In the contemporary era of digitalisation, consumers are flooded with promotional content across various platforms. Whether pursuing social media, viewing televised content, or just running errands, consumers are incessantly exposed to brands through their marketing content. As the number of brands grow and as these compete with one another within the limited marketplace, jostling for consumers’ attention, they often resort to misleading and deceptive ads to make their brand / product / content stand out. As ads can motivate consumer decisions, and where these decisions can impact on the consumer’s health, or money or their trust on other businesses, it is imperative that advertisements uphold principles of veracity, transparency, and ethical compliance.
Falling within this ambit, and following other pieces of legislation to ensure greater scrutiny and accountability in advertising, the Supreme Court issued an order on May 7, 2024, mandating self-certification for all advertisers and advertising agencies. As per the original order, this requirement was effective for advertisements ( both digital and print) released on or after June 18, 2024. The process of self-certification refers to advertisers voluntarily assessing their own advertisements and certifying that they comply with relevant laws, regulations, and industry standards. The order also implicitly places the onus on the platform or channel that runs the advertisement to have first verified the certificate. To streamline the process of self-certification, the Ministry of Information and Broadcasting introduced a new feature on the Broadcast Seva Portal for TV and Radio Advertisements and the Press Council of India’s portal for Print and Digital/Internet Advertisements. The Supreme Court Order also states that celebrities and influencers who promote products or brands will be held accountable for promoting misleading ads.
The directive comes on the heels of the Patanjali controversy, with the brand accused of misleading ads about their product Coronill, which they claimed cured COVID-19, also stating that it was endorsed by the World Health Organization (WHO). The WHO, though went on to refute this claim. Following this, in 2022, the brand published an anti-allopathy ad indirectly claiming that their medicines were better and safe to use without any side effects, unlike allopathy medicines. This advertisement led to a serious turn of events as the Indian Medical Association (IMA) filed a petition before the Supreme Court for the same.
Other misleading ads:
Despite the existing Cable Television Networks Rules, 1994, along with the advertisement guidelines which the Central Consumer Protection Authority (CCPA) established under Section 10 of the Consumer Protection Act, 2019 to regulate issues related to the violation of consumer rights, unfair trade practices and false or misleading advertisements, the prevalence of misleading ads continues to be a concern. According to the Advertising Standards Council of India (ASCI) 3200 ads were reported in the year 2023-24 for direct violation under the existing laws. (ASCI, is the self-regulatory body of the Indian advertising industry established in 1985 and addresses concerns related to deceptive, offensive, harmful, and unfairly competitive advertisements across various platforms, including television, print, and digital. The ASCI code forms an integral part of the Advertising Code embedded within the Cable TV Networks (Regulation) Act, 1994).
Patanjali is by no means an exception. Horlicks, a product of GlaxoSmithKline (GSK) company, was caught claiming that 9 out of 10 children’s diet is deficient in essential nutrients, a claim that ASCI ruled as ‘misleading’. Sensodyne was penalised for using misleading phrases (including ‘recommended by dentists worldwide’, ‘world’s no.1 sensitivity toothpaste’, ‘clinically proven’, etc) in its ads, leading to a substantial fine imposed by the Central Consumer Protection Authority (CCPA). The Food Safety and Standards Authority of India (FSSAI) recently mandated that all Food Business Operators (FBOs) must remove any claims of ‘100% fruit juice’ - an all too common claim - from the labels and advertisements of reconstituted fruit juices as of June 3, 2024. After a thorough review, FSSAI determined that under the Food Safety and Standards (Advertising and Claims) Regulations, 2018, there is no provision for making a ‘100%’ claim. Such claims are deemed misleading, particularly when the primary ingredient is water, the actual fruit juice content is low, or the juice is reconstituted using water and fruit concentrates or pulp. Some legal experts believe that the new mandate for self certification will add a further layer of scrutiny, will benefit consumers and make advertisers more accountable.
Apprehensions :
The original order raised further questions- for example, do claims pertaining to goods and services on brands’ own websites come under the purview of the new rule? Similarly, many brands have tie-ups with online shopping portals like Amazon, Flipkart, etc, to sell their products. In such a scenario, will these third-party e-commerce platforms fall under the category of publishers? And do they need to obtain self-certification for the same?. While the order also stated that celebrities and influencers will be held liable if endorsing a misleading claim, it was not clear if they also required a self-declaration.
Following the many concerns, the MIB issued a new advisory on the 3rd of July 2024. The advisory reads that self-declaration certificates are required to be uploaded only by the food and health sectors. This will be an annual, single upload for ads across all media, certifying compliance with various applicable laws.
Lack of monitoring and redressal mechanism:
Advertisements play a significant role in shaping consumer behaviour and perceptions. Self-certification can potentially be a trust building exercise, and by voluntarily assessing their own ads and adhering to ethical standards, advertisers can meet consumer expectations better, foster accountability within the industry, and promote a culture of responsible advertising.
However, the guidelines for advertisers provided under the self-certification section on the Broadcast Seva webpage have no details of any redressal mechanisms, if the ads still continue to carry misleading information. The process for this remains the same as previously, which then raises the question if this in-between stage of self-certification is merely an additional admin exercise. The new advisory has made the rationale behind the self-certification process even more ambiguous. By narrowing down the regulation to just two sectors (food and health), has the government given an unintended message that brands and companies from other sectors are given a freer-hand with their ad content?
The effectiveness of the new self-certification process in curtailing misleading ads will be apparent only over time, and by analysing if there is a drop in the number of complaints about misleading ads within the food and health sectors. It therefore remains important the public remains watchful, and quick to act when they spot a misleading ad. Therefore building consumer awareness and empowering action must continue to be the cornerstone role of both the government and civic organisations.
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