Supreme Court on the Regulation of Misleading Advertisements and Accountability of Public Figures

INTRODUCTION:

The present Interlocutory Application, filed by the Respondents i.e., Patanjali and its founders, sought judicial notice of the statements made by the President of the Indian Medical Association regarding the Supreme Court and the Respondents in the ongoing case. The Supreme Court directed the President of the Indian Medical Association to appear before the Supreme Court in the next hearing.

The Supreme Court vide its Order issued directives aimed at ensuring the administration and regulation of the misleading advertisements and endorsements.

BACKGROUND AND DEVELOPMENTS IN THE CASE:

The Indian Medical Association (hereinafter referred to as the Petitioner) had filed a writ petition in the year 2022, wherein the Petitioner alleged that the Respondents in the present Case via advertisements and press conferences have made false and unproven claims regarding the efficacy of its products in the treatment of diseases, explicitly prohibited to be advertised under The Drugs and Magic Remedies (Objectionable Remedies) Act, 1954 such as diabetes, heart-ailments, blood pressure et cetera and discrediting allopathic medicines.

The Petitioner thus contended that the said advertisements and press conferences were in violation of the provisions of The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and the Consumer Protection Act, 1954.

Considering the brevity of the matter, and taking note of the inefficient regulatory mechanism to combat the dissemination of misleading advertisements, through the effective implementation of the Drug and Magic Remedies (Objectionable Advertisements) Act, 1954 and the Rules, the Drugs and Cosmetics Act, 1940 and the Consumer Protection Act, 1986, the Supreme Court considered it necessary to implead the Ministry of Consumer Affairs, Ministry of Food and Public Distribution, Ministry of Information and Broadcasting and Ministry of Electronics and Information Technology as parties to the Writ Petition.

Following this, the Supreme Court directed the State Governments and Union Territories to file affidavits pertaining to the action taken with regards to the publication or displaying of misleading advertisements/ endorsements in both media and press.

The Supreme Court while reviewing the said affidavits observed that the action taken by the Licensing Authorities of each State/Union Territory puts forth a grim and ineffective scenario in regulating the misleading advertisements and undertaking steps to hold accountable the responsible predators of the said misleading advertisements.

The said revelations and submissions brought before the Supreme Court through the above-mentioned affidavits led to the Supreme Court issuing directives to regulate, administer and implement the Consumer Protection Act, 1986 with robustness in order to ensure the safeguarding of consumer rights while combating misleading advertisements.

REITERATION OF LEGAL RULES, GUIDELINES AND LEGISLATION:

The Supreme Court observed, “ We are of the firm view that advertisers/advertising agencies and endorsers are equally responsible for issuing false and misleading advertisements. Such endorsements that are routinely made by public figures, influencers, celebrities etc. go a long way in promoting a product. It is imperative for them to act with a sense of responsibility when endorsing any product and take responsibility for the same.”

Drawing inference, The Supreme Court emphasized the need for stringent application of the guidelines issued by the Central Consumer Protection Authority i.e., Guidelines for Misleading Advertisements and Endorsements, 2022. The Supreme Court specifically mentioned the following guidelines to stress upon the need for its stringent application:

While observing the liability of advertising agencies and advertisers, the Supreme Court opined that the endorsements made by the public figures, influencers, celebrities et cetera have a strong influence on the consumer and market behavior. Therefore, the Supreme Court observed that it is of utmost importance that influential figures must act responsibly while endorsing a product/ service.
While observing the role and responsibility of manufacturers of goods and providers of services, the Supreme Court stressed on the observance and implementation of the guideline which in effect ensures that the consumer rights are not exploited owing to a lack of knowledge or inexperience.
The Supreme Court further opined that due-diligence must be done with regards to the advertisements by ensuring that a duty is imposed on the endorser to not endorse a product/ service in a manner that shall deceive the consumer.

DIRECTIVES ISSUED BY THE SUPREME COURT:

The Supreme Court while observing the absence of an effective mechanism to ensure the implementation of the Guidelines which should in essence encompass the right of a consumer to be made aware of the product quality being offered by the manufacturers, advertisers and advertising agencies, and seek redressal for the product quality being inferior or the claims being fraudulent, invoked the power vested on it by virtue of Article 32 of the Constitution of India, to issue the following directives:

The obligation on part of the broadcasters and print media to file a self-declaration form prior to the airing of advertisements stating that the said advertisement is in complete compliance with the provisions contained in, but not limited to, the Cable Television Network (Regulation) Act, 1995, Cable Television Network Rules, 1994, The Advertising Standards Council of India- Code of Self-Regulation, Consumer Protection Act, 2019, and the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.
That the self-declaration form shall be filed on the Broadcast Seva Portal set up by the Union Ministry of Information and Broadcasting.
The Supreme Court issued a directive to the Central Government for setting up of a similar natured portal for the advertisements concerning Print media within a period of four weeks.
The liability of social media influencers with regards to paid misleading advertisements shall be at par with that of the advertisers.
Ministries are directed to set up a regulated and administered procedure which shall encourage the consumer to file a complaint, and a system that shall assure that the complaint is addressed and redressal is provided, in due course.
Endorsers should have necessary information/ experience with the food product being endorsed by them and the said endorsement should not be in any manner deceptive.

WAY FORWARD OR BACKWARD?

In the era of digitalization, smart phones and internet, it has become extremely crucial to regulate and monitor the circulation of advertisements/endorsements in the print and digital media.

The observations made and directives issued by the Supreme Court is definitely a way-forward in the sphere of advertisements/endorsements, one which shall ensure transparency and honesty in the field of advertising therein ensuring consumer welfare.

The Supreme Court’s directive to mandate the filing of self-declaration forms is an effort to minimize the red-tapism while ensuring that advertisements do not in any manner deceive, mislead or harm the consumers.

The Supreme Court, while recognizing the underlying liability and accountability bestowed upon social-media influencers, celebrities and public figures, stressed upon the need for ethical advertising practices which shall be governed by the principles of consumer welfare.

This in turn, shall mean greater liability on the influencers thereby requiring stringent and meticulous due-diligence on part of the influencers to ensure compliance and avoid legal liability.

This said, the recent Interim Order and directives issued by the Supreme Court is a step forward in ensuring ethical advertising, and the upcoming hearings shall provide further insights regarding the implementation, governance and implications that the said directives shall have on the advertising ecosystem.

References:

Medical Association and Anr. v. Union of India and Ors. WRIT PETITION (CIVIL) NO.645/2022
Decoding The Law Around Misleading Advertisements- The Patanjali Saga.
https://www.lexology.com/library/detail.aspx?g=41334f4a-bb85-4658-b7dc-c34d0f9d11e2