By Dr. Sailaja Petikam
Since advertisements are basically meant to promote a product or a service one does see some exaggeration in the way they extol the virtues of the product. But when it goes beyond that and deliberately utters a falsehood or tries to misrepresent facts thereby misleading the consumer, then it becomes objectionable. But the influences of advertisements on consumer choice are undeniable, and make it imperative so that advertisements be fair and truthful. Misleading and false advertisements are not just unethical, they distort competition and of course, consumer choice. False and misleading advertisements in fact violate several basic rights of consumers including the right to information, the right to choice, and the right to be protected against unsafe goods and services as well as unfair trade practices.
Legislations to regulate the Misleading Advertisements
A number of laws, regulations and codes regulate advertisements and protect the interests of the consumers. But only two laws namely-the Consumer Protection Act, 1986 and the Monopolies and Restrictive Trade Practices Act, 1969 provide for compensation to the consumers affected by false and misleading advertisements. In fact, under both the laws, false and misleading advertisements are defined as ‘unfair trade practices’.
The definition of ‘unfair trade practice’ has been substituted in the year 1992 in the Unfair Trade Practices:
The Consumer Protection Act, 1986 defines Unfair Trade Practices, it means a trade practice which has been adopted by the trader for the purpose of
- promoting the sale, or
- use or supply of any goods, or
- for the provision of any service with unfair or deceptive practice.
Besides, the unfair trade practice includes-
- the misrepresentation about the good, services which mislead the consumer, or
- proposed bargain price, or
- offers gifts, prizes, any contest, lottery, game chance, or
- sale of substandard goods knowingly, or
- hoarding or destruction of goods.
Categories of false and misleading advertisements
Broadly, one can categorize false and misleading advertisements into two groups. In the first group would be those that basically violate the consumer’s 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 severe repercussion on the health of the consumer.
Regulations to control the misleading advertisements
Apart from these two main Acts some other small Acts namely Cable Television Network Regulation Act, Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 etc, are made by the legislature to control the misleading advertisements. In addition to these laws, the regulatory agencies established under different laws have also formulated rules, regulations and advertisement codes to ensure that advertisers do not mislead consumers through their material, including advertisements. Basing on the legislations and regulations the consumer can give a complaint on misleading advertisements to ASCI (Advertising Standards Council of India), or complain to TRAI if an advertisement of telecom service provider is unfair or unethical. Similarly, to the IRDA in respect of advertisements on banking financial companies, to SEBI for advertisements on mutual fund, etc,. As a regulator and supervisor of the financial system, the Reserve Bank of India too exercises its power to curb false and misleading advertisements by various financial institutions.
We can also write to the Union Ministry of Information and Broadcasting bringing to their notice any violation of Cable Television Network Act. And also can file a complaint before the Consumer Court asking for corrective advertisements and even compensation for any loss or suffering caused as a result of such advertisements. The Press in India is free from Government control. The Press Council of India (PCI) is a statutory body established for preserving the freedom of the press and for maintaining and improving the standards for Journalistic Ethics, which states that the Editors should insist on their right to have the final say in the acceptance or rejection of advertisements.
The Central Government has constituted an inter Ministerial Committee to take cognizance suo moto to look into specific complaints regarding violation of advertising code by TV channels. But no such instance has come to the notice of the Committee so far.
The Central Board of Film Certification (CBFC) certifies films, including that of advertisements for public exhibition under the provisions of section 5(B) of the Cinematograph Act 1952 and the guidelines framed there under.
Conclusion
Unfortunately, despite several laws meant to protect consumers against such unfair trade practices, false and misleading advertisements continue to exploit the vulnerability of consumer, (a) because of their enforcement and (b) because of the lacunae in some of the laws.
In fact such advertisements now have a wider canvas: one saw them only in the print media, today you can see them on television, influencing a larger number of people 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. The interest of the society is Paramount than the interest of an individual hence, various legislations, rules, regulation and Codes are to be strictly enacted and enforced to protect and promote the societal interest.