Curbing Misleading Advertisements – A Birdview of the New Guidelines
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The Consumer Bill of Rights lists 6 important Consumer rights which are the Right to Safety, the Right to be Informed, the Right to Choose, the Right to be Heard, the Right to Seek Redressal and the Right to Consumer Education.
As advertisements are an important and significant source of information related to the product and service quality & purpose, it becomes necessary that they give correct and true information to the intended consumer and are not mere baits to trap consumers to make them part with their hard earned money in exchange for poor products and services. Since a long time, a need has been felt for strict guidelines which will bind the advertisers to enable the dissemination of correct information to the consumers.
In order to curtail the menace of false & misleading advertisements, the Central Consumer Protection Authority working under the guidance of the Ministry of Consumer Affairs, Food and Public Distribution issued the ‘Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022’ dated 09.06.2022 effective 10.10.2022 (hereinafter referred to as the “Guidelines”). The primary objective of these guidelines was to curb misleading advertisements and protect the consumers who are inadvertently exploited or affected by them.
Non-misleading and valid advertisements
Clause 4 of the Guidelines, provides for the general conditions that seek to make the advertisements, non-misleading and valid. The Clause inter alia provides that advertisements that contain truthful and honest representation, do not exaggerate, or mislead the extent of risk that the product may pose to the consumers, are valid advertisements.
By way of the present guidelines, the concept of ‘bait advertisements’ has also been introduced. The provisions dealing with, ‘Bait Advertisements’ include Clause 2(d) wherein the latter have been defined as “advertisement in which goods, product or service is offered for sale at a low price to attract consumers” and Clause 5, which seeks to lay down certain conditions that would help in classification of certain advertisements as ‘Bait’. Clause 5 casts a duty on the seller to avoid misleading the consumers and to ensure the adequate supply of goods and services to meet the foreseeable demand that may be generated through the advertisement.
The term, ‘Surrogate advertisement’ has been defined under Clause 2(h) as “an advertisement for goods, product or service, whose advertising is otherwise prohibited or restricted by law, by circumventing such prohibition or restriction and portraying it to be an advertisement for other goods, product or service, the advertising of which is not prohibited or restricted by law”. Furthermore, Clause 6 restricts the indirect solicitation of purchase of products which cannot be directly advertised, e.g. liquor brands cannot advertise soda under the brand name of the Liquor.
Free claim advertisements
Clause 7 of the Guidelines has laid down that in case of free claim advertisements, the seller or service provider cannot claim any further charges from the consumer other than the unavoidable cost of responding to the advertisement and the delivery of such item. Any other charges would have the effect of the removal of such goods, products or services, out of the ambit of a free claim advertisement.
Children targeted advertisements
Clause 8 imposes limitations on the advertiser in effect putting restrictions on advertisements targeted towards young children and ensures that suggestions made or behaviours depicted in such advertisements do not affect their impressionable minds as well as their health.
Advertisements Prohibited by Law
Clause 9 mentions that any other advertisement which promotes any product or services that are prohibited under any law is not permitted.
Guidelines not in Derogation of Other Laws
Moreover, the Guidelines have made it clear under Clause 10, that where the advertisement is guided by any other law, the provisions of this Guideline will be in addition to such law(s) and not in derogation of it.
Disclaimers in Advertisements
Clause 11 provides the regulation for disclaimers to be in sync with the advertisements.
Duties of Manufacturers, Service Providers, Advertisers and Advertising Agencies
The Guidelines have mandated through Clause 12, that the manufacturers, service providers, advertisers, and advertising agencies would be responsible for the telecast of the advertisement. Any sort of objectionable content which is clearly ascertainable, reference to any person, firm, or institution in a manner that ridicules them, dissemination of such visual representation which is capable of misleading the consumers, or misusing the trust of the consumers is explicitly prohibited. However, it is provided that such exaggerations which are intended to attract or amuse or which are humorous at the first instance and are not interpreted in their literal meaning, are acceptable under the said Guidelines.
Endorsements in Advertisements
Clause 13 provides the provision related to the endorsements of the advertisements. The endorsements that are to be made in an advertisement should also be genuine, and one that should confirm the authenticity of the advertised product. It further states that professionals of any nationality whether Indian or foreign are prohibited from advertising products or services of goods where such advertisements are legally forbidden.
Further, Clause 14 mandates that the connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement would be disclosed to the Consumer.
The introduction of the Guidelines on Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, can be specified as a major step by the Central Consumer Protection Authority to regulate Advertisers and Endorsers. The enforcement of these guidelines will have a positive effect in restraining the advertisers from making extravegent and false claims in relation to the goods, products or services, thereby keeping the descriptions of such products, transparent.
Furthermore, by extending its application towards all advertisements, regardless of their form, format, or medium, along with the manufacturers, service providers and traders, the application of guidelines is wide enough to make all advertisements accountable for their claims.