This article answers answers on how the Advertising Standards Council of India (ASCI) is dealing with misleading ads in India. written by Prachi Mehta student at MKES College of Law
Advertising is an important tool for companies to sell their products and influence consumer buying behavior. In this digital age, we are constantly consumed by these ads. Hence, it is important to show ads that are genuine and not misleading. This article is about misleading advertising, the role of the Advertising Standard Council of India in curbing misleading advertising, as well as cases of misleading advertising amid Covid-19.
Misleading advertising under the Consumer Protection Act of 2019 can be defined as “misleading advertising” related to a product or service. This means an advertisement that incorrectly describes such a product or service. or gives consumers a false guarantee as to the nature, substance, quantity or quality of any such product or service or is likely to mislead them; or convey any express or implied representation that, if made by the manufacturer, seller or service provider, constitutes an unfair commercial practice; or intentionally hides important information. “
Like the Consumer Protection Act, provisions relating to misleading advertising and punishment for the crime are also included in various other laws and regulations, such as: B. The Drugs and Cosmetics Act 1940, the Drugs and Magical Remedies (Offensive Advertising) Act 1954, the Food Safety and Standards Act, 2006.
There are basically two categories of misleading advertising:
The first category of misleading advertising that violates the consumer’s right to information and choice. This includes all non-health-related or non-nutritional-related advertisements that violate a consumer’s right to information and can cause consumers financial loss or emotional distress. Some examples include: discount-related offers, advertisements for vehicles that misrepresent gas mileage, a face cream that falsely claims to remove wrinkles, and educational institutions that misrepresent affiliation or employment in their prospectus.
The second category of misleading advertising includes all health or nutritional claims, including advertising for cures and medicines with unknown values. This category of misleading advertising violates the right to safety and can have serious implications for consumer health. Some examples are: health devices of indefinite value and advertisements claiming to increase a person’s height.
Advertising Standards Council of India (ASCI) role as a self-regulatory body to curb misleading advertising
The Advertising Standards Council of India (ASCI) is a self-regulatory and non-governmental organization founded in 1985. The members of the council are renowned Indian companies that include advertisers, PR agencies, media and advertising agencies, other professionals related to advertising. It was set up to ensure that all ads are legal, decent, honest and truthful, as well as a sense of social responsibility to consumers and the rules of fair competition. The Ministry of Information and Broadcasting issued a notice in August 2006 stating that all television commercials in India are required to comply with the ASCI codes. This move made the Advertising Council more effective and noteworthy.
The main objectives of this self-regulatory authority are:
- Ensuring the truthfulness and honesty of the information provided by the advertisements and protecting consumers from misleading advertisements.
- To ensure that the advertising is not offensive and indecent to the general public.
- Protecting consumers from advertisements for products that are considered dangerous and unacceptable to society as a whole.
- Ensure fair advertising so that consumers are well informed about the choices in the market and maintain fair competition.
If an advertisement violates the codes above, the consumer or even an industry may complain to the ASCI. The Council urges consumers to report advertisements that are alleged to be unfair or misleading. ASCI will notify the advertiser upon receipt of a complaint and give them two weeks to respond. In addition, the Advertising Standards Council of India (ASCI) submits the complaint and the advertiser’s response to the Consumer Complaint Council for decision.
If the ASCI does not receive a response from the advertiser, the Consumer Complaint Council can make an ex parte decision. If the ad turns out to be misleading, the Complaints Board may ask the advertiser to change or remove it. In a report by the Economic Times, ASCI investigated complaints against 415 advertisements from December 2018 to January 2019. The Consumer Complaint Council took action against the advertisers after evaluating these ads. These offending commercials belonged to education, health, food and beverage, personal care and other categories.
Recently, during the ongoing Indian Premier League (IPL), ASCI had carefully monitored the liquor brand expansions occurring during the game and registered complaints against eight such advertisements in the past month that allegedly violated the ASCI codes. These advertisements concerned whiskey, beer and white wine brands. In all cases, ASCI notified advertisers within 24 to 48 hours and asked for a response.
ASCI codes and guidelines
ASCI’s codes and guidelines regarding brand extensions are:
- The brand extension of products such as alcohol, tobacco, etc. is considered genuine. It must be registered with a competent government agency such as India’s Food Safety and Standards Agency.
- In-store availability must be at least 10% of the availability of the leading brand in the category in which the product competes, or sales must be Rs 5 billion per year or Rs 1 billion per year in each state where it is sold Exceed year.
- It must have a proper certificate from an independent organization for such sales and distribution data.
If the advertisement does not meet the criteria or the data provided has not been certified by an independent body, the advertisement will be discontinued. It should also be noted that advertisers cannot show advertisements or even references in advertisements to products that are prohibited or prohibited by law.
Misleading advertising amid COVID-19
In the last few months, Covid-19 has developed into a conversation center among people. Advertising plays an important role in spreading awareness and information about the pandemic. However, those advertisers with the motive to make more profit link their products directly or indirectly to Covid-19 and make misleading and false claims in the advertisements. Some cases of misleading advertising in the past few months are:
The Dettol advertisement
In the present case, Hindustan Unilever, one of the largest hand washing companies, moved the court over a DETTOL advertisement by Reckitt Benckiser attempting to mock the effectiveness of Hindustan Unilever’s LIFEBUOY product. In order to promote hand washing and prevent the spread of the coronavirus, the plaintiff had advertised his LIFEBUOY soap. The defendant company then broadcast an advertisement about its DETTOL handwash, which was more effective than a normal soap that was shown as red soap. Hindustan Unilever alleged that the defendant tried to degrade its product (LIFEBUOY) as its red color and shape could be seen in advertisements.
The Bombay High Court in the complaint found that the complaint contained false allegations and subsequently Reckitt Benckiser removed the complaint.
Arihant’s coronary resistant mattress
Recently an FIR was filed against the Arihant mattress, a private company for their advertisement in a Gujrati newspaper for “anti-corona mattress”. The owner has been booked under Section 505 (2) of the Indian Criminal Code, which covers the Public Mischief Statement as well as various other sections of the Medicines Opposition Act and Civil Protection Act. The said advertisement was completely false and misled people while the country is going through a pandemic.
Hindustan Unilever hand sanitizer advertisement
Under the Drugs and Cosmetics Act of 1940 and the Drugs and Cosmetics Rules of 1945; The Drug Controller General of India (DCGI) issued Hindustan Unilever a notice about exhibition reasons for its product, claiming to have immunity and prevent Covid-19. It claims to improve immunity through the use of its hand sanitizer, which in turn prevents the virus.
According to the DCGL, Section 3 (b) of the Drugs and Cosmetics Act 1940 states: “Immunity is a condition of being able to withstand a particular disease, particularly by preventing the development of a pathogenic microorganism or counteracting the effects of its products. In addition, the HUL claim attracts the definition given.”
In addition, hand sanitizer was licensed under the Drug and Cosmetics Act of 1940 as a “cosmetic” but is now advertised as a “drug,” which was a clear violation of the law.
As a result, DCGL claimed that Lifebuoy’s advertisement of the hand sanitizer was false and misleading as the product failed to boost immunity to viruses.
In order to increase their capital, the big brands try to mislead consumers through ambiguous, false, and unfair advertising without providing satisfactory evidence to support their claims. This creates an overly positive assessment, but later turns out to be a negative experience for consumers. Misleading advertising affects a consumer financially, mentally, and even physically. This negative experience can spread fear among consumers, especially at times like this current pandemic. Because advertising effectively markets a product and has a powerful impact on people, advertisers acquire and should adhere to a moral obligation to practice the Code of Ethical Advertising. Therefore, ASCI plays an important role for consumers in protecting them from misleading advertising.