Remember the fast-paced oral declarations at the end of mutual funds advertisements? Notice how the oral declarations have slowed down? It has. Advertisements in India are going through a tectonic shift in terms of its legalities. With the recent Consumer Protection Act, 2019 and the Central Consumer Protection Authority (CCPA) functioning under it, supported by ministries like Ministry of Information and Broadcasting (MIB) and self-regulatory authorities like Advertising Standards Council of India (ASCI), there has been substantial development and clarity in the legislation pertaining to advertisement in India. This article explores the most recent development in advertisement laws by the Supreme Court.
Supreme Court’s Order
In the case of Indian Medical Association & anr v. Union of India & ors., also famously known as the Patanjali case, the court heeding the fact that there are numerous misleading advertisements that carry on accountability on the part of the advertisers, the court deemed it appropriate to implead the Ministry of Consumer Affairs, Ministry of Food and Public Distribution, MIB and Ministry of Electronics and Information Technology as parties in this case to examine the actions taken by them to prevent abuse of various laws related to consumers and advertisements. After analysing the submission from these ministries, the court opined that the said ministries must establish and promote a mechanism which motivates a consumer to file a complaint and for the complaint to be logically concluded as opposed to the current scenario where the consumer is simply updated that the complaint has been forwarded to the concerned authority and leaving the consumer clueless about the outcome of his complaint. The court, taking the matter into its hands, with the intent to fill the lacuna of any effective mechanism provided by the legislature for the adherence of ‘The Guidelines for Prevention of Misleading Advertisement and Endorsement of Misleading Advertisements, 2022’ (issued by the CCPA) invoked its constitutional powers for the protection of the fundamental right to health of the citizens which includes consumer rights.
The court in its order dated May 7, 2024 in the Patanjali case, had directed that prior to any advertisement being made public, the concerned advertiser or advertising agency must submit a self-declaration form in line with the ‘Advertising Code’ enshrined under the Cable Television Network Rules, 1994. The said declaration form should certify that the advertisement does not contain any misleading claims and are in compliance with applicable regulations. The said declaration for advertisements should be uploaded on the relevant portals under the MIB. The obligation to upload such declarations lies with the concerned advertiser or the advertising agency. It is important to note that this direction is to be treated as a law directed by the court in exercise of its constitutional powers.
Response From the Industry
Industry stakeholders have expressed concerns about the immediate implementation of the court’s direction. In a joint effort, the Indian Society of Advertisers (ISA), Indian Broadcasting and Digital Foundation (IBDF), and Indian Newspaper Society (INS) have suggested that there should be a longer duration provided for this direction to be implemented.
The ISA is of the opinion that uploading the self-declaration form along with details of the advertisements will affect the confidentiality of the concerned product in the advertisement as the details required to be covered under the declaration includes the brief of the advertisement, claims made about the product, script of the advertisement, etc., which concern the advertisers as there is an apprehension of the competitors accessing such information which would be of confidential nature for the advertiser and also paramount to their marketing plans and campaign dates. This could majorly impact the business of the advertisers as the advertisers could potentially loose the competitive edge in marketing their products. Additionally, the ISA also believes that the disclosure of such information will greatly impact the launch of the concerned product. How these issues are to be addressed is yet to be seen.
On a positive note, this has been welcomed by the supporters of consumer rights. This direction, a law, nevertheless is a significant step in pursuit of prevention of misleading advertisements by putting the advertiser/advertising agencies under a spotlight through this declaration. This declaration would make the advertisers think twice about the claims in the advertisement.
Conclusion
This new law declared by the court has brought the advertisers on their toes specifically for making claims in relation to their products. The government authorities are keen on implementing measures to curb misleading advertisements and allow for more transparency for the consumers. This direction is a huge development towards the goal of consumer protection. While the government is trying to do its job to protect consumer rights, it is equally important for the consumers to make informed choices. The fact that the apex court had to exercise its constitutional powers under Article 32 read with Article 141 underscores the importance to pay attention to the advertisement laws in India.
Authors: Lokesh Kansal, Urvashi Joshi & Malabika Boruah .