Mondelez India, the manufacturer of drinks like Bournvita and Tang, and an Instagram influencer by the name of Revant Himatsingka, who is popularly known as ‘FoodPharmer’, have been entangled in a sweet yet intense battle due to Himatsingka’s misrepresentation of Mondelez’s products, which in turn damaged their reputation. The controversy began in 2023 itself when the influencer put out a reel that criticized the sugar content and marketing claims of Bournvita, prompting them to reduce their sugar content by 14.4%. After these events, the Ministry of Commerce and Industry asked e-commerce platforms to take off drinks such as Bournvita from the “health drinks” category as there is no definition of the term under the Food Safety and Standards Act, 2006. The FSSAI also agreed with the decision and stance of the ministry.
However, the company did not perceive the content as criticism and thought that it was purely defamatory in nature that tarnished their reputation. To protect their interest, the company successfully sought an interim injunction against the influencer from the Delhi High Court on October 15 of this year, which prevented the influencer from broadcasting or publishing any content that could be disparaging to the company’s products. While this order was meant to protect the company’s brand and reputation, it raised several questions on content generated that can be considered as fair commentary.
In a further development, on October 23, 2024, Justice Amit Bansal clarified the injunction and emphasized that the injunction must not be considered as a gag order, and the influencer could make factual statements about Mondelez India’s products but must be non-disparaging in nature. While the clarification attempted to strike a balance between freedom of speech and protection under statutory law, it did not deal with what constitutes a clear criterion for distinguishing factual remarks from disparagement. Following clarification from the Delhi High Court on November 14, 2024, this case addressed the issue of compliance with the Court injunction in question. Mondelez claimed that the health influencer had violated the order by appearing on a podcast hosted by Ranveer Allahbadia on YouTube where he allegedly made disparaging remarks against Bournvita. Although Himatsingka had deleted the video from his social media, the podcast was still available on Allahbadia’s channel. On the next hearing date, Himatsingka’s counsel offered on behalf of his client to delete the problematic references from the podcast, demonstrating a willingness to comply with the Court’s order. As a result, the Court did not pass an injunction directing BeerBiceps, Ranveer Allahbadia to delete the podcast but Himatsingka was directed to remove the offending references himself. On November 27, 2024, the Delhi High Court disposed of an application filed by Mondelez alleging disobedience to the October 15 injunction noting that disparaging references made to Bournvita had been removed from the podcast. The Court granted both parties time to file their replies and rejoinders before scheduling the hearing for February 25, 2025.
Several cases in the past that have dealt with problems relating to influencers speaking about consumer goods and such cases have invariably addressed the free speech versus reputation issue. For instance, the Delhi High Court in the case of Zydus Wellness Products Ltd v. Prashant Desai, prevented an influencer from making and/or posting disparaging content about “COMPLAN” following a video put up on social media by the influencer wherein he criticized its sugar content without scientific evidence. The Court highlighted the responsibility of influencers to ensure factual accuracy, particularly when it concerns public health related matters, and ruled that the video misled consumers and harmed the brand’s reputation and image. Similarly, the Bombay High Court in the case of Marico v. Bearded Chokra, addressed claims of disparagement against an influencer for comparing “Parachute Coconut Oil” with organic alternatives. Although an injunction was initially granted in favour of Marico, the Appellate Court reversed the ruling, claiming that the majority of the remarks were opinions protected by the freedom of speech. These instances demonstrate the delicate balance that Courts strive to achieve between protecting free expression and safeguarding trademarks against frivolous and harmful claims.
The decision given by the Delhi High Court has left a grey area in terms of free speech and defamatory content. The Court failed to dig deep into the case that could have potentially secured a fresh set of guidelines for influencers, thus adding to the existing ASCI guidelines for influencers on social media with rising digital dispersion of content, Courts must give priority to such matters and provide a reasoned justification for issuing injunctions. In conclusion, India could benefit from a more thorough approach when it comes to the conflict between influencers and market dominant brands, particularly when it concerns public health and consumer misrepresentations. There is an urgent need for a strict law to help navigate and strike a delicate balance between brands, influencers, and large corporations.
Authors: Vamika Gidwani & Simran Jayarao