Introduction
In the realm of consumer products, advertising serves as a powerful weapon to inform and persuade the consumers. However, recent events have shed light on the consequences of misleading advertising practices prompting a closer examination of regulatory frameworks in India. The legal feud between the Indian Medical Association and Patanjali Ayurved serves as a strong reminder of the hazards of disseminating misleading advertisements. The main legal issue is whether Patanjali Ayurved violated the undertaking given to the Hon’ble Court regarding misleading advertisements and if contempt of court proceedings should be initiated against them. Additionally, the Hon’ble Court questioned the Union Government about the action taken under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, in respect of Patanjali’s advertisements.

Right to be aware of the quality of the products
In a significant development, the Hon’ble Supreme Court in Indian Medical Association & Anr. Vs. Union of India & Ors.¹ has declared that the fundamental right to health encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies.

The directions were passed by a Bench comprising of Justice Hima Kohli and Justice Ahasanuddin Amanullah in an interlocutory application moved in the Writ Petition filed by Indian Medical Association against the Union of India and Patanjali Ayurved Limited, the Respondent No. 5.

The Writ Petition deals with the spread of misleading advertisements that exploit consumer trust which are often endorsed by celebrities, public figures, sportsmen and influencers without proper due diligence. The Hon’ble Bench opined that such endorsements significantly impact the consumer behaviour especially when the target of such advertisements are children.

The Hon’ble Bench further emphasised that adherence to the Guidelines for Prevention of Misleading Advertisements and Endorsement of Misleading Advertisements, 2022 (“the said Guidelines”) which deals with prohibition of surrogate advertising, free claims advertisements, children targeted advertisements and advertisements that are prohibited by law and observed that there is currently no effective mechanism for consumers to lodge complaints regarding violations of the said Guidelines.

Observations made by the Hon’ble Bench
The Hon’ble Bench opined that the advertisers/advertising agencies and endorsers are equally responsible for issuing false and misleading advertisements. The Court further observed that such endorsements are routinely made by public figures, influencers, celebrities etc and it is imperative for them to act with a sense of responsibility when endorsing any product and take responsibility of the same, as reflected in Guideline No. 8 of the said Guidelines that relates to advertisements that target or use children for various purposes and Guideline 12 that lays down the duties of manufacturers, service providers, advertisers and advertising agencies to ensure that the trust of the consumer is not abused or exploited due to sheer lack of knowledge or inexperience. The Hon’ble Bench further reiterated Guideline No. 13 which requires a due diligence to be undertaken for endorsement of advertisements and requires a person who endorses a product to have adequate information about, or experience with a specific good, product or service that is proposed to be endorsed and ensure that it must not be deceptive.

The Hon’ble Bench further observed that the aforesaid provisions including statutory provisions, regulations and guidelines have a salutary object, which is to serve the consumers and ensure that they are made aware of the kind of product that is being offered for purchase, particularly in the food and health sector. The Hon’ble Bench was of the opinion that that the ministries ought to set up and promote a mechanism which encourages the consumer to lodge a complaint and for the said complaint to be taken to its logical conclusion, instead of simply being marked/forwarded to the concerned State Authority, thus leaving the consumer clueless as to the final outcome of the complaint.

In view of the above, the Hon’ble Bench observed -

“In view of the above and in the absence of any robust mechanism enacted in law to ensure that the obligations cast on the advertiser to adhere to stipulations in the Guidelines, 2022 in letter and spirit, it is deemed appropriate to invoke the powers vested in this Court under Article 32 of the Constitution of India for the enforcement of the fundamental right to health that encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies.”

To fill in the void, the Hon’ble Bench issued directions mandating that before an advertisement is printed or aired or displayed, a self-declaration shall be submitted by the advertisers and advertising agencies on the lines contemplated in Rule 7 of the Cable Television Networks Rule, 1994 which is as follows:

“7. Advertising Code. - (1) Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers. (2) No advertisement shall be permitted which- (i) derides any race, caste, colour, creed and nationality; (ii) is against any provision of the Constitution of India; (iii) tends to incite people to crime, cause disorder or violence, or breach of law or glorifies violence or obscenity in any way; (iv) presents criminality as desirable; (v) exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary; (vi) in its depiction of women violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service, is tasteful and aesthetic, and is within the well established norms of good taste and decency; (vii) exploits social evils like dowry, child marriage. (viii) promotes directly or indirectly production, sale or consumption of- (A) cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants; (5) No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or supernatural property or quality, which is difficult of being proved.”

The Hon’ble Bench further directed that no advertisements shall be permitted to be run on the relevant channels and/or in the print media or on the internet without uploading the self declaration and that the directions shall be treated as the law declared by this Hon’ble Court under Article 141 of the Constitution of India, 1950.

Conclusion
In conclusion, this Order denotes a significant change towards greater accountability in the advertising industry. This signifies that the advertisers, endorsers and the advertising agencies will be under stricter scrutiny to ensure that their promotions are true and not misleading. With respect to the consumers, this Order construes enhanced protection against misleading advertisements and shall help the consumers in being aware of the quality of products.

By - Soumya Kamat