I. INTRODUCTION
On August 10, 2023, the Department of Consumer Affairs ("DCA") issued additional guidelines for celebrities, influencers, and virtual influencers who endorse health and wellness products or services ("Guidelines"). The intention of these Guidelines is to curb misleading advertisements and unsubstantiated claims, and to promote transparency in health and wellness endorsements.
These Guidelines expand DCA's existing "Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022" and "Endorsement Know-hows!" guidebook. The Guidelines were formulated after necessary stakeholder consultations with the Ministry of AYUSH, Ministry of Health, Food Safety and Standards Authority of India ("FSSAI"), and the Advertising Standards Council of India ("ASCI").
II. REQUIREMENTS UNDER THE GUIDELINES
- Disclosures and Disclaimers
Certified medical practioners and health & fitness experts must disclose their certified status when sharing information, promoting health and wellness products, or making health-related claims. Such endorsers must also encourage their audience to seek advice from health and wellness centres or healthcare/medical professionals prior to making any significant changes to their diet, exercise, or medication.
Celebrities, influencers, and virtual influencers must provide adequate disclaimers that they are not certified medical practioners or health & fitness experts while sharing information, promoting any health and wellness products, or making health-related claims or assertions. They must also provide a disclaimer that their content should not be seen as a substitute for professional medical advice, diagnosis, or treatment.
Examples of topics where such disclosures and disclaimers would be required include health benefits derived from food items and nutraceuticals, disease prevention, treatment or cure, medical conditions, and recovery methodologies or immunity boosting.
- Due Diligence
Certified medical practioners and health & fitness experts are required to conduct adequate due diligence before endorsing any health or wellness product or service. 'Due diligence' is a broad and ambiguous term, but it could include thorough review of the claims to ensure they
are well-substantiated, or even using or experiencing the product or service prior to making the endorsement.
- Factual Information
Celebrities, Influencers, and Virtual Influencers are required to ensure that the information or advice they share is substantiated by facts, and sources and citations where necessary. It is essential that they refrain from making false, misleading, or exaggerated claims that could potentially mislead their followers or consumers.
- Prohibited Advertisements and Endorsements
Celebrities, Influencers, and Virtual Influencers should not endorse or promote any advertisements about any health or wellness products or services which imply or encourage its usage for diagnosing, curing, alleviating, treating, or preventing any disease, disorder or condition which is prohibited from being advertised under any law, rules or regulations at the time being in force.
III. GENERAL EXEMPTIONS
While these Guidelines cover a broad range of advertisements and endorsements, there are certain exemptions granted to celebrities, influencers, and virtual influencers. They are exempted from abiding by these Guidelines when sharing general health and wellness advice which are not associated with specific products or services, or not targeting specific health conditions and outcomes.
However, it is important for them to make a distinction between personal and professional views, and refrain from making specific health claims without substantiated facts.
Examples of general health and wellness advice which would be exempted from these Guidelines include 'Drink Water and Stay Hydrated', 'Exercise Regularly and Be Physically Active', and 'Get Enough Good Sleep'.
IV. COMPLIANCE REQUIREMENTS
The Guidelines require Celebrities, Influencers, and Virtual Influencers to comply with any investigations raised by relevant authorities concerning the authenticity of any claims made in their endorsements. Here, the relevant bodies could be DCA, FSSAI, Ministry of Health, Ministry of AYUSH, or ASCI, who have often brought claims investigating false or misleading advertisements and endorsements.
Non-compliance could result in penalties prescribed under relevant laws, such as the Consumer Protection Act, 2019 which prescribes fines and bans on advertisements for a specific period of time.
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.
