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  • LAW MANTRATHINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)

    Deceptive and Misleading Advertisements in India

    Introduction

    Perception is subjective phenomenon. People draw meaning though a complex process

    involving both hemispheres. It is this process which provides a wide window of opportunity to

    admen to mislead by twisting what drives perception and what is pushed into background.

    Advertising is an effective tool adopted by the market players to reach their perspective

    customers and to educate them about the uses of their products. However, the practice of

    advertising can also be misused to deceive the customers and bait them into the trap laid down

    by the producers. It is due to the prevalent cut-throat competition in the marketplace that

    various businesses are resorting to the unethical practices of releasing misleading and false

    advertisements. However, this is not the only reason for misleading customer. Most of the time

    deceptive advertisements are made to disparage the competitive counterparts and display a

    very vague image about them. Such advertising is seldom accompanied with malicious

    intention of undue enrichment of their product. In the race of scaling higher profits and

    expanding their sales, companies wholesomely ignore their responsibility towards customers-

    the responsibility of providing true and correct information about their products. Customer, in

    the words of John K. Galbraith is described as

    It is not the consumer who is the king, but it is the large corporation who is the king in the

    economy. Whatever happened is not because the consumer wants it but because large and

    powerful corporations prefer it that way

    This paper will be dealing with the concept of misleading advertisements and would also be

    highlighting a few celebrated cases in the context of same.

  • 1. Elucidation of the term Misleading advertisements

    An advertisement is misleading if it deceives or is likely to deceive those to whom it is

    addressed and as a result is likely to affect their economic behaviour or is likely to injure a

    competitor of the advertiser.1 Section 2(r)2 while defining Unfair Trade Practices provides

    misleading representation/advertising to be one of the recognized methods undertaken by the

    market players for deceiving their customers.

    2. Judicial Pronouncement on misleading advertisement

    Using false statements to entice buyers, quoting false prices to attract customers or disparaging

    a rival product in a misleading manner are some of the common practices that are adopted by

    the business entities to have an edge over their competitors. Newspapers and the televisions are

    flooded with such advertisements.

    i. Bureau Of Indian Standards vs Pepsico India Holdings P. Ltd.3

    The advertisement of water packaging brand 'Aquafina' contains a pictorial depiction of snow

    capped mountains is being manufactured and marketed by Pepsico India Holdings Pvt. Ltd. It

    is objected on the ground that the pictorial device "Snow-Capped mountain" as used in the

    label suggests that the Packaged Drinking Water has its origin in the mountains indicating the

    product to be sourced from the mountains which is therefore a misleading claim regarding the

    origin of the water. The other objection is on the expression 'Purity Guaranteed' which creates

    confusion in the mind of the general public regarding nature, composition and properties of the

    Packaged Drinking Water. The Court held that the pictorial device 'snow-capped mountain'

    suggests the packaged mineral water has its origin in the mountains which creates a misleading

    impression in the mind of the purchasing public. The phrase, "Purity guaranteed", the

    expression 'Purity Guaranteed', only conveys to the consumers the guarantee that the quality of

    the product is safe for human consumption and it does not contain any harmful and undesirable

    substance

    ii. Colgate-Palmolive (India) Limited Vs. Anchor Health and Beauty Care Private Ltd.4

    1 Available at http://www.cccindia.co/corecentre/Database/Docs/DocFiles/misleading.pdf last visited 30 May 2014 2 Consumer Protection Act, 1986. 3 129 (2006) DLT 522. 4 2008-4-LW628, (2008)7MLJ1119, 2009(40)PTC653(Mad)

  • The grievance was regarding Television Commercial of Anchor Toothpaste. In the said

    advertisement, a Hindi Film actress advises her daughter that "Anchor" tooth paste is the only

    tooth paste containing Triclosan, Calcium and Fluoride and that it is the first tooth paste

    providing all round protection. Ultimately, the actress questions the viewer as to when the

    viewer would change over to "Anchor" tooth paste. The said advertisement also showed that

    Fluoride in "Anchor" tooth paste gives 30% more cavity protection and Triclosan is ten times

    more effective in reducing bacteria. Colgate contended that Anchor is not the first and only

    brand using Triclosan, Calcium and Fluoride and even Colgate contains all the three

    ingredients. Further, every tooth paste is supposed to contain 1000 ppm (particles per million)

    of fluoride and the same is also regulated by Rule 149-A of the Drugs and Cosmetics Rules.

    When the ingredients of a normal tooth paste are just the same, the claim of superiority that the

    defendant's product would give 30% more cavity protection and 10 times more effective in

    fighting bacteria, were obviously false, intended to mislead the consumers. The Court allowed

    the contention of colgate to a limited extend and held Anchor guilty of unfair trade practice by

    projecting their product as only product containing 3 ingredients and as first and only product

    to provide all round protection. Thus, in public interest, the Court, restricted anchor to continue

    with such misleading claim .

    iii. Glaxosmithkline Consumer Healthcare Ltd. Vs. Heinz India (P) Ltd.5

    In this case, two advertisements of Complan (Heinz) were challenged to be disparaging and

    misleading. First advertisement of Complan shows a Mummy telling the another Mom that

    shes compromising her childs health by buying a product made of cheap

    ingredients(Horlicks, Glaxo) and that her (fat) child would not grow as fast as a child who was

    fed Horlicks. The Complan mother then picks out a Complan packet and explains how it has 23

    vital ingredients which would ensure fast growth of a child. In the second advertisement, a

    Horlicks mom asks the Complan Mummy how her son was so tall and strong. The Complan

    mother then expounds on the virtues of Horlicks after which she asks the Horlicks mother:

    have you ever read the label of cheap Horlicks? This is followed by the Complan mom

    explaining to the Horlicks mom that Horlicks is made of cheap products and ingredients which

    means less nourishment & protein. The ad ends with a voiceover praising Complan. The Court

    ruled in favour of Horlicks since the ad-campaign against them was clearly disparaging and

    also ordered Complan to pay Horlicks costs of Rs. 2.2 Lakhs only Justice Bhat drawn a

    5 2009 (39) PTC 498 (Del).

  • distinction between advertisements in different mediums i.e. print and television with the

    standard of judicial scrutiny being much higher in the latter than in the former. The reason for

    this according to Justice Bhat is the fact that television advertisements unlike print

    advertisements make an instant impact across consumer classes and the level of impact of such

    advertisements on the consumer is much greater than a print advertisement where each word

    has to be read, analysed and understood.6

    iv. Marico Limited vs Adani Wilmar Limited 7

    The Present case was between edible oil manufacturing companies Saffola and Fortune.

    Saffola contended that Fortune has made false, unsubstantiated and misleading claims and

    statements in respect of Fortune Rice Bran Oil (RBO) as being the healthiest oil in the world,

    healthier than the SAFFOL oil and is good not only for the heart, but also good for cholesterol

    immunity, skin and hormones.

    The Court ruling in favor of Fortune held that the Courts cannot adopt a hyper technical view

    and penalize the defendant for not disclosing each and every detail regarding the cholesterol

    lowering abilities of Oryzanol so long as the intent, storyline and message sought to be

    conveyed by the advertisement is not entirely untrue. Hence, it was held that the advertisement

    of Fortune is not misleading.

    v. Dabur India Ltd. Vs. Vs. Colortek Meghalaya Pvt. Ltd. 8

    It was held that while hyped-up advertising may be permissible, it cannot transgress the grey

    areas of permissible assertion, and if does so, the advertiser must have some reasonable factual

    basis for the assertion made and it is not possible for anybody to make an off-the-cuff or

    unsubstantiated claim that his goods are the best in the world or that his goods are better than

    that of a rival.

    vi. Reckitt & Colman of India Ltd. v. M.P. Ramchandran and Anr. 9

    This case was referred to for the following propositions relating to comparative advertising: 6 Mr. Prashant Reddy Delhi High Court rules on Horlicks v. Complan Ad-Campaign Ad-gurus gone wild first published on December 1, 2010 available at http://spicyip.com/2010/12/delhi-high-court-rules-on-horlicks-v.html last visited 29 May 2014. 7 199 (2013) DLT 663. 8 (2010) 44 PTC 254 Delhi (DB) 9 .,1999 (19) PTC 741

  • (a) A tradesman is entitled to declare his goods to be best in the world, even though the

    declaration is untrue.

    (b) He can also say that his goods are better than his competitors, even though such statement

    is untrue.

    (c) For the purpose of saying that his goods are the best in the world or his goods are better

    than his competitors he can even compare the advantages of his goods over the goods of

    others.

    vii. Hamdard Dawakhana and Anr., Kalipada Deb and Anr., Lakshman Shripati Itpure @ Lakshman Shripati Impore and A.B. Choudhri and Anr. Vs. The Union

    of India (UOI) and Ors.10

    This case deals with advertising of prohibited drugs and commodities. The Court came to the

    conclusion that the sale of prohibited drugs was not in the interest of the genera) public and as

    such "could not be speech" within the meaning of freedom of speech and expression under

    Article 19(1)(a) of the Constitution. The Court further held in the said case that an

    advertisement is no doubt a form of speech but its true character is reflected by the object for

    the promotion of which it is employed.

    viii. Godfrey Phillips India Ltd Vs. Ajay Kumar11

    A cigarette manufacturing company Red and White manufactured and sold the cigarettes by

    its name. The Advertisement stated Red and White smokers are one of a kind with smiling

    face of actor Akshay Kumar holding a cigarette. National Commission allowed revision and

    issued certain directions including payment of compensation to complainant. The Supreme

    Court held that in order to represent all aggrieved strata of people, the complainant has to take

    their permission and in absence of permission under Section 13 (6) of Consumer Protection

    Act, 1986, it is not permissible for complainant to represent them and hence, order of National

    Commission set aside.

    ix. Colgate Palmolive (India) Ltd Vs.Hindustan Lever Ltd.12

    10 AIR1960SC554 11 AIR2008SC1828 12 AIR 1999 SC 3105

  • In this case it was contended by Hindustan Lever that Colgate dental Cream for its promotion

    in its advertisement claimed to have action of 'Germ Fighter', which is projected as a process

    by which germ activity. It is stated to have the ability to 'fight tooth decay' and to 'Stop bad

    breath'. Hindustan lever carried out in their Research center well accepted test to study the anti-

    bacterial efficacy of the Colgate. The test data shows that Colgate Dental Cream has no

    significant impact on the survival rate of oral bacterial during the contact of 60 seconds which

    is more than the average brushing time of consumers. The same test done for toothpaste will

    standard antibacterial agent shows a significant drop in the survival rate of these bacteria under

    similar conditions". The dismissed the appeal of Hindustan lever stating

    No evidence has been led as to whether there would be avoidance of 'tooth

    decay' or 'germ fighting' by reason of the user of the toothpaste and without

    rendering evidence on these two basic elements in our view, question of there

    being a prima facie case for establishment for the grant of interlocutory

    injunction does not and cannot arise.

    x. M. R. Ramesh vs. M/S Prakash Moped House and Others13

    In this case the apex consumer court ruled against an advertisement that used fine print to hide

    crucial information pertaining to product and services, thereby misleading the consumer in

    their choice. By the way of awarding monetary compensation to the consumer, who was misled

    by such an advertisement, the National Commission held that it would not take such violation

    of consumers right to information lightly. The commission also advised the manufacturers and

    services providers that advertisements should not mislead and should give a clear picture of

    quality of goods sold.This case was concerned with the advertisement of a motorbike Hero

    Honda CD-100. One M. R. Ramesh bought the above mentioned bike in Bangalore in February

    1993. His contention was that at time of purchase, he was assured that bike would run 80 kms

    on a litre of petrol. However, the bike ran 22 kms less than promised. He filed before the

    National Consumer Dispute Redressal Commission, New Delhi that an advertisement

    published in October 1993, wherein the manufacturer had made such a claim about the mileage

    of the motorcycle. The manufacturer, on the other hand, brought on record advertisement

    during the period which carried an asterisk on the numerical figure of 80 and at the foot of

    advertisement in small print, said at 40 kmph/130 kg, thereby qualifying the claim.

    3. False claims of warranty or guarantee.

    13 RP No. 831 of 2001.

  • It is also one of the highly practiced ways of deceiving the customers. In order to persuade the

    customers to buy ones product, the companies make false claims regarding the warranty or

    guarantee of a product thereby creating an impression of a quality product in the mind of the

    customers. On occasions of any default or shortcoming in the products/services (post purchase)

    the companies fail to accept any responsibility and try to flee from the liability of making good

    the defect. Thereafter the customers are rendered helpless and they feel cheated.

    4. Non-compliance of Lucrative offers

    Various brands and companies resort to the idea of luring their customers by displaying offers

    in their advertisements which they in reality dont wish to comply with. Some of the examples

    of such offers are free gift on purchase of a product, additional quantity of the product for

    free, Chance to win a trip abroad on purchase of the product, etc. It is due to these attractive

    offers that consumers are declined towards the products of the companies making such offers.

    Whereas generally no such offers are complied with, making the purchase of the product

    worthless.

    One of the most relatable examples in this context would be of the offers provided by the

    mobile phone service providers. They claim to be providing offers such as free calls and

    SMSes but in reality they mobilize the funds which the customers pay to avail such services to

    compensate their expenses. There are various hidden costs and surcharges that the customers

    overlook and are thereby made to believe that such costs and surcharges are not levied upon

    them.

    When any advertisement uses or rather misuse of the word free ("buy one, get one free" sale)

    there it is an established fact that the consumer is very definitely paying for what is apparently

    free.

    Another common practice undertaken by the sellers is that they increase the prices of their

    products along with which they claim to provide free gifts and by the way of the increased

    prices they cover up the expenses incurred by them in providing the free gifts.

    5. Violation of customers right to safety

    This includes health cures and drugs of questionable efficacy and health gadgets of unknown

    values. This class of advertisements is the most dangerous, as they can also have a severe

    repercussion on the health and safety of the consumer.

  • Tempted by an advertisement, claiming to increase a person's height, Nadiya, a Class VIII

    student having a height of 135 cms got admitted to Fathima Hospital for surgery, on 24-7-

    1996, for increasing her height. The surgery was conducted and a ring fixator was fixed on the

    legs which had to be adjusted every six hours. To her dismay Nadiya found her left leg shorter

    by inches, and therefore she could not walk. By September 1996, the pain had increased and

    the complainant was bed-ridden till March, 1998. The Commission held the hospital and the

    doctors negligent and deficient in their service and directed them to pay Rs 5,00,000 with costs

    amounting to Rs 2,000 to the complainant. The doctors were fined for a sum of Rs. 1 lakh for

    publishing misleading advertisement

    In matter of Ajay Gautam Vs. Amritsar Eye Clinic and 6/6 Lasik Laser Centre, Dehradun &

    others National Consumer Disputes Redressal Commission (NCDRC) (Judgement Dated :

    26.02.2010) held that doctors cannot advertise anything that would mislead a person into going

    for a treatment based merely on the doctors claim that he/she would be cured completely,

    according to a judgement The Dr Dinesh Sharma of Amritsar Eye Clinic, Dehradun had

    advertised that his laser surgery could correct visual acuity and therefore one could get rid of

    spectacles. Upholding a fine of Rs 1 lakh on the doctor, the commission, found the doctor and

    the hospital where the surgery was done guilty of adopting unfair trade practice, and

    violating the MCI code of ethics by publishing misleading advertisement. The doctor was

    fined Rs 1 lakh for publishing misleading advertisement. Also the advertisements for general

    medicines that are aired on televisions or the radios never talk of the side effects that may

    result from the frequent use of such medicines.

    6. Impact of misleading advertisement on Children

    Children represent three different markets. In addition to the direct money that children spend

    and the money they influence, children also represent a third major market and perhaps the

    most significant and that is the future market14. Advertisers recognize that brand loyalties and

    consumer habits formed when children are young and vulnerable will be carried through to

    adulthood. Retailers and marketers also aware of the fact that those who switch are less likely

    to be loyal than those who are nurtured from childhood15. The majority children have

    generally grasped the intention to persuade by the age of eight, while after eleven or twelve

    14 Sharon Beder: Marketing to children, New College Institute for Values Research, Sydney http://www.uow.edu.au/arts/sts/sbeder/children.html 15 James U. McNeal, Kids as Customers: A Handbook of Marketing to Children, New York: Lexington Books, 1992, p. 91

  • they can articulate a critical understanding of advertising16. Surprisingly children from the age

    group of 3-6 years, (most of whom who cannot distinguish between advertisements and

    programs) who do not have the emotional or cognitive tools to evaluate what's being sold to

    them also demand for product of their choice (most of the times advertised products). They

    want the advertised product which gives pleasure because its glorified17fantasy and puffery

    appeal.

    Obesity

    In a recent study, Dr. Robert Lustig from the University of California, San Francisco suggests

    that childhood obesity arises from foods that are high in fat and fructose and low in fiber.

    When children eat these insulinogenic foods, the insulin not only increases the effects of the

    pleasure-chemical dopamine (making the child want to eat more of the same food) but also

    reduces the effects of the hormone leptons, making the child want to eat more and be less

    active 18. Indian child on an average get exposed to not less than 20 attractive messages of

    these product. More time spent with television viewing more exposure to these messages

    (Repeat advertisements message result into placing the brand on top of the mind) will result

    into buying the brand illustrated in the advertisements. If we screen the table we can note on

    an average child from age group 3-6years spend 2.32 hours, 6-9 years spends 3.12 hours and a

    child from 9-12years spends 3.45 hours. More time spend more will be advertising exposure 19

    Smoking20

    Spanning a 3-year period from 1993 to 1996, the study found that adolescents who had a

    favorite cigarette advertisement in 1993, compared with those who did not, were twice as

    likely either to have started smoking by 1996 or to be willing to start, and those who owned or

    were willing to own a promotional item were three times as likely to have started smoking by

    1996 or to be willing to start

    7. Impact misleading advertisement on Adolescents

    Effects of the mass media have been found to be far-reaching and potentially harmful in

    16 Bandyopadhyay, S., Kindra, G., Sharp, L. (2001), "Is television advertising good for children? Areas of concern and policy implications", International Journal of Advertising, Vol. 20 pp.89-116. 17 Mass Media and Child Obesity-The advertising impact on increased weight gain- Column published by Dr. Richard Visser in http://www.lafamily.com/display_article.php?id=1433 18 Ibid. 19 The Impact of television advertising on child health and family spending - A Case Study by Dr. Kadambini Katke Dayanand Sagar College of Management and Information Technology, Bangalore. E-mail: [email protected] 20 Impact of Media on Children and Adolescents: A 10-Year Review of the Research page 398

  • influencing the health-related behaviors of children and adolescents, many of whom are not yet

    mature enough to distinguish fantasy from reality, particularly when it is presented as real

    life. This is particularly important for very young children who developmentally think

    concretely and are unable to distinguish fantasy from reality. Furthermore, time spent with

    media decreases the amount of time available for pursuing other more healthy activities such as

    sports, physical activity, community service, cultural pursuits, and family time.21 In the

    absence of regulations restricting food advertising aimed at children, reduction in television

    viewing is a promising approach to reducing excess energy intake.22

    8. Conclusion

    Although the legal framework for the prevention of unfair, deceptive, and misleading

    advertising in India exists, the practice continues almost unabated. Consumers and their

    organizations must assert their rights against unscrupulous businessmen indulging in such a

    practice and bring such cases to the notice of the enforcement agencies, which, in turn, have to

    play the role of a watch-dog of public interest.

    By:

    Ananya Pratap Singh and Harshit Manaktala , 3rd Year, Symbiosis Law School, Noida

    21 Effect of Electronic Media on Children MUNNI RAY AND KANA RAM JAT, Volume 47 July 14 2010 22 Ibid.