Regulating misleading advertisements- The New Indian Express


Consumer protection laws in India have undergone major changes in the past few years. One area that lacked specific guidance but was covered under the Act related to misleading advertisements. The Central Consumer Protection Authority Advertisement came up with the Guidelines of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.

The guidelines introduce rules for various kinds of advertising, ie, bait advertising, free claims advertising, children-targeted advertisings and surrogate advertising. Bait advertising means enticing consumers to buy the product at a lower price.

It is subject to certain conditions, like the reasonable prospect of providing the goods at that price, the seller having enough stock to fulfill the demands of the consumers, non-misleading advertisements, and the availability of reasonable explanation if the seller is unable to supply the goods.

The guidelines totally prohibit the use of surrogate advertisements. They refer to any advertisement that is either prevented by law or circumvents the prohibition by law (indirect advertisements).

In the case of free advertisements, the consumer is supposed to only incur the unavoidable cost of claiming the offer as a response to the advertisement; and for collecting or delivering the goods, the cost is supposed to be nil.

With regard to advertisements targeted at children, the guidelines prohibit advertising of such products that will harm kids in any way. It could be a product that is harmful to their health, or creates unrealistic expectations, or claims benefits that are not scientifically proven or are outright exaggerations.

However, most importantly, the guidelines insist on due diligence before the endorsement of any advertisement. Due diligence will have to be done by professionals seeking to endorse a product or service.

That is, the claim should reflect the reasonable current opinion of the individual. Moreover, the individual should be sufficiently informed and aware of the product to ensure that the advertisement is not deceptive or misleading. And foreign professionals are barred from advertising such products or services that are not allowed to be promoted or endorsed by Indian professionals.

The guidelines also prohibit advertisements that can develop a negative image of the body in the minds of the children. Advertisements also cannot give the impression that a product is better than the traditional food that children usually consume at home.

The provisions related to product endorsement can be strengthened further if there is more clarity on what is “reasonable current opinion”. The idea is to ensure that the meaning is not left open-ended. That way, the advertiser can easily avoid for the endorsement. Referring to the endorsers, the guidelines say they also have to declare their connection, if any, with the manufacturer or the service provider.

It equally places duties and responsibilities on the service providers, manufacturers, advertisers and the advertising agencies for substantiating and objectively justifying the claim being made through the products or services on offer.

With respect to the penalty for violation of the guidelines, it is to be derived from the Consumer Protection Act itself. It prescribes monetary penalties to the tune of Rs 10 lakh for the first offence, which can go up to Rs 50 lakh for subsequent offences and imprisonment of up to two years under Section 89 of the Act.

It can be seen that the law on consumer protection is developing organically and the changes will take time to come into effect. It is hoped that the changes will be swift and objective.

(The writer is a legal scholar based in the UK and can be reached at lalchandani.kavya@gmail.com)

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