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Misleading Advertisement


Introduction


The influence of advertisements on customer choice is undeniable. And it is this fact that makes it critical that advertisements be just and fair. Misleading and false commercials are not only dishonest; they distort competition and naturally, consumer choice. 

False and deceptive advertisements in fact violate several basic rights of consumers: the right to information, the right to pick, the right to be protected against dangerous products and services as well as unfair trade practices. 

Since advertisements are basically intended to promote a product or a service, one does see some exaggeration in the manner in which they extol the value of the product. 

Nevertheless, when it goes beyond that and intentionally utters a falsehood or attempts to misrepresent facts thereby deceiving the consumer, then it becomes objectionable.

What is misleading advertisements?

Under the Consumer Protection Act 2007, promotion is viewed as misleading whether it entails false, deceptive or misleading information that is very likely to cause the average user to act in ways they might otherwise not. 

Advertising might also be considered misleading if significant information that a typical consumer should make an educated choice will be left out. 

Misleading advertising covers types of claims made direct to customers by producers, distributors and retailers, in addition to in advertisements, catalogues, blogs etc..

When does an Advertisement become"Misleading"?

• When an edible oil advertising Provides you the belief That you are free of heart problems so long as you are using that particular oil, then it's misrepresenting facts.

• Once an advertisement of a water purifier that filters Only bacteria (rather than viruses) asserts that it gives 100 percent secure water, then it is a false announcement.

• If a cell phone service provider promises STD calls for 40 paise a minute, but omits to say that this speed is applicable only when calls are made to numbers serviced by exactly the same provider, then it constitutes misrepresentation.

• When a producer claims that the refrigerator marketed He is the very best or that it retains the food inside germ-free, which claim ought to be backed by sufficient information to substantiate the claim. If not, it turns into a false announcement.

• Once an advertisement to get a detergent says that it may Eliminate dirt in only one wash- it should be able to do just that and the manufacturer should be able to prove this. Otherwise, it is an incorrect statement or a false advertisement.

• When an advertisement promises to give you a"free gift" Each single time you purchase the advertised product, the completely free gift should truly be so. If the maker is recovering either fully or even partially, the expense of the so-called free gift, then the ad gets untrue and deceptive.

• If a merchant claims that he is offering a special Discount his goods as part of a festival celebration, while he is really using the festival as an excuse to get rid of old and outdated products, then he's deceiving consumers.

• When a toothpaste ad States it prevents Cavities, one anticipates that the manufacturer to have the data to prove this. If he neglects to do that, then he is making an unsubstantiated claim or a false statement.

• If an ad for a face cream asserts that it Removes dark stains on the face and also prevents them from coming back, the producer should be able to prove this. Or else, it's a deceptive advertisement.

• Even reducing crucial information about the product to Minute letters at the base of the advertisement could be termed as an unfair Trade practice, particularly if such information isn't intelligible to the consumer.


WHAT DO I DO AS A CONSUMER WHEN I SEE SUCH ADVERTISEMENTS?

Together with a copy/video/audio of such advertisement through the internet portal of the GOI in http://gama.gov.in to deliver it to the notice of this Government.

How to Register a Misleading Advertisement complaint?

Step 1: A one-time registration is required for lodging a complaint. For Registration, visit the internet portal http://gama.gov.in and click on the login link and then enroll yourself, verify through your email / phone and make user id and password.

Step 2: Using this user identification and password, input into the Portal site and fill required particulars attaching required audio/video/paperclip / photograph (if available).

HOW DO I TRACK THE STATUS OF MY COMPLAINT?

Login with user id and password and you are able to Track the status.

Your complaint will be forwarded to the concerned authority for Action against the misleading advertisement.


WHO ARE THE AUTHORITIES?

The Government Departments / Self-regulating Authorities / Ombudsmen are the Government authorities.


MISLEADING ADVERTISEMENTS: LAWS AND REGULATIONS



There are a number of Laws and Regulations that prohibit False and misleading advertisements. All these have been enacted to protect the customers from several kinds of exploitation. The major problem relates with the successful execution of these Acts, as a result no or little action is obtained.

The following are some of the important ones:

1. Medication and Magic Remedies (Objectionable Advertisements) Act



The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, basically prohibits four kinds of advertisements pertaining to drugs and magical cures. Part 3 of the Act states that no Individual shall take any role in the publication of any advertisement promoting a drug or Causing the use of a medication for:

(a) The procurement of menopause in women or prevention of Conception in women.

(b) The maintenance or improvement in their potential for individual Being for sexual pleasure.

(c) Correction of degenerative disorders in women.

Section 3 further Prohibits any advertising promoting medication for the diagnosis, cure, mitigation, prevention or treatment of any disease, disorder or condition defined in the Program and the program lists numerous diseases, disorders or conditions like diabetes, hepatitis, cancer, fevers (generally ), obesity, rheumatism, impotence, high or very low blood pressure, feminine diseases, epilepsy, height of men, thyroid disorders, atherosclerosis, sterility in women, dropsy, etc..

Section 4 of the Act prohibits advertisements Concerning some Drug if the advertisement contains any matter which directly or indirectly provides a false belief concerning the real character of this medication or creates a false claim about the medication or is otherwise false or misleading.

Section 5 of this Act prohibits advertisements of magical Remedies for treatment of particular diseases and disorders.

Earlier, AIDS/HIV was not at the Program of the Act. But Afterwards, the Union Ministry of Health contained HIV/AIDS too in the program to the Rules. What prompted this movement was that the Kerala High Court's order in 2002, contrary to the manufacture, sale and promotion from this Ayurveda medication Immuno QR as a certain cure for AIDS. In reaction to public interest lawsuit, the Bombay High Court had restrained Mr. Majid from making"tall and unfounded claims" about the medication.

The problem with this Law is that it is fairly outdated and is insufficient to deal efficiently with the problem because it exists now. In any case, the law would be a lot more successful if it prescribed because of penalty, corrective advertising and heavy monetary penalties, rather than imprisonment or fine or both. But as it exists today, it's enforcement by the State drug control authorities- having a few exceptions- is bad because one sees some of such commercials, promoting native cures or medicines for Many Different ailments listed in the Program of this Act

One has an Notion of the Amount of such advertisements that Appear in the press in breach of this law, from a newspaper report which Com) that, quoting a source in the Food And Drug Administration, Maharashtra, said that in July the FDA had filed 67 Complaints at police stations across the state under various parts of the Medication and Magic Remedies (Objectionable Advertisements) Act, 1955. Is one of the few enforcement agencies in the nation which takes this law seriously.

2. The Cable Television Network Regulation Act and Rules

The Act mandates that advertisements transmitted through The cable tv system adhere to the Advertising Code devised below it. 

Section 6, Chapter II of the Cable Television Networks (Regulation) Act, 1995 says that"No person shall transmit or re-transmit through a cable support, any ad, unless such advertisement is in conformity with the referenced advertising code. 

Even the Advertising Code, brought up under the Cable Television Network Rules, 1994, stipulates that advertisements must conform to the applicable laws of the country, the product or service advertised shouldn't suffer from any defect or lack as mentioned from the Consumer Protection Act, 1986 and shouldn't include references which are very likely to direct the people to infer that the product advertised or any of its ingredients has any specific or supernatural or miraculous property or quality which is difficult of being proved.

Informed on August 2, 2006, incorporated the ASCI code. The change states that"(9) No advertisement which violates the Code to Self-Regulation in Advertising, as embraced by the Advertising Standards Council of India (ASCI), Mumbai, for public exhibition in India, from time to time, shall be carried in the cable support". 

Under the Act, any 'Authorized Officer', either the district magistrate or even the sub divisional magistrate or the commissioner of police or any other officer notified by the fundamental or the state authorities can take action against any violation of the Advertising Code.

Being utilized by the cable operator for managing the cable TV system. Chapter IV of the Act, below ‘Offences and Penalties', prescribes for first offence, imprisonment which might extend to two years or fine that might extend to Rs.2000 or both. For every subsequent offence, then it can go up to five years or Rs. 5000 or both.

The Act states that"No court shall take cognizance of any Offence punishable under this Act except upon a complaint in writing made by any authorized officer." The officer can also prohibit transmission/re-transmission of any programme or station if it is not in conformity with the Advertising Code. The Act also gives the central authorities the authority to regulate or prohibit transmission of such commercials or programmes.

The problem with this Law is the applying agency. This kind of advertisement code should be enforced through an independent regulator, like the broadcasting regulator. In Australia, for example, the Broadcasting Regulator appears at crimes of advertisements codes on tv. 

In any instance, this law has been barely enforced because one sees any variety of highly misleading advertisements on the television, intentionally promoting 'miracle' products- concoctions of questionable efficacy that bring down your weight without any effort and with no unwanted,'contraceptive pills' that improve the sexual powers of men, potions that heal you of many different diseases - Ironically all them violate the Cable Television Network Regulation Act (or even the Advertising Code) and nevertheless they continue to dominate the display on specific channels.

Even though the Advertising Code was invented under the Requirements in 1994, it was just in September 2005 the union ministry of Information and Broadcasting issued an order for establishing state and district level monitoring committees to enforce the Act.

And then almost 3 years after (in February 2008), saying The enforcement of this Act in many portions of the nation was not satisfactory either because of absence of clear understanding of the use of the District Monitoring Committees or a suitable mechanism to apply the provisions of the Act, it issued guidelines to specify the use of the district and state monitoring committees to 'ensure effective functioning of the committees'.

Besides specifying the constitution of the country level Committees, the instructions given that a criticism cell led by a nodal Officer ought to be created at the district level and this should be given Wide publicity so that the people can lodge complaints concerning the content. 

In Terms of complaints pertaining to violation of programme and advertising codes Against national channels, such complaints must be offered to the I&B Ministry through the chief secretary of the country, '' the ministry stated.

3. Food Safety and Standards Act, 2006

This relatively new law includes a provision to deal with false and misleading advertisements pertaining to meals. Here, the term advertisement comprises publicity and advertisement via all media, including the electronic media. Even promotional material labels, wrappers and statements are attracted under the definition of advertising.

Section 24 of the Act (Limitations of advertising and prohibition regarding unfair trade practices) claims that:

(1) No advertisement shall be produced of any food which is deceptive or ineffective or contravenes the provisions of the Act, the regulations and rules made there under.

(2) No Individual shall engage himself in any unfair trade practice such as purpose of promoting the purchase, supply, consumption and use of articles of food or embrace any unfair or deceptive practice including the practice of creating any statement, whether or not in writing or by visible representation which --

A. falsely represents that the meals are of a particular standard, quality, amount or grade-composition;

B. produces a false or misleading representation concerning the need for, or the usefulness;

C. contributes to the public any promise of the efficacy that is not based on an adequate or scientific justification :

Provided that where a defense is raised to the effect which such assurance is based on scientific or adequate justification, the burden of proof of this defence shall lie about the person raising such defense. Section 53 provides for penalty for deceptive ads, extending to'10 lakhs.

Problem with the law: However, there is no provision here for corrective advertisement, which is very unfortunate. As I have repeatedly said earlier also, it's simply corrective advertisements that may wipe out all the messages carried by fictitious and misleading ads and also for any legislation to effectively protect the interests of customers, there should be no provision for directing issuance of corrective advertising and this provision ought to be efficiently enforced.

4. Medicines/Drugs and Cosmetics Act, 1940

Rule 106 of the Drugs and Cosmetics Rules, 1945 implanted beneath the Drugs and Cosmetic Act describes"Diseases that a medication might not need to prevent or heal"-

A. No medication may claim or purport to prevent or heal or might communicate to the planning user any concept it might block or heal, one or more of those diseases or disorders defined in Schedule J.

B. No medication may claim or purport to procure or help to procure or might communicate to the planning user any concept it might procure or help to procure, miscarriage in girls.

Schedule J comprises more than 50 diseases, ailments and conditions like AIDS, hereditary disorders, hair loss, disease, diabetes, and improvement in height of kids and grownups, improvement in eyesight, myocardial infarction such as obesity, spondylitis, stones from the gallbladder, and esophageal veins, etc..

5. The Bureau of Indian Standards Act, 1986

The Bureau of Indian Standards (Certification) Regulations,says:

(g) The licensee shall state in documentation or Through advertising media that the organization or place to which the permit applies have been analyzed and approved by the Bureau. In such advertising the Standard(s) on Management Systems(s) for which a license has been granted is/are to be stated and any other degree (s) of approval than allowed isn't to be implied.

(h) A licensee That Has Been granted a license for management System certification shall not claim or suggest that the product produced by Him has been licensed or approved by the Bureau unless he's holding a valid Permit for that product under the recognized product certification strategy of the Bureau.

Two laws that strictly prohibit certain advertisements and are enforced better are:

6.The Infant Milk Substitute, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 and the Infant Milk Substitute, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Amendment Act, 2002 

This law prohibits advertisements and promotion of baby Milk substitutes, feeding bottles, and infant foods because their promotion makes a misconception and thereby misleads consumers into thinking that infant foods or milk replacements sold in the market are as great or better than mom's milk.

Section 3 of the Act says that No Individual shall (a) advertise Or get involved in the publication of any advertisement, for the distribution, sale or supply of infant milk substitutes or feeding bottles or infant foods (b) provide an impression or create an impression in any way that feeding of baby milk substitutes and infant foods is equal to or better than mom's milk.

7. Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003


The legislation clearly prohibits advertisements/promotion of cigarettes and other tobacco products. It says:

Part 5 - Prohibition of advertising of cigarettes and Other tobacco products- (1) No person engaged in, or purported to be more engaged in the production, distribution or supply of cigarettes or any other tobacco products shall advertise without a person having control over a medium shall cause to be marketed cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement that directly or indirectly proposes or promotes the use or consumption of cigarettes or any other tobacco products.

(2) No person, for any direct or indirect pecuniary advantage, May - (a) screen, cause to display, or permit or authorise to exhibit any advertisement of cigarettes or any other tobacco product; or (b) promote or cause to promote, or permit or authorise to sell a film or video tape comprising advertising of cigarettes or any other tobacco product; or (c) spread, cause to disperse, or permit or authorise to distribute to the public any booklet, hand-bill or document which is or that contains an advertisement of cigarettes or any other tobacco product; or (d) vertical, display, fix or keep upon or over any land, building, wall, hoarding, framework, post or structure or upon or at any car or will display in any way whatsoever in any place any advertising of cigarettes or any other tobacco product.

(3) No Individual, shall, under a contract or promote Or agree to promote the use or ingestion of(a) cigarettes or any other Tobacco product; or (b) any trade mark or brand name of smokes or some other Tobacco product in exchange for a sponsorship, gift, prize or scholarship given Or agreed to be given by another person.


MISLEADING ADVERTISEMENTS AND REGULATORS

Besides each of the legislation mentioned in the preceding Chapter, the regulatory agencies established under different laws also have devised regulations, rules and advertisement codes to make certain that advertisers do not mislead consumers through their marketing material, including advertisements.

1. Insurance Regulatory Development Authority

2. Telecom Regulatory Authority of India

3. Securities and Exchange Board of India

4. Reserve Bank of India

5. Medical Council of India


CONSUMER PROTECTION ACT TO CONSUMERS' RESCUE



While all these laws are designed to curb deceptive and false Advertisements are enforced by different enforcement agencies/ authorities, the Consumer Protection Act is the only legislation that provides the customer the right to seek redress against these advertisements, including reimbursement for any loss or injury caused as a consequence of such advertisements. 

The legislation provides for remedy against unfair trade practices and also a false or misleading advertisement becomes an unfair trade practice under the provisions of the law enforcement.

In depth definition of unfair trade practice (see annexure I to allow the definition of p.52) and Section 14 deals with all the instructions that the court could give to take care of these kinds of practices and this also includes instructions to this advertiser to stop such commercials and to not replicate it. 

They are also able to award compensation for any loss or distress caused due to these unfair trade practices. They're also able to award punitive damages and expenses of litigation. However, most significantly, they could lead the contributor to issue corrective advertising.

Court states that the court could order"corrective advertising to neutralize The consequence of misleading advertising at the expense of the other party Responsible for issuing this kind of deceptive advertising". 

If so many misleading Advertisements are involved, this is definitely the most essential provision and may Really prove to be a deterrent. To effectively suppress misleading advertisements.


NCDRC and Misleading Advertisements


1. NCDRC cracks down on advertisements that mislead Consumers about fuel consumption of cars.

2. Making false claims about affiliation/recognition Constitutes unfair trade practice.

3. Guaranteeing tasks to attract students to instructional Courses and then backing out is an unfair trade practice.

4. Making false claims regarding professional qualifications and Misleading patients is an unfair trade practice.

5. Misleading ads by tour operators Cannot be condoned and Should be ceased: NCDRC.

6. Need to restrain Misleading Advertisements promising Weight Reduction: NC.

7. National Commission boils down on Surrogate Advertisements.

8. Making false promises to sell a product is obviously an Unfair trade training and reimbursement in such cases should be exemplary: NCDRC.

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