When art is without an ulterior intent, it is pure; it is respected and not judged according to any societal parameters. But for this, the Art itself has to be untouched by any motive other than expression.
Can advertisements and endorsements by celebrities be considered as pure art forms? No. That is because, the intent behind advertisements and promotional activities is not only to put forth an artistic expression, but is predominantly biased towards driving the consumer base towards the product/ service being endorsed. And hence the social immunity that art-forms enjoy (or rather should enjoy) is not always applicable to these promotional activities.
Based on this premise, we come to the Consumer Protection Bill, 2018 which was recently passed by the Lok Sabha and is now pending with the Rajya Sabha. This Bill seeks to wholly replace the Consumer Protection Act, 1986.
The Bill is revolutionary since it will be changing and modifying the Indian market place in various ways. A considerable amount of liability is imposed upon various entities in the trade chain such as the manufacturer, packager, endorser etc. Such legislation is a welcome change against misleading advertisements and unfair trade practices. The issue of consumers being left helpless in cases of deficient services or defective goods has reached its peak now, and a cogent mechanism for redressal of the complaints of such distressed consumers shall certainly be in interest of the general public.
One very important aspect that the Bill addresses is the liability of the endorser of brands in case the consumer suffers an injury due to defective goods or services. It imposes a penalty of up to INR 10 lakh on a manufacturer or an endorser for false and misleading advertisements. For a subsequent offence, the fine may extend up to INR 50 lakh. The endorser of a misleading advertisement can also be prohibited from endorsing any particular product or service for a period of up to 1 year. For every subsequent offence, the period of prohibition may extend to 3 years. However, if the endorser has exercised due diligence to verify the veracity of the claims made in the advertisement, he shall not be liable to the penalties under the law.
A lot of debate has gone around the film fraternity as well as the legal fraternity, as to whether the liability imposed on celebrities is valid? Morality is as subjective as a person, and hence whether the celebrity is morally liable or not is a ‘to each his own’ statement. However, the imposition of liability on the endorser is not full-proof and is prone to various loopholes when it comes to enforcement. For instance, how is the celebrity to identify and ascertain the contents of the products? How can a fresh-out of- a- high class- parlour celebrity be expected to know the effects (or side effects) of a Rs. 120 worth Kajal? Let us go a step further and assume that the celebrity is aware of such details of the products/ services, the question as to how that particular product was harmful specifically for the consumers still remains unanswered. This further widens the scope of loop holes in the present legal scenario when it comes down to enforcement of such laws.
The role that an endorser plays in the product promotion can settle the debate a little more. The role of the endorser is limited to attracting attention before saying what the brand-owner has got to say. He/ She basically acts as a speakerphone to the brand’s voice- making it louder and its reach wider.
The other side of the coin is the endorser’s personal ethical responsibility. The religious fan following that India gives to its celebrities, whether they are film stars, cricketers, etc. imposes a tinge of responsibility (if not more) on these celebrities to watch what they say rather than act merely as a carriers of information. Especially when their fan following is prone to mental and physical health hazards.
Nevertheless, such a responsibility, though can be imposed on the ‘morals’ that the celebrity endorses, the same cannot be imposed for the defects in the products he/ she endorses for reasons of practicality stated hereinabove. That would be like killing the messenger. No?!
Compiled by: Adv. Sachi Kapoor | Concept & Edited by: Dr. Mohan Dewan
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