“Watchful When You Advertise”– Penalties For Misleading Advertisements

KEY TAKEAWAYS 

• Basic understanding about advertisements.
• What are the laws that govern the advertisement industry 
• Misleading advertisements and their repercussions 
• New guidelines by central government. 

INTRODUCTION

When was the last time when you bought an item without noticing it on your screen? I guess that you will take a long time to answer this. You are not only the one who has to trace back their memory to find an answer. It is so because in today’s world everything single thing ranging from a Ballpen to BMW, Fruit juice to Bacardi, Crayons to Cosmetics and many more are displayed on our screens and surroundings. The technology has created a vast space for different modes of advertisements. The purpose to please people has become so competitive that it requires attention to protect people from any fraud and misleading information. 

What is ‘ADVERTISEMENT”

Let us first understand the basic meaning of advertisement. According to Oxford Dictionary, advertisement is a notice, a picture or a film telling people about a job, product or service. In simple words we can interpret advertisement as an appealing way of gathering public to sell your thing. 

Today, there are various means of advertisements particularly social media which has massive influence on people. As per data of Jan 2022, there are 230.25 million Indian users of Instagram. Facebook, as per data of Jan 2022, accounts for 34.2% of Indian users.

Thus, the data roars how strong social media has its influence on the people. It is important to note that social media is the major ground of advertisements among the youth in particular and public at large in general.

Misleading Advertisements are one of the major concern in the advertisement industry. These are the advertisements which have false or deceptive information. If an advertisement lacks or conceals important fact or information then it will be understood as misleading advertisement. 

An example of misleading advertisement: In 2014, the energy drink company Red Bull was sued because of the tagline of the company ‘Red bull gives you wings” did not gave “wings” to Beganin Caraethers who was a regular consumer of the drink for 10 years. 

LAWS GOVERNING ADVERTISEMENTS IN INDIA

With emerging trends in the advertisement industry such as digital media marketing, surrogate marketing, online gaming marketing, affiliate marketing etc, there is rise in demand of laws that can govern the advertisement industry and ensure the protection of rights of the citizens. India does not have any core law specifically concentrated on advertisements but has related provisions to regulate it. India prefers self regulating laws for advertisement industry. These rules and regulations are laid down by several authorities such as Advertising Standards Council of India(ASCI), Advertising Agencies Association of India(AAAI), Indian Newspaper Society ( INS). RBI, SEBI and IRDA regulate advertisements in their sectors. The Department of Consumer Affairs also maintain an online portal where consumers can post their grievances against misleading advertisements and other ways through which consumers are cheated. The laws which govern advertisements are as follows:

• Consumer Protection Act
• Cable Television Regulations Act
• Transplantation of human organ Act
• Indian Penal Code and Criminality of Advertisements

PENALITIES FOR MISLEADING ADVERTISEMENTS 

Misleading advertisements have seen an increase in number since recent years. At least 2 in 3 ( or 70%) Indians consumers said that they have come across misleading advertisements during pandemic, according to a recent survey. According to the online portal, Grievances Against Misleading Advertisements, which is run by the Department of Consumers Affairs, over 6000 complaints of misleading advertisements were received from 2019 to 2021. 

ASCI found that during 2020-22, 300 advertisements were related to untested claims of COVID-19. Only 12 such ads were found to be scientifically correct during the period.The most severe effect of misleading advertisements are on children who innocently believe what appears on the screen. 

The Central Consumer Protection Authority (CCPA) under the Department of Consumer Affairs has issued ‘Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022’. 

The aim of the guidelines is to regulate advertisements in India so as to reduce the chances of consumers getting mislead. These guidelines seek to curb malafide intentions of the company to earn profit by fooling consumers.. The guidelines will be applicable to advertisements published on all platforms like print, television and online.

CCPA can impose penalty of up to INR 10 lakh on manufacturers, advertisers and endorsers for any misleading advertisements. For subsequent contraventions, CCPA may impose a penalty of up to INR 50 lakhs. The Authority can prohibit the endorser of a misleading advertisement from making any endorsement for up to 1 year and for subsequent contravention, prohibition can extend up to 3 years.

SIGNIFICANCE OF THE NEW GUIDELINES 

The new guidelines by the central government is appreciative. The emphasis on misleading advertisements was the need of the hour. 

It is in no doubt wrong to say that today children are way smarter than their parents. They know various things which even their parents perhaps don’t know. Hence in such changing times preventive measures are must to ensure that children consume right content. It was an obligation of the government to ensure that the content poured out of screens are not harmful for children. The advertisements misleads children to believe that whatever comes on screen is real. For instance, advertisement of eating a particular brand of chocolate makes a child as strong as a superhero creates a belief in the mind of child such that he or she completely relies on that particular chocolate and refuses home cooked foods. 

 Guidelines for the advertisement industry was a necessary step. There are many instances where ordinary citizen sometimes lacks prudence and consequently suffers due to advertisements. 

RELEVANT CASE

In landmark case of Tata press Ltd v Mahanagar Telephone Ltd (MTNL), the Supreme Court considered if Tata Press was permitted to publish telephone directories and sell Advertisements in its yellow pages. The court while equating Advertisements or commercial speech to the Fundamental Right of speech as enshrined in the Constitution, held that the protection has been accorded to corporate entities as well.

The obligation to compare all necessary features of a rival product when an advertisement of a product compares itself from others was held by the Court in case of Havells India vs Amritanshu kaitan (2015).

CONCLUSION

With the new guidelines, it is hoped that the interests of consumers are protected. Strict implementation of the guidelines are necessary to curb the malpractice of misleading advertisements and other ways through which consumers are cheated. Also, awareness among the consumers is needed. They should be made aware about the precautions and preventive measure they should opt to protect themselves and in case of any offence how they can reach out to the authorities for redressal. Parents of children needs to stay aware and keep a check on the content that their children are consuming. It is a duty of parents to ensure what their child is perceiving from the screens they provide