Advertising – this has a crucial role in all our lives which goes unnoticed and that we are all unaware about it.[1] The society meets all of it demands by purchasing its needs and wants. Now how does one know which product to buy and for that matter how does one know if that product even exists? Companies use this tactic known as advertising. Their products are all advertised, and companies make sure a large section of the society, who their audience is, gets to know about the product. Advertising plays a key role in marketing as most customers get lured into buying a certain product depending on how it is advertised. Sometimes the product being advertised may not even be of use to us, but when the advertisement is showcased in a very convincing way, you might as well want to give it a try. Thus, we are all somewhere and somehow victims of advertisements.

Advertising is the culprit of an array of signs like economic waste. The main issue in the contemporary business environment is deceptive advertising. To overcome this, we need to build an effective defence not only against such misleading ads but also bring more awareness among people and educate them.

How do we know if an advertisement is misleading us?

When an advertisement of an edible oil is shown in such a way that one is free from heart problems if they consume this oil. This comes under misrepresentation of facts as the consumers are being deceived.

The Indian legislation has provided for deceptive advertisement in various laws and a few of them are discussed in this paper.

The Monopolies and Restrictive Trade Practices Act, 1969

This Act before amendment i.e. the MRTP Act, 1969[2] only had certain provisions that deal with the monopolistic and restrictive trade practices. The Amendment made in 1984 provided specifically for ‘unfair trade practice’, the sole purpose for this being to curb the practice of advertising becoming deceptive and counter-productive only and not to disturb healthy advertising.

In a landmark case of KLM Royal Dutch Airlines v. Director General of Investigation and Registration[3], the Honourable Court held that each case differs from another in what constitutes false, deceptive, and misleading advertising. The court held that any advertisement made with an intention to mislead and lure the consumer into buying would fall under the category of misleading advertisements. Few advertisements in which certain crucial information that must be disclosed to the buyer before purchasing has not been disclosed, also falls into the category of deceptive advertisements.

In the case of Lakhanpal National Ltd v. M.R.T.P. Commission and Another,[4] the Supreme Court threw light upon the concepts of false, misleading, and deceptive advertisements that have been provided in Section 36 A of the MRTP Act. Lakhanpal industries, which entered a collaboration, in one of its advertisements showcased that the batteries were made in collaboration with Panasonic. The MRTP Commission, when filed a complained, concluded that this act is an unfair trade practice. The Supreme Court, on appeal, struck down the precedent judgment and said that if there is any doubt regarding whether the advertisement falls under the ambit of deceptive and misleading, the test which confirms is if there is a deceptive or a misleading statement.

Consumer Protection Act, 1986

The MRTP Act, 1969 when replaced by the Competition Act, 2002 all the related subject matter was divided amongst the Competition Act and the Consumer Protection Act. section 2(1)(r) of the Consumer Protection Act, 1986[5] adopted the Section 36A of the MRTP Act and any case concerning the unfair trade practices are now addressed to the Consumer Redressal Commissions rather than what was given under the MRTP Act i.e. the MRTP Commission.

When any issue pertaining to the advertisement claim arises, there must be a proper investigation that has to be carried out. For example, when a complaint that contaminated water has been soled is lodges, there must be a thorough investigation to find out if all the other packs are also of similar nature.

Previously, the MRTP system had the authority and was in charge to carry out the inquiry and the investigation. But after the MRTP Act has been distributed into the Consumer Protection Act, 1986 and the Competition Act, 2002 the authority of inquiry and investigation has been given under the Competition Act and the Consumer Court thus would not have the jurisdiction to carry out any investigation.

The Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954

Section 4 and Section 5 of this specific Act[6] provides for the deceptive and misleading advertisements. The main goal behind this enactment is to put an end to such misleading advertisements for once and for all. The Act specifically prohibits deceptive advertisements related to drugs and magic remedies that are used to treat certain diseases and illnesses. Section 3 of the same Act enlists the exact diseases and illnesses. The Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 has also included certain guidelines that were drafted for prohibition of misleading advertisements. Any advertisement that directly or indirectly gives a false impression about the nature of any drug or medicine is strictly prohibited by this Act. An advertisement that makes a false claim or otherwise contains any false material is also banned.

Section 7 of this Act provides for the penalty cause and states that in the case of first conviction, imprisonment up to a period of six months and (or) or fine and in the case of a subsequent conviction, the period of imprisonment may go up to one year.

When these provisions are inter-related with the Section 468 A of the Criminal Procedure Code it is clear that any Honourable Court does not have the authority to take cognizance of any kind of a false, misleading advertisement and is hence punishable for a period of one year.

In the case Zafar Mohammad alias Z.M. Sarkar v. State of West Bengal, a doctor sent out loud advertisements that he can cure special ailments like aging, nerve defects, etc. with his own formula of medicines. The Supreme Court in this case held that the appellant has fallen prey to the unwariness of the advertisement and thus known to be deceptive in nature.

In another reported incident of Neeraj Clinic, Rishikesh, the accused advertised that he can cure deadly ailments as opposing the guidelines given under the  Drugs and Magic Remedies (Objectionable Advertisements) Act, In spite of the Indian Medical Association banning him in a pervious incident, he opposed law by posting false and deceptive advertisements.

The Food Safety and Standards Act, 2006

This is another legislation that addresses issues pertaining to misleading, false, and deceptive advertisements.[7] This law specifically has been passes to consolidate various food regulations that have been imposed in India.

This law has been drafted after taking into consideration the food standards of different nations across the globe. This Act ensures that the food products being sold to the consumers are not false and deceptive either in terms of quality or information given on the packet. This Act specifically mentions that any advertisement that contravenes or promotes the ill standard, ill quality or quantity is encouraged and is strictly banned by the Law.

According to the Section 24 of this Act, an advertisement is said to be deceptive or misleading when the seller falsely represents or with the intention of manipulating the buyer hides crucial facts. It is also said to be deceptive when the seller gives guarantee and fake promises to the consumer market regarding the product, thereby indirectly promoting his product.

The kind of advertisements in this sector i.e. the food and health sector must be given utmost importance owing to the safety of the individuals. In the food sector, misleading and deceptive advertisements have a massive impact on the children. They are vulnerable to such advertisements and are the main targets.

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

The provisions of this Act specifically prohibit both direct and indirect advertisements of tobacco or any products made from tobacco in any forms i.e. audio, visual or even print media. This is strictly banned in the country without exceptions.[8]

The Cable Television Network Regulation Act and Rules, 1955

This Act gives a special mention to the mode of advertisements. All companies must and should adhere to the Advertising Code under this Act. Section 6 of the Cable Television Networks (Regulation) Act, 1995 provides that no person can transmit or for that matter even re-transmit any advertisement through any cable service unless that particular advertisement confers to the advertising code that is prescribed under this very Act. [9]

For any matter under this Act to reach the Court, firstly an authorised person has the authority to prohibit the transmission and re-transmission of any content if it is not in conformity with the Advertising Code. This Act mentions that a Court can take cognizance of an offence that is punishable except if there is a complaint made in writing by any authorised officer. This Act also vests power in the Central Government to prohibit misleading, false, and deceptive advertisements.

Code for Commercial Advertising on Door darshan and All India Radio

The main provision given under this Code is that any advertisement made must be truthful in nature and must not by any chance deceive the general public by misleading them and making false and deceptive statements such as regarding the ingredients, origin, etc of the product or for that matter even the cost of the product.

The main loophole of this Act is that there is no legal backing to this Code and is thus not effectively enforced.

MISLEADING ADVERTISEMENTS AND REGULATORS

Having the required legislations to curb the issue of false and deceptive advertisements is not sufficient. In a diverse and a vast country like India, for the effective enforceability of such laws made, there must be certain regulatory authorities at different levels to ensure that the advertisers do not mislead and deceive customers and also to make sure that the law is abided by one and all.

The Advertising Standards Council of India (ASCI):

The ASCI is known to be a voluntary self-regulation council that has been registered under the Companies Act.[10] The main objective of this regulatory body is to safeguard the consumer market from the misleading, false and deceptive advertisements that are used to promote products that are usually not consumer-friendly in nature and proved to be hazardous to the society.

Insurance Regulatory Development Authority (IRDA):

The IRDA (Insurance Advertisements and Disclosure) Regulations, 2000 [11]

The regulations given by this concerned authority has laid down strict principles and guidelines on how the content of the advertisements and their compliance should be without deceiving the consumers. These regulations mandate that any advertisements pertaining to the insurance policy must in no case be misleading or deceiving. The regulator has the authority for the issuance of corrective advertisement in which the original advertisement was given.

Telecom Regulatory Authority of India (TRAI):

The TRAI has given certain guidelines specifying that the advertisements that are published by the telecom service providers must be highly transparent and there must be no room for ambiguity. All the essential information must be disclosed to the consumer without hiding any details and manipulating the consumer. Another important regulation issued by the TRAI mandates that the advertisements issued in any of the Indian languages must also have all the relevant disclosures in the same language.

Securities and Exchange Board of India (SEBI):

SEBI is a powerful regulatory body that has specific guidelines to ensure fair and just advertising in India. Firstly, the content of any advertisement must be clear and contain nothing but true facts. No part of the advertisement can be misleading, false, or deceptive whatsoever.  If any advertisement contains statements regarding the performance of a company with no supportive qualifying statements and exaggerates the scene more than what it truly is, it is said to be a deceptive advertisement.

This regulatory authority restricts models, actors, celebrities or any caricatured from being displayed in the advertisements in any way. They cannot be displayed on any offer documents either which is an indirect advertisement.

Reserve Bank of India (RBI):

Though the RBI is the superior supervisor of the financial system in India, it also exercises its authority over the advertisement sector through various financial institutions. The Reserve Bank has the authority to issue prospectus of the advertisement by soliciting the bank deposits. The Bank may also issue an order in public interest, if necessary, to regulate issues related to misleading and deceptive advertisements by cutting their funding.

Medical Council of India (MCI):

The Indian Medical Council Act specifies a Code of Ethnic Regulations, 2002 in which the Chapter 6 deals with unethical advertisements.[12] The Code restricts direct or indirect solicitation of patients by his/her doctor or by the hospital.

The treating physician may not make any use of his patients with an intention to advertise publicly or for that matter in any other mode that would draw attention to his professional specialities, skills and achievements that would result in his self-profit.

Consumer Protection Act – To rescue the Consumer

When we look at the law, there are so many legislations passes to put an end to misleading and deceptive advertisements for once and for all. But the Consumer Protection Act is the only legislation that entitles the consumer to seek redressal and fight for his rights against such deceptive advertisements. He may be given compensation under this Act and the relief varies in each case depending on the facts and circumstances of the case. Under this Law, a false, misleading or a deceiving advertisement falls under the category of an ‘unfair trade practice’.

NCDRC and Misleading Advertisements

The National Consumer Disputes Redressal Commission, which is a quasi-judicial body shuns down on any advertisements that are published with an intention to mislead consumers. This body has given specific guidelines about the fuel consumption of a vehicle.

The NCDRC, in the case of M.R. Ramesh V. M/S Prakash Moped House and Others,[13] said that the usage of any fine print to hide crucial information or facts that manipulate the customer will face consequences for the same. Thus, the NCDRC gave a loud and a clear notice to all the manufacturers and the companies that they should give a clear picture and details of the product without misleading them.

Making any sort of false claims or give out publicity regarding the affiliation of the educational institution is also misleading thus constituting an unfair trade practice. The Supreme Court in the case of Buddhist Mission Dental College and Hospital V. Bhupesh Khurana said that no institution can cause a havoc when the academic career of the students is concerned. No agency or firm can attract students by promising and giving fake guarantees of jobs in future. This too is considered an unfair trade practice.

Any kinds of misleading advertisements published by the tour operators and agencies regarding the fares of the tours, etc. which manipulates and misleads the customers must be stopped, as per the guidelines issued by the NCDRC.

Misleading advertisements that promote weight reduction which give false hopes to the customers is also an unfair practice and compensation in such cases must be exemplary.

Conclusion

We have seen that there is a plethora of laws that have say in the advertising market in India. Despite that we come across so many consumers who have fallen prey to the false and misleading advertisements. There is no law as such specifically framed to integrate the issues faced in advertising. Though there are various legislations addressing the issue of deceiving advertising, they are ineffective and inefficient in practice owing to which millions of victims get no justice. The present legislations are known to have an umpteen number of limitations thus becoming more inefficient in the justice seeking process. The Consumer Protection Act is proven to be a more consumer friendly legislation that allows the consumer to file a complaint in the Consumer Forum that aids in getting a speedy justice. Yet, this Court does not have any Suo moto powers and hence this law can be made more effective than what it is at today’s times.

Cable Television Networks (Regulations) Act, 1995 is also known to have specific provisions to curb such misleading and deceiving advertisements. Then why is it that there are millions of consumers falling prey to such advertisements? This is a clear indication that the present laws need to be made more efficient as it is the right of the consumer to seek redressal from the Court and to receive it.

Thus, there is a clear lacuna that exists in India concerning the legislations related to advertising. Specific laws for juvenile victims have also been framed such as the Young Persons (Harmful Publications) Act, 1956, the Infant Food Act, 1992. The Information Technology Act, 2000 has provisions that penalise any kinds of harmful transmissions of messages having ill content that would corrupt young minds.

Despite having innumerable legislations to curb misleading advertisements from being published, there are new threats each passing day. This must serve as a bell of reminder to all the concerned authorities to implement the current legislations of if need be, make amends to these legislations that can bring justice to all the victims who have fallen prey to these false and misleading advertisements.

What needs to be analysed first is whether there is a loophole in the legislation or if there is a loophole in the concerned authorities. The Advertising Standards Council of India, which is a self-regulatory body must pass strict guidelines to put an end to this nuisance for once and for all.