Marketers Need To Be Careful With Advertisement

With an aim to protect the consumer from exploitation by misleading advertisements, the Central Consumer Protection Authority (CCPA) under the department of Consumer Affairs has issued ‘Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022’.

The government has also clearly outlined the penalty for violating the guidelines according to which CCPA can impose penalty of upto 10 lakh rupees on manufacturers, advertisers and endorsers for any misleading advertisements. For subsequent contraventions, CCPA may impose a penalty of upto 50 lakh rupees. The Authority can prohibit the endorser of a misleading advertisement from making any endorsement for upto one year and for subsequent contravention, prohibition can extend upto three years.

The guidelines seek to ensure that consumers are not being fooled with unsubstantiated claims, exaggerated promises, misinformation and false claims. Such advertisements violates various rights of consumers such as right to be informed, right to choose and right to be safeguarded against potentially unsafe products and services.

The present guidelines define “bait advertisement”, “surrogate advertisement” and clearly provides what constitutes as “free claim advertisements”.

Keeping in view the sensitiveness and vulnerability of children and severe impact advertisements make on the younger minds, several pre-emptive provisions have been laid down on advertisements targeting children. Guidelines forbid advertisements from exaggerating the features of product or service in such manner as to lead children to have unrealistic expectations of such product or service and claim any health or nutritional claims or benefits without being adequately and scientifically substantiated by a recognised body. 

According to the guidelines, advertisement targeting children shall not feature any personalities from the field of sports, music or cinema for products which under any law requires a health warning for such advertisement or cannot be purchased by children.

Disclaimers in advertisements play a pivotal role from consumer perspective since, in a way it limits the responsibility of the company. Therefore, guidelines stipulates that disclaimer shall not attempt to hide material information with respect to any claim made in such advertisement, the omission or absence of which is likely to make the advertisement deceptive or conceal its commercial intent and shall not attempt to correct a misleading claim made in an advertisement. Further, it provides that, a disclaimer shall be in the same language as the claim made in the advertisement and the font used in a disclaimer shall be the same as that used in the claim.

Similarly, clear Guidelines are laid for duties of manufacturer, service provider, advertiser and advertising agency, due diligence to be carried out before endorsing and others. Guidelines aims to protect consumer’s interest through bringing in more transparency and clarity in the way advertisements are being published, so that, consumers are able to make informed decisions based on facts rather than false narratives and exaggerations.

Application

These guidelines shall apply to all advertisements regardless of form, format or medium;  and a manufacturer, service provider or trader whose goods, product or service is the subject of an advertisement, or to an advertising agency or endorser whose service is availed for the advertisement of such goods, product or service.

Conditions For Non-Misleading And Valid Advertisement

According to guidelines, an advertisement shall be considered to be valid and not misleading, if–

1. If an advertisement contains truthful and honest representation, it does not mislead consumers by exaggerating the accuracy, scientific validity or practical usefulness or capability or performance or service of the goods or product.
2. If it does not present rights conferred on consumers by any law as a distinctive feature of advertiser’s offer.
3. If it does not suggest that the claims made in such advertisement are universally accepted if there is a significant division of informed or scientific opinion pertaining to such claims.

As per the government guidelines, if any occasional and unintentional lapse in the fulfilment of an advertised promise or claim occurs while carrying out mass manufacture and distribution of goods, products and services, such unintentional lapse may not invalidate the advertisement, provided –

1. Such promise or claim is capable of fulfilment by a typical specimen of the product advertised
2. The proportion of product failures is within the generally acceptable limits.
3. The advertiser has taken prompt action to make good the deficiency to the consumer.

Conditions For Bait Advertisements

A bait advertisement shall fulfil the following conditions:

1. A bait advertisement shall not seek to entice consumers to purchase goods, products or services without a reasonable prospect of selling such advertised goods, products or services at the price offered.
2. The advertiser shall ensure that there is adequate supply of goods, products or services to meet foreseeable demand generated by such advertisement.
3. Advertisement shall state the reasonable grounds which the advertiser has for believing that he might not be able to supply the advertised goods, products or services within a reasonable period and in reasonable quantities, and in particular.

“The advertisement shall not mislead consumers by omitting restrictions, including geographic restrictions and age-limit on the availability of the goods, products or services,” the guidelines read.

Prohibition Of Surrogate Advertising

No surrogate advertisement or indirect advertisement shall be made for goods or services whose advertising is otherwise prohibited or restricted by law, by circumventing such prohibition or restriction and portraying it to be an advertisement for other goods or services, the advertising of which is not prohibited or restricted by law.

An advertisement shall be considered to be a surrogate advertisement or indirect advertisement, if–

1. If it indicates or suggests directly or indirectly to consumers that it is an advertisement for the goods, product or service whose advertising is prohibited or restricted by law.

Such advertisement uses any brand name, logo, colour, layout and presentation associated with such goods, product or services whose advertisement is prohibited or restricted:

Provided that mere use of a brand name or company name which may also be applied to goods, product or service whose advertising is prohibited or restricted shall not be considered to be surrogate advertisement or indirect advertisement, if such advertisement is not otherwise objectionable as per the provisions set out in these guidelines.

Free Claims Advertisements

1. A free claims advertisement shall not describe any goods, product or service to be ‘free’, ‘without charge’ or use such other terms if the consumer has to pay anything other than the unavoidable cost of responding to such advertisement and collecting or paying for the delivery of such item.

“Make clear the extent of commitment that a consumer shall make to take advantage of a free offer,” it added.

2. The guidelines directed all the companies not to describe any goods, product or service to be free, if the consumer has to pay for packing, packaging, handling or administration of such free goods, product or service.

Children Targeted Advertisements

2. An advertisement that addresses or targets or uses children shall condone, encourage, inspire or unreasonably emulate behaviour that could be dangerous for children.
3. An advertisement of any goods, product or service which addresses or targets children shall not be such as to develop negative body image in children, give any impression that such goods, product or service is better than the natural or traditional food which children may be consuming.

“An advertisement for junk foods, including chips, carbonated beverages and such other snacks and drinks shall not be advertised during a programme meant for children or on a channel meant exclusively for children,” it said.

Every manufacturer, service provider, advertiser or advertising agency to whom these guidelines apply shall ensure that all descriptions, claims and comparisons in an advertisement which relate to matters of objectively ascertainable facts shall be capable of substantiation and produce such substantiation if required by the Central Authority.