India: Cracking Of Whip On Misleading Advertisements

Last Updated: 22 November 2017
Article by S.S. Rana & Co. Advocates

Advertisements have been an age old forms of communication to the public about the goods or services. They help in promotion of the business of the producer using various media like newspapers, magazines, journals, hoardings, posters, radio, television, internet to name a few. Not only the advertisements help in dissemination of information about the products or services but they also help in convincing and thus attracting the customers to the unique quality, standards and benefits being offered therein thus enhancing the sales of the producer.

Regulation of Advertisements

Despite the benefits of the advertisements in expanding the market horizon and accelerating the economic growth, their unregulated use often results in misleading the consumers in the market at large. In India, the legal framework administering the advertising standards and promoting responsible advertising is controlled by Advertising Standards Council of India (ASCI). ASCI seeks to ensure that advertisements conform to its Code for Self-Regulation, which requires advertisements to be legal, decent, honest and truthful and not hazardous or harmful while observing fairness in competition. The purpose of the Code is to control the content of advertisements and thereby issues instructions in this respect along with complaint procedure in event of failure in compliance.

Misleading Advertisements under scanner

In August, 2017, ASCI processed complaints against the advertisements from the general public, industry as well as from the Department of Consumer Affairs' Grievances against Misleading Advertisements (GAMA) Portal. Some advertisements were considered by the ASCI upon a suo moto action under the National Advertisement Monitoring Services (NAMS) Project. Out of 193 advertisements, complaints against 114 advertisements were upheld. Earlier in July, 2017, 116 complaints were upheld against 165 advertisements. It was observed that some of the advertisements even contravened the provisions of Drugs & Magic Remedies Act. A number of advertisements were scrutinized in the various segments were found to be violating the ASCI regulations, some of which include:

  • Health
    The complaint against Trophic Wellness Pvt. Ltd. (Nutricharge Glycem Prodiet) was upheld on account that the same was not substantiated by the advertiser as genuine and unpaid by providing evidence from the model in the advertisement.
  • Food & Beverage
    The advertisement by Tata Chemicals Ltd. (Tata Nx Zero Sugar) claimed "zero sugar" on one hand while through their own communication presented their product to be "low calorie sweetener" thus disseminating wrong information in the market.
  • Personal Care
    The font size of the disclaimers in the Colgate-Palmolive (India) Ltd. (Colgate Active Salt) measures less than 12 pixel thereby defying ASCI guidelines.
  • Education
    National School of Business vide their advertisement declared 100% placement track record with average salary package of 4.3 LPA for 2016 failed to substantiate the said fact with authentic supporting data and hence was held by ASCI as misleading.

Adherence to ASCI

ASCI's role has been accorded recognitions by various Government agencies have partnered with ASCI to address all misleading advertisements in their respective sectors including:

  1. The Department of Consumer Affairs (DoCA) provides for ASCI rules regarding complaints received on Grievance Against misleading Advertisements (GAMA) portal;
  2. The Food Safety and Standards Authority of India (FSSAI) resorts to ASCI to deal with misleading advertisements;
  3. The Ministry of AYUSH complies with ASCI standards to regulate advertisements.
  4. The Supreme Court of India in its recent judgement1 has also affirmed and recognized the self-regulatory mechanism put in place for advertising content by ASCI.
  5. The Cable television Networks Rules, 1994 prohibits any advertisement which violates ASCI rules to be carried on through cable services
  6. The Indian Broadcasting Foundation's Self-Regulatory Guidelines for non-news 7 current affairs programmes suggest that complaints regarding the advertisements are to be in accordance to the ASCI Code.

Conclusion

ASCI & its Consumer Complaints Council (CCC) deal with Complaints received from Consumers and Industry against Advertisements which are considered as False, Misleading, Indecent, Illegal, leading to Unsafe practices, or Unfair to competition, and in contravention of the ASCI Code for Self-Regulation in Advertising. In furtherance to its objective of advertising with conscience, ASCI aims to ensure compliance to the protocols laid by it. There remains an indispensable requirement of the product is substantiated by the product efficacy data provided. The advertisements broadcasted to public should not be contradictory and misleading by ambiguity, implication and exaggeration. It is advisable that the producers of goods and services do not come up with advertisements which claim or exaggerate to an extent which they cannot match up as the same would amount to misrepresentation to the customers in the market. The strict measures taken up the ASCI would thus ensure healthy market conditions with respect to genuine goods and services.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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