MISLEADING ADVERTISEMENTS DURING COVID-19: URGENT NEED FOR REFORM IN RESOLUTION PROCEDURE

This article has been authored by Tamanna Gupta, a fourth-year student at RGNUL, Punjab.

Introduction

Since the inception of Mass Media and Telecommunication platforms, advertisements have also witnessed a steady growth, both in terms of demand and revenue generated through adverts. While the purpose of advertisements is to ideally showcase the salient features of a product and leave the rest to the best judgment of the potential consumers, advertisements nowadays have gone beyond the call of duty, and are luring consumers by way of misleading promises, manipulation, and toying with the fears, insecurities and sentiments of the consumers.

The COVID-19 outbreak, that originated in December, 2019, in China, has not only wreaked havoc on economies worldwide, but has also complicated the advertising gamut further. Many companies are showcasing their products under the garb of COVID-19, claiming that their products can either cure or reduce the symptoms of the deadly virus, or in other cases, simply relating their product to COVID-19 in the form of a social message, where no such relation exists. While some adverts are innocuous enough, several instances of deceptive and misleading adverts in relation to COVID-19 have been observed.

Misleading Adverts in the COVID-19 Era

Defined under Section 2(28) of the Consumer Protection Act, 2019, a “misleading advertisement”, with reference to a product or a service, means an advertisement that either-

1. Falsely describes a product or a service or

2. Furnishes a false guarantee with reference to the said product or service or

3. Makes a representation, either express, or implied, that leads to an unfair trade practice or

4. Purposefully conceals relevant and/or important information.

While misleading advertisements have been aired even in the pre-COVID-19 scenario, airing of such adverts holds a heightened danger in the present context, due to the potential health implications on consumers. Several instances of such malpractices have been recorded in recent times. Recently, a mattress company, Arihant Mattresses faced police action for claiming that their mattresses were “Anti-Coronavirus Mattresses”. Another police case was filed against an Ayurveda Company, wherein the company allegedly claimed that its herbal products could help cure COVID-19. Even “Gaumutra” was presented as a potential cure to COVID-19, which led to a marked increase in consumption of “Gaumutra” in the state of Gujarat.

The AYUSH Ministry also faced a huge backlash over its handling of the “Patanjali-Coronil” controversy, wherein concerns were raised over the marketing of “Coronil” product, by Patanjali company, as a cure for COVID-19. The said tablets were being marketed as “immunity boosters” and not as a “cure” against COVID-19, stated a spokesperson from Patanjali. The AYUSH Ministry intervened in the controversy, sending across a clarification stating that Coronil cannot be touted or sold as a “cure” for COVID-19, The AYUSH Ministry however conceded to the demands of Patanjali, giving Patanjali Ayurved the chance to release the tablets as “immunity boosters”, thus allowing the release of Divya Coronil, Divya Swasari Vati and Divya Anu Talia, with a warning that the stated products must comply with the relevant provisions of Drugs and Magic Remedies (Objectionable Ads) Act.

Judicial Pronouncements

In Sameer Jain & Anr. v Union of India (2020), the Supreme Court recently addressed the question regarding the conflict faced in prosecution due to co-existence of various legislative set-ups and Advertising Standards Council of India (ASCI), which leads to conflicting jurisdiction issues, etc. The petitioner prayed for delineation of powers of private entities such as Advertising Standards Council of India (ASCI) vis-à-vis other legislations.

In Havells India Ltd & Anr vs Amritanshu Khaitan & Ors (2015), the Court stated several principles regarding misleading advertisements, also taking into account International Standards, noting the fact that India is not compliant with several laid down standards. The major principles laid down by the Court stated-

i. Advertisements shall neither distort facts, nor shall mislead consumers, by either omissions, or implications.

ii. The framing of advertisements must be done in such a way so as to repose the trust of consumers.

iii. Advertisements should not exploit the lack of knowledge or experience of a consumer, or deceptively dupe a consumer into buying the showcased product.

In Horlicks Ltd. and Anr v Heinz India Private Limited (2018), reiterating Havells India’s case, the Court stated that though disparagement in advertisements is implicit, some amount of distortion is permissible till an advertisement does not mislead.

Despite a catena of judgments laying down principles against misleading advertisements, lack of clarity and clashes in jurisdiction pose an issue in compliance.

Legislations Invoked by Authorities

India has laid down a comprehensive framework to tackle issues concerning the dissemination, airing, rules and regulations regarding advertisements. Several acts have provisions that lay down actions that can be taken in order to deal with deceptive adverts, misleading adverts etc. Section 89 of the Consumer Protection Act, 2019, states that airing false and misleading adverts can attract a term of imprisonment that may extend up to 2 years, and a fine of up to Rs. 10 lakhs may be levied. Section 7 of the Cable Television Network Rules, 1994, states that adverts should not have references that lead to an inference that any product can have miraculous cure/supernatural properties that helps cure an ailment.

Section 4 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 prohibits misleading ads related to drugs. Even the Advertising Standards Council of India (ASCI), a self-regulatory voluntary body, in its codebook, states under Chapter 1, Sub-Section 1.4 that adverts should not mislead consumers. Despite such stringent provisions laid down in various legislations, it has been observed that COVID-19 is being used as a smokescreen to hide the ill-intent of the advertising agencies, who continue to dupe unsuspecting consumers in order to sell their product.

Probable Way Forward- Reforms in Advertising Set-Up

In the COVID-19 scenario, it is increasingly becoming clear that the respective state and central agencies are unable to deal with the deluge of cases relating to mis-advertising, deceptive adverts, and misleading adverts on their own. This is where private and autonomous entities can step in. The Advertising Standards Council of India (ASCI), set up in the year 1985, is a self-regulatory voluntary organization that helps maintain the quality of advertisements displayed on various mediums.

The Supreme Court in Common Cause (A Regd. Society) v Union of India and Ors. (2017), recognized The Advertising Standards Council of India (ASCI) as a regulatory body for advertisements, and ASCI has also been accorded recognition by several branches and departments of the government, such as the FSSAI, Department of Consumer Affairs (DoCA), etc. Despite being recognized by the Apex Court, the body stands as a toothless tiger in the present scenario, due to the fact that it is not a statutory body and is not backed by any legislation, though it has been mentioned in passing by the Cable Television Network Rules, 1994.

The current cases are being tried under the provisions of Drugs and Magic Remedies Act (1954), Cable Television Regulation Act (1994). Even the AYUSH Ministry is intervening in several cases, despite the existence of a specialized body for handling such disputes. It is imperative that The Advertising Standards Council of India (ASCI) must be formally recognized by way of legislation, in order to reduce the influx of cases, which are solely dealt with by the government. Accordingly, a statutory recognition to Advertising Standards Council of India (ASCI) will pave the way for the harmonious co-existence of government and private entities to resolve advertising wrongs, not only in the COVID-19 context, but even for times to come.