drug bears any statement, design or device which makes any false claim for the drug or which is false or misleading in any particular. (S 17)
9C. Misbranded cosmetics – For the purposes of this Chapter, a cosmetic shall be deemed to be misbranded, — (a) if it contains a color which is not prescribed; or
(b) if it is not labelled in the prescribed manner; or (c) the label or any container or anything accompanying the cosmetic bears any statement which is false or misleading in any particular. S 17C
It came into force from Aug 5, 2011 making it at par with the international standards. It will ensure improved quality of food for the consumers and censure misleading claims and advertisement by those in food business. Following definitions are very important for every consumer to know:
“Misbranded food”: S 2 (zf) ” misbranded food” means an article of food-(A) if it is purported, or is represented to be, or is being-(i) offered or promoted for sale with false, misleading or deceptive claims either; (a) upon the label of the package, or(b) through advertisement… Penalty for misbranded food under Section 52.-(1) Any person who whether by himself or by any other person on his behalf manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is misbranded, shall be liable to a penalty which may extend to three lakh rupees.
Direction to rectify: 52 (2) The Adjudicating Officer may issue a direction to the person found guilty of an offence under this section, for taking corrective action to rectify the mistake or such article of food shall be destroyed.
Prohibiting unfair trade practices: 24. Restrictions of advertisement and prohibition as to unfair trade practices.-(1) No advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made thereunder.
(2) No person shall engage himself in any unfair trade practice for purpose of promoting the sale, supply, use and consumption of articles of food or adopt any unfair or deceptive practice including the practice of making any statement, whether orally or in writing or by visible representation which-
No false representation: (a) falsely represents that the foods are of a particular standard, quality, quantity or grade composition;( b) makes a false or misleading representation concerning the need for, or the usefulness;(c) gives to the public any guarantee of the efficacy that is not based on an adequate or scientific justification thereof: Provided that where a defence is raised to the effect that such guarantee is based on adequate or scientific justification, the burden of proof of such defence shall lie on the person raising such defence.
Offence under FSSA: Food Safety Officer shall be liable to a penalty which may extend up to one lakh rupee if he / she is found to be guilty of an offence under section 39 of the Act. Provided that in case the complaint made against the Food Safety Officer is false the complainant shall be punish with fine which shall not be less than fifty thousand rupees and may extend to one lakh rupees.
Penalty for misleading ad: 53. Penalty for misleading advertisement.-(1) Any person who publishes, or is a party to the publication of an advertisement, which-(a) falsely describes any food; or(b) is likely to mislead as to the nature or substance or quality of any food or gives false guarantee, shall be liable to a penalty which may extend to ten lakh rupees.
Redefine misleading: At present, misleading advertisements are treated as unfair business practices. It requires a sharper definition in Consumer Protection Act. M.R.Ramesh VS M/S Prakash Moped House and Others,(RPNo 831 of 2001) the apex consumer court warned against advertisements that use fine print to hide crucial information pertaining to products and services, thereby misleading the consumer.
If “free gift” is promised, it should really be so. If the manufacturer is recovering either fully or even partly, the cost of free gift, it becomes a false or a misleading claim, coming under the definition of ‘unfair trade practice’.
Contravention: 53 (2) In any proceeding the fact that a label or advertisement relating to any article of food in respect of which the contravention is alleged to have been committed contained an accurate statement of the composition of the food shall not preclude the court from finding that the contravention was committed.
The problem of misleading ads continues to be serious in the country despite several legislations like Food Safety and Standards Act, Consumer Protection Act and the Drugs and Cosmetic Act. In India, advertisements for cigarettes, liquor, pan masala, products that are harmful to the public continue to find a place on television channels despite the ban imposed by the government, as agreed by the concerned minister.
New Law to Regulate Ads It was long back announced that the Consumer Affairs Ministry is framing a new law to curb misleading advertisements, also claimed to have started country-wide consultation with all stakeholders. It is expected that the new law would allow consumers to seek legal action against false claims made by companies in their advertisement.
National Consumer Protection Agency The government is setting up National Consumer Protection Agency (NCPA) to monitor and penalise companies that make misleading claims in their advertisements. The NCPA, under the consumer affairs ministry, would be empowered to take severe action, including recall of the product and slapping cases against the firms.
Flooded with growing consumer complaints over misleading advertisements, especially relating to health and nutritional benefits and the get-rich schemes, the government is planning an investigating agency to curb the practice. Consumer Protection Act allows the Govt. to order probe into specific complaints and take to courts. This probe agency, if comes into being will help, as the consumer courts cannot collect evidence and it enables the government to be complainant.
This is a new class of products that are storming the market. Misleading advertisements related to nutrition in food supplements, cosmetics and herbal products promising immediate health benefits have to be tackled. It is estimated that Indian nutraceutical products that combine the benefits of nutrition with pharmaceuticals, has a huge market worth $1 billion. Globally, the market for nutraceuticals is pegged at around $124 billion.
There is no doubt that misleading ads will violate consumer’s right to information about the product or services, influence his choice leading to financial loss and mental agony for him and members of family and wrong claims about health cures and drugs will be more dangerous. Let us hope new government will make new laws to help consumers fight misleading advertisements.
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