“Advеrtising is a non-moral forcе, likе еlеctricity, which not only illuminatеs

but еlеctrocutеs. It’s worth to civilization dеpеnds upon how it is usеd”

BACKGROUND

The growing interdependence of the world economy and international character of many business
practices have contributed to the development of universal emphasis on consumer rights protection
and promotion.

Consumers, clients and customers all over the world, are demanding value for money in the form of
quality goods and better services. Modern technological developments have no doubt made a great
impact on the quality, availability and safety of goods and services. But the fact of life is that the
consumers are still victims of unscrupulous and exploitative practices.

Exploitation of consumers assume numerous forms such as misleading advertising, adulteration of

food, spurious drugs, dubious hire purchase plans, high prices, poor quality, deficient services,
deceptive advertisements, hazardous products, black marketing and many more.

In this age of fierce competition wars are fought by the competing industrial giants through the
means of advertisements. Advertisement has become such an important and potent weapon to
promote particular products that companies think of innovative and attractive ways to woo the
consumers. For this purpose services of specialized advertising agencies are hired by the companies.

As advertising has the potential to persuade people into commercial transactions that they might
otherwise avoid, many governments around the world use regulations to control false, deceptive or
misleading advertising. “Truth” refers to essentially the same concept, that customers have the right
to know what they are buying and all the necessary information should be on the label.

BASIC CONCEPTS

CONSUMER: Section 2(1) (d) of the Consumer Protection Act, 1986 defines a ‘consumer’ as any
person who buys goods or avails of services for a consideration, paid or payable later on, and it also
includes the permissible user of goods or services.

The negative part is that even if all the ingredients mentioned above are there, a person shall not
qualify as a consumer if he obtains any goods or services for commercial purpose. However, if a
person buys the goods or services for self employment and earning a livelihood, the protection of the
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consumer jurisdiction shall still be available depending on the facts and circumstance of each
individual case.

ADVERTISEMENT: Advertisement means any form of representation which is made in connection

with a trade, business, craft or profession in order to promote the supply or transfer of goods or
services, immovable property, rights or obligations.

DECEPTIVE ADVERTISEMENT: An advertisement is deceptive if in any way, including its

presentation, it deceives or is likely to deceive the persons to whom it is addressed or whom it
reaches and if, by reason of its illusory nature, it is likely to affect their economic behaviour or, for
those reasons, injures or is likely to injure a competitor of person whose interests the advertisement
seeks to promote.

Deceptive advertising is the use of false or misleading statements and portrayals in advertising. An
advertisement is generally termed deceptive when it misleads people, alters the reality and affects the
purchasing behaviour of the consumer.

False advertising, in the most blatant of contexts, is illegal in most countries. However, advertisers
still find ways to deceive consumers in ways that are legal, or technically illegal but unenforceable.

MISLEADING AND DECPTIVE ADVERTISEMENTS

When an edible oil advertisement gives one the impression that one is free of heart problems so long
as he is using that particular oil, then it is misrepresenting facts. When an advertisement of a water
purifier that filters only bacteria (and not viruses) claims that it gives 100% safe water then it is a
false statement. When a mobile operator promises STD calls for 40 paisa per minute, but omits to say
that this rate is applicable only when calls are made to another mobile of the same company, then it
constitutes misrepresentation.

Similarly, when an advertiser or manufacturer makes a claim about a product, he should be able to
prove it else it becomes a false statement. If he says that his refrigerator is the best or that it keeps the
food inside germ-free, that claim should be backed by adequate scientific data that substantiates the
claim. Similarly, if an advertisement for a detergent says that it can remove grease in just one wash –
it should be able to do just that and the manufacturer should be able to prove this.

Essentials for an advertisement to be deceptive

An advertisement may be considered deceptive if:

(1) It contains a misrepresentation, omission or practice that is likely to mislead the consumer;

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(2) The consumer is “acting reasonably under the circumstances”;and

(3) The misrepresentation, omission or practice is “material,” that is “likely to affect the consumer’s
conduct or decision with regard to a product or service.”

Two categories of false and misleading advertisements

In the first group would be those that basically violate the consumers’ right to information and choice
and thereby have the potential to cause the consumer, financial loss and even mental agony.

The second category would include those that peddle health cures and drugs of questionable efficacy
and health gadgets of unknown values This class of advertisements is the most dangerous, as they
can also have a serious repercussion on the health of the consumers.

Unfortunately, despite several laws meant to protect consumers against such unfair trade practices,
false and misleading advertisements continue to exploit the vulnerability of consumers,

(a) because of their poor enforcement and

(b) because of the lacunae in some of the laws.
(c) In fact, such advertisements now have a wider canvas: while earlier, one saw them only in the
print media, today you can see them on television, influencing a larger number of people and
impacting even the illiterate. Proliferation of advertisements through television marketing
networks promoting health cures, slimming and beauty gadgets of unproven value is a cause of
great concern, because today the reach of television channels is phenomenal. And undoubtedly,
the impact of the visuals on the television screen is far greater than the newspapers.

Deceptive Advertisements, Consumers’ Choice And The Consumer Protection Act, 1986
Section 2(r) of the Consumer Protection Act gives a comprehensive definition of unfair trade
practice and Section 14 deals with the directions that the court can give to deal with such
practices. The consumer courts have given some excellent orders in this area, but they cannot
deal with misleading advertisements like the MRTPC.

Reliefs to Consumer Under The Consumer Protection Act On Account Of Deceptive

Advertising
The consumer has the right to be informed about the quality, quantity, potency, purity, standard
and price of goods. The consumer cannot be provided with either wrong or deceptive information
which may lead him to make a wrong choice.

In case the consumer has been a victim of deceptive advertising he has the right to seek redressal
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 against such unfair trade practice (deceptive advertising). If after the proceedings conducted, it
has been established that the advertisement was deceptive and that on account of such
advertisement the consumer was a victim, then he shall have the following reliefs under the Act:
1. Refund of the price paid;
2. Award of compensation for loss or injury suffered ;
3. The opposite party may be ordered to discontinue and not to repeat unfair trade practice
(i.e., deceptive advertising);
4. The opposite party may be ordered not to offer hazardous goods for sale;
5. The opposite party may be ordered to withdraw hazardous goods already on sale;
6. The opposite party may be ordered to cease manufacture of hazardous goods and desist
from offering services which are hazardous in nature;
7. If the loss or injury has been suffered by large number of consumer who are not
identifiable conveniently, the opposite party may be ordered to pay such sum (not less
than 5% of the value of such defective goods or services provided) which shall be
determined by forum;
8. The opposite party may be ordered to issue corrective advertisement to neutralize the
effect of misleading advertisement;
9. The court can also award punitive damages and costs of litigation to the consumer.

The most important among all is that court can direct the advertiser to issue corrective
advertisement. Section 14 (h) (c) of the Act, describing the powers of the court, says that the
court can order “corrective advertisement to neutralize the effect of misleading advertisement at
the cost of opposite party responsible for issuing such misleading advertisement”.

In so far as possible as misleading advertisements are caused, this is the most important provision
and can really have a deterrent effect, if used effectively. Unfortunately, this provision has hardly
been used.

ROLE OF JUDICIARY

M. R. Ramesh vs. M/S Prakash Moped House and Others

In its order in the case of M. R. Ramesh vs. M/S Prakash Moped House and Others 1, the apex
consumer court warned against advertisement that use fine print to hide crucial information

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In the National Consumer Disputes Redressal Commission (NCDRC), Revision Petition No. 831 of 2001.
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 pertaining to product and services, thereby misleading the consumer in their choice. And by
awarding substantial compensation to the consumer, who was misled by such an advertisement,
the National Commission made it clear that it would not take such violation of consumers’ right
to information lightly. Its advice to manufacturers and services providers: “advertisements should
not mislead and should give a clear picture of quality of goods sold”.

This case pertains to a motorbike – Hero Honda CD-100 – that one M. R. Ramesh bought in
Bangalore in February 1993. His contention was that at time of purchase, he was assured that
bike would run 80 kms on a litre of petrol. However, the bike ran 22 kms less than promised. He
filed before the National Consumer Dispute Redressal Commission, New Delhi that an
advertisement published in October 1993, wherein the manufacturer had made such a claim about
the mileage of the motorcycle. The manufacturer, on the other hand, brought on record
advertisement during the period which carried an asterisk on the numerical figure of 80 and at the
foot of advertisement in small print, said “at 40 kmph/130 kg”, thereby qualifying the claim.

The National Commission made two prominent observations here:

(1) that there was no explanation from the manufacturer as to how the advertisement shown by
the consumer did not carry any such qualifying statement.
(2) even advertisements that specified at bottom in fine print, “40 kmph/130 kg” or the “under
standard condition” were not intelligible to the consumer and were therefore deceptive.

Said the Commission: “Such an advertisement as put out by the respondents is misleading. It
amounts to unfair trade practice. When the respondents claimed that motor cycle can give mileage of
80 km per litre, they cannot just be absolved of their responsibility not to clearly indicate that this
would be so when the motor cycle is driven at the speed of 40 kmph and the load would be 130 kg.
Simply by putting an asterisk and indicating such condition in small print at the bottom of
advertisement is certainly deceptive. Moreover, when it is stated that this mileage can be obtained at
the particular speed and the load under “standard conditions”, then those standard condition must be
indicated so that the consumer is duly informed of the bargain he is in it. Rather in our view any such
advertisement should take into account the conditions of the roads in the cities”.

It directed the manufacturer not to make such a claim in future without stating clearly, intelligibly
and “in the same type of letters”, the basis for the claim. The consumer wanted the price of motor
cycle to be refunded to him. However, keeping in mind the fact that the case was almost ten year old,
the National Commission instead awarded the consumer a compensation of Rs.25,000.

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Bhupesh Khurana vs Vishwa Budddha Parishad,

In another case of Bhupesh Khurana vs Vishwa Budddha Parishad,a class action suit was filed by
twelve students, who had joined the BDS course offered by Buddhist Mission Dental College run by
Vishwa Buddha Parishad. The students’ complaint was that the college, in its advertisement calling
for the application to the course, had given the impression that it was affiliated to Magadha
University, Bodh Gaya and recognised by the Dental Council of India and was fully equipped to give
Bachelor of Dental Science degree to the students. However, after joining the college and attending
the classes, the students found to their dismay that the annual examination were not been held
because the college was neither affiliated to Magadh University nor the course was recognized by the
Dental Council. As a result, they not only lost two valuable academic years, but also the money spent
on fees, hostel charges, etc.

Holding the services rendered by the college to be deficient, the National Commission directed it to
refund the academic expenses of all the twelve students along with 12% interest calculated from date
of receipt of amount till the date of payment. In addition, it also directed the institution to pay Rs
20,000 to each of them by way of compensation for the expenses defrayed on the purchase of books,
hostel etc., and for the loss of two academic year. It also awarded Rs. 10,000 as a cost of petition.

OTHER LAWS

1. Cable Television Network Regulation Act, 1995 -

The Cable Television Network Regulation Act, 1995 mandates that all advertisements transmitted
through the cable television network must adhere to the Advertising Code formulated under it.
Briefly, the code stipulates that all advertisement should conform to the laws of the country, the
product advertised should not suffer from any defect of deficiency as mentioned in the Consumer
Protection Act, 1986 and should not contain references which are likely to lead the public to infer
that the product advertised has some miraculous property or quality which is difficult of being
proved.

Any ‘authorized officer’, either the district magistrate or sub divisional magistrate or the
commissioner of police or any other officer notified by central or the state government can take
action against any violation of the Advertising Code.

The main problem with this code is the enforcing agency. Such an advertising code should be
enforced by an independent regulator, like say a broadcasting regulator and certainly not the police.

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In Australia, for example Broadcasting Regulator looks at violation of advertising codes on
television.

2. The Infant Milk Substitute, Feeding Bottles And Infant Foods (Regulation Of Production,
Supply And Distribution) Act, 1992

This law is also against deceptive and misleading advertisements. It prohibits advertisements and
promotion of infant milk substitutes, feeding bottles, and infant foods because their promotion
creates a misconception which deceives consumers and thereby misleads them into believing that
infant foods or milk substitutes sold in the market are as good as or better than mother’s milk.
Section 3 of the act says that:
“No person shall:
a) advertise or take part in the publication of any advertisement, for the distribution, sale or supply
of infant milk substitutes or feeding bottles or infant foods.
b) give an impression or creates a belief in any manner that feeding of infant milk substitutes and
infant foods is equivalent to or better than mother’s milk.”

3. The Monopolies And Restrictive Trade Practices Act, 1969

On 1st august 1984, the MRTP Act was amended and Unfair Trade Practices were covered within
purview of the MRTP Act. The main object of incorporating such provision in the MRTP Act was to
check deceptive and misleading advertisements in the public interests.

For preventing deceptive and misleading advertisement, the MRTP Act had declared deceptive
advertising as an unfair trade practice. In case the advertiser was found indulging in issuing
deceptive advertisements which had the potential to influence any reasonable man, he was directed
to immediately withdraw such an advertisement, not to issue such advertisements in future, issue
corrective advertisements, make necessary clarification and give damages to cheated consumers.

In the year 2002, government abolished the MRTP Act. Now all the powers regarding unfair trade
practices have been given to consumer courts, setup under the Consumer Protection Act.

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 ADVERTISING STANDARDS COUNCIL OF INDIA

Advertising Standards Council of India (ASCI) is a self-regulatory voluntary organization of the

advertising industry which was founded in 1985. It is a self regulatory organisation (SRO) for
advertising content. The three main constituents of advertising industry, viz. advertisers,
advertising agencies and media came together to form this independent NGO. The aim of ASCI
is to maintain and enhance the public’s confidence in advertising. Their mandate is that all
advertising material must be truthful, legal and honest, decent and not objectify women, safe for
consumers – especially children and last but not the least, fair to their competitors.

Composition Of ASCI
ASCI’s team consists of the Board of Governors, the Consumer Complaint Council (CCC) and
its Secretariat. ASCI has 12 members in its Board of Governors, four each representing the key
sectors such as Advertisers, advertising agencies, media and allied professions such as market
research, consulting, business, education, etc.
The CCC currently has about 21 members: 9 are from within the industry and 12 are from the
civil society like well known doctors, lawyers, journalists, academicians, consumer activists, etc.
The CCC’s decision on complaint against any advertisement is final. ASCI also has its own
independent Secretariat of 5 members which is headed by the Secretary General.

Objectives Of ASCI
The objectives of ASCI are enlisted briefly as follows:
1. To enhance image and trustworthiness of advertising.
2. To safeguard against misleading advertisements.
3. To develop generally accepted standards of public decency.
4. To avoid such practises as are unacceptable to society at large.

ASCI And Protection Of Consumers’ Choice From Deceptive Advertisements

There is no other non governmental body in India which regulates the advertising content that is
released in India.
If an advertisement that is released in India seems deceptive or objectionable, a person can write
to ASCI with his complaint.

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The following procedure is adopted in processing a consumer complaint:
1. Complaint received by ASCI
2. Advertiser/Ad-Agency asked to comment on this complaint and to submit documentary
proofs like proof for claims given in advertisement.
3. Further Investigation by Consumer Complaint Council of ASCI.
4. If complaint is found to be correct, then ASCI will seek assurance from advertiser to
withdraw such advertisement.
5. If required assurance from the advertiser is not received, then media will be asked not to
carry such advertisement.
6. The decision of the council on complaint conveyed to complainant.

ASCI does not have statutory powers. It acts only as a moral pressure group. It publishes cases of
non-compliance by advertisers and agencies in mass media and hands over the matter to statutory
authority if its decisions are not followed by the advertiser.

ASCI does not protect consumers’ choice from deceptive advertising. Instead, it acts only as an
agent or moral pressure group in the protection of the consumers’ choice from deceptive
advertising. The role of ASCI is worthy of praise. ASCI is an alternative body which protects the
rights of consumers by laying down the criteria for advertisement, directing the advertisers the
corrective measures in case the advertisements are not in line with its code, lobbying for the
removal/correction of advertisements violating the code of ASCI and by taking up the matter
with statutory authorities for the restriction of advertisement in case the advertiser does not
render assurance of corrective measures.

CONCLUSION
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The gullible routinely get seduced by product advertisements claiming to give a flawless complexion
or immediate relief from pain or reduce weight in a few weeks. After using the product for a while in
most cases people realize they have been cheated!

They feel miserably helpless – mostly because of lack of proper knowledge and education.
Advertisements related especially to food supplements, cosmetics and herbal products that promise
health benefits are actually endangering the consumers. Such frauds are being committed by reputed
companies.

To stop such advertisements there is self-regulation in print and electronic media but it is not
effective. There are several other laws as well, but least enforced. The content of advertisements
aired on television, radio and print media, is being regulated by private bodies like the Advertising
Standards Council of India but such bodies are not successfully preventing deceptive advertisement
and holding companies accountable for such advertisements.

False and misleading advertisements violate several basic rights of consumers: the right to choose,
the right to be protected against unsafe goods and services, as well as, unfair trade practices.

Under Art.19, the Constitution of India guarantees freedom of speech, but at the same time due
diligence and restraint is required to be exercised. The freedoms guaranteed by Art.19 (1) are not
absolute as no right can be. The freedom of speech and expression is liable to be controlled, curtailed
and regulated to some extent by laws made by parliament and state legislatures. Accordingly, clauses
(2) to (6) of Art. 19 lay down the grounds and purposes for which a legislature can impose
“reasonable restrictions’ on the rights guaranteed by Art. 19. Emanating from Art. 19 (1), every
individual body has a right to advertise. But this advertising should be such that it does not carry any
potential to deceive people into buying the advertised products or availing the advertised services.
Advertisements which influence consumers’ choice and are deceptive are violative of Art.19 of
the Constitution.

Hence, an efficient law is need of the hour to tackle the menace of deceptive and misleading
advertisements which harm innocent consumers and violate their rights. And, for the good, the
Government of India has mooted a Regulation Authority for keeping a tab on deceptive and
misleading. Loopholes in the existing self-regulation mechanism and scarcity of appropriate laws are
one of the reasons why government is planning for effective law in this regard. But merely laws shall
not suffice. An effective mechanism for the implementation of law is also needed.

The researchers, in the instant study, do not deny that there are laws. Laws do exist, but they are
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difficult to enforce. It is because of lack of a concrete definition of “deceptive advertising” besides
its immense subjectivity. Also, lack of knowledge of consumer rights among people is another very
important reason for the non – redressal of consumer grievances.

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