The 21st century is the age of media and advertisement. Advertising has become an inescapable part of our lives. You see advertisements while driving, walking, reading newspapers and magazines, watching television, listening to the radio, searching the Internet, as well as through communicating with others. Countless products and services are being marketed using attractive ads in the print, electronic and social media. In 2017, the Indian advertising industry is estimated to be worth ` 63,000 crore (US$ 10 billion), with both print and TV having a share of 38-40 percent each.
The role of advertisements
Advertisements (ads) play a major role in changing the behaviour and attitude of consumers towards the products. The advertisements not only change the way a product is consumed, but also alters the attitude with which users look at the product. It is a ubiquitously accepted fact that advertisement can bestow special attributes upon a product or service that it may have lacked otherwise. Advertising has a common goal of persuading target consumers to adopt a particular product, service or idea by creating an image in the minds of the potential customers. Advertising persuades people to buy a certain product; it brings goods to the attention of consumers. Therefore, the companies strive to make consumers aware of, be interested in, try, and ultimately adopt the products and services they have to offer. Given the frenetic pace of the current competitive environment, companies relentlessly bombard consumers with persuasive messages in attempts to create, reinforce, or alter attitudes, and subsequent purchase behaviours. With technological advances, Internet and mobile advertising are also experiencing astronomical growth rates. With individuals spending more of their time in the virtual sphere, advertisers are also migrating to where the consumers are.
Thus, the influence of ads on consumer choice is undeniable. However, advertising is not all a fair game. This is being misused by companies which float all sorts of false and misleading claims in the ads which are nothing but gimmicks for luring consumers. Today’s advertisements use tactics that are invasive and controlling, which is an attempt to exploit the public on the strength, reach and influence of the media. These confuse or mislead consumers about the nature, identity, or quality of goods or services. Unscrupulous advertisers will sometimes advertise products that are just too good to be true, and are very different in reality.
The misleading advertisements
Advertisements very often mislead the consumer and create unnecessary new needs, thereby promoting materialism and consumerism. Consumer vulnerability to deceptive advertising is particularly acute in the area of financial services, where the individuals often have little knowledge. Advertisers’ reliance upon the use of sexual imagery and text to attract consumer attention is increasingly common in today’s saturated media culture. Then there are deceptions associated with various forms of comparative advertising where claims present statements that may be misconstrued as indicating the superiority of the advertised brand. Misleading ads distort competition and violate the basic rights of the consumers. Besides financial loss, these misleading ads also pose a serious threat to the health and safety of people. Advertising also has negative effects on the values of society. Religious and cultural values are being eroded by the type of advertisements that are aired today.
An ad becomes false or misleading, when false or misleading statements are used in advertisingin an attempt to persuade the consumer to buy the product or service. Misleading advertising is any published claim that gives a consumer an incorrect understanding of the product. These use specific representational practices and produce meanings which cannot be found in reality. It creates false wants and encourages the production and consumption of things that are incompatible with the fulfillment of genuine and urgent human needs. Consumers have the right to know what they are buying. All necessary information on the label as well as in the content of the advertisement should be correct. An advertisement of Mcvities Digestive biscuits made the claim “whole wheat” and “Yeh habit hai fit”, giving an impression that the biscuit is made of whole wheat, and it is a good habit to eat biscuits and would contribute to physical fitness, whereas the biscuit had maida as a predominant ingredient; such claim was held by ASCI (Advertising Standards Council of India) as misleading and ambiguous. An advertisement of Amul Butter claimed to be a rich source of Vitamin A and stated that “Eat milk with every meal and live every day, worry-free”. The latter part of the statement was considered to be misleading by implication, as it was encouraging excessive consumption of butter which may not be advisable from the health point of view. Students are being lured by various private institutions by creating a false impression of facilities, placement and packages. One such ad by the Jaipuria Institute of Management, Lucknow, promising “Near 100% Placement with average package of ` 5.68 lac and highest package of `13 lakh”, was not substantiated with authentic data, and was held misleading.
The misleading nature of advertisements depends on a set of criteria, the characteristics of the goods or services (availability, nature or composition, method of manufacture or provision, origin, etc.),the results to be expected from their use, and the results of quality checks carried; the price or the manner in which the price is calculated; the conditions governing the supply of the goods or services; the nature, qualities and rights of the advertiser (identity and assets, qualifications, intellectual property rights, etc.). Advertisers of anti-ageing creams, complexion improving creams, weight loss programmes, anti-dandruff shampoos, and manufacturers of vitamins or dietary supplements are usually guilty of making exaggerated product claims. Indians have an obsession for fair complexion, and the companies are capitalising on this psyche. Roop Mantra advertised ayurvedic creams, capsules and herbal face wash, claiming these are “helpful in protecting from dark complexion, scars, wrinkles, pimples and dull skin, which was found to be unsubstantiated and misleading. Many such health and beauty products are being advertised with exaggerated claims to attract consumers and have been found to be violation of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and other laws.
In several advertisements it is stated that ‘conditions apply’, but these conditions are not stated or a small asterisk is put and the conditions are mentioned in small fonts which go unnoticed. Not disclosing material facts amounts to deception. Such incorrect and wrong information violates consumers’ right to information. As the consumers’ choice and decision are based on the information which he gets, such deceptive advertisements also violate consumers’ right to choice. There are various misleading ads regarding the health cures and drugs of questionable efficacy and health gadgets of unknown value. This class of advertisements is the most dangerous, as they can also have a severe repercussion on the health and safety of the consumer, and hence violate consumers’ right to safety. The false and misleading advertisements now have a wider canvas. Earlier, the misleading advertisements were restricted to print and other conventional media such as pamphlets and hoarding, but today the canvas is widespread; there is proliferation of advertisements promoting health cures and ‘beauty’ gadgets of unproven value by celebrities on various television networks. Due to the wider reach and impact of television, these ads are influencing a larger number of people urban and rural, literate as well as illiterate.
Freedom of speech?
Article 19(1)(a) of the Constitution of India protects the right to freedom of speech and expression, which is also extended to advertisements. Besides this, there are provisions in various laws to deal with misleading advertisements pertaining to diverse areas like: Drugs and Cosmetics Act, 1940; Emblems and Names (Prevention of Improper Use) Act, 1950; Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954; Young Persons (Harmful Publications) Act, 1956; Indecent Representation of Women (Prohibition) Act, 1986; Cable Television Networks (Regulation) Act, 1995; Food Safety and Standards Act, 2006 etc. Section 2(1) (r) of the Consumer Protection Act, 1986, gives a comprehensive definition of Unfair Trade Practices (UTPs) which includes within its ambit misleading advertisements. Consumer forums can give directions to the advertiser to discontinue such advertisements and not repeat it, and can award compensation for any loss or suffering caused on account of such false advertising. Most important, they can direct the advertiser to issue corrective advertisement to neutralise the effect of misleading advertisements at the cost of the opposite party responsible for issuing such misleading advertisements.
The ASCI, a voluntary body, was established in 1985 to promote responsible advertising and enhance public confidence in advertisements. To regulate advertisement in India, ASCI has adopted a code for self-regulation in advertising, which applies to all involved in the commissioning, creation, placement, or publishing of advertisements. If a consumer or even an industry, feels that an advertisement contravenes the code or is of the view that an advertisement could be false or misleading, a complaint can be sent to ASCI.
The Department of Consumer Affairs in its endeavour to address the problem of misleading advertisements has launched a dedicated online web portal “Grievances against Misleading Advertisements (GAMA)” in March 2015, in partnership with the Advertising Standards Council of India (ASCI). Any consumer in any part of the country can register on this site and can lodge a complaint against misleading advertisements. The department has also constituted an inter-ministerial group to tackle the menace of misleading advertisements. This group has power to take suo motu action against errant advertisements and also power to withdraw them. Besides this, the government has introduced the Consumer Protection Bill, 2015, in the Parliament, which has certain provisions to deal effectively with misleading ads. The new Bill proposes to hold celebrities liable for misleading advertisements. Besides this, it also proposes to establish a Consumer Protection Authority to suo motu take cognizance of consumer issues including misleading advertisements.
[/column][column size=”4/5″]
Dr. Sapna Chadah
Dr. Sapna Chadah is currently working as Assistant Professor in Constitutional and Administrative Law at the Indian Institute of Public Administration, New Delhi. She holds her Masters in Law (LL.M) from University of Delhi, and a Ph.D from Jamia Millia Islamia, Delhi. Her major areas of interest include Constitutional Law, Administrative Law, Consumer Protection Law and Policy, Environmental Management, Laws in Urban Management, Regulation of Service Sectors and Privatisation. She has nine books and four monographs to her credit, and has published more than 30 papers in journals of repute. [/column]