By Ms. Nalini. Ba
1. INTRODUCTION
Influence of advertisements on consumer choice is unquestionable. The influence is so high that there is a need for genuine representation of their products. Advertisements are basically meant to promote a product or service and one cannot mislead the shoppers to boost their sales. Constitution of India provides us with the fundamental right to freedom of speech and expression which allows an individual to share his/ her thoughts on various media.[i] Advertisements are within the ambit of fundamental rights. But every right comes with a restriction.
Under the Advertising Standard Council of India (ASCI) code, the general rule regarding advertising is to ensure the truthfulness and honesty of representation. False and misleading advertisements are not just unethical but also violate several rights of consumers. Shoppers or consumers are granted with certain rights under the Consumer Protection Act, 2019. Your shopper rights will protect you when you buy goods and services.
2. A BRIEF NOTE ON CONSUMER RIGHTS
The law guarantees certain rights which a shop or service provider cannot change. Consumers are informed and divided individuals who are subjected to exploitation by the sellers. They need to be protected from the unjust practices followed by traders and producers. Consumer Protection Act protects the shoppers from fraud and unfair treatments. These rights ensure that the shoppers can make better choice in the market place and get help with complaints. The six basic rights of shoppers include
(i) Right to safety
(ii) Right to be informed
(iii) Right to choose
(iv) Right to be heard
(v) Right to seek redressal and
(vi) Right to consumer education[ii]
False or deceptive advertisement violates the right to information, right to choice, right to be protected against unsafe goods and services as well as unfair trade practices.
3. MISLEADING ADVERTISEMENTS AND ITS IMPACT
Advertisements are no piece of fiction, but information. They aren’t to mislead but to inform. Any advertisement or promotion through Television, Radio, or any other electronic media, Newspapers, Banners, Posters, wall-writing etc. to misrepresent the nature, characteristics, qualities or geographic origin of goods or services so as to mislead the consumer could be broadly defined as a misleading or false advertisement. For example, when an edible oil advertisement gives you the impression that you are free of heart problems so long as you are using the concern product then it is misrepresenting facts.
The most powerful element of advertising is truth
- Bill Bernach
Truthfulness of message is essential in advertising. The impact of false advertisement is adverse. The deceptive information causes the average consumers to act in a way they would not if they had not seen that advertisement. Such practices are unfair to consumers and society in general. Advertising may also be considered false if important information that a consumer requires, to make an informed choice, is left out.
In M.R. Ramesh v. M/S. Prakash Moped house & Ors[iii], the complainant Ramesh watched an advertisement which states that the concern bike gives 80km/l mileage. In the lower bottom of the ad with a smaller font size it was written that the condition applies only when the bike is driven with the speed of 40km/h and carries 130 kg. The complainant had not noticed it and bought the bike. It fails to give the said mileage so he filed a complaint. National Consumer Redressal Commission declared it as a misleading advertisement and compensated the complainant.
False advertisements are used to manipulate people and not just to inform them about their product. Some companies blatantly lie in their ads to trick the shoppers. Under Section 2 (47) of Consumer Protection Act, any advertisement which publishes false statement about the quality, quantity, standard and efficiency of any product or service is deemed to be misleading advertisement and it amounts to unfair trade practices. The Telecom Regulatory Authority of India Act, 1984 explains that a product cannot be advertised such that it can do miracle things which cannot be proved. ASCI code should not be violated while making an advertisement.
The ASCI has sent notice to Bharti Airtel Ltd, asking them to withdraw its 4G speed challenge ad on the ground that it is misleading. The claim in the ad ‘Airtel 4G is the fastest network ever’ and ‘If your network is faster, we will pay your mobile bill for life’ is misleading by omission in the absence of appropriate disclaimer.
Similarly, a company claimed that its product Nivea ‘Bio slim complex’ body lotion on its regular use significantly reduces body size. The claim was found to be false and the ad was then prohibited. According to Section 53 of Food Safety and Standard Act, 2006 any person who publishes advertisement that falsely describes any food will be penalized for misleading advertisement.[iv] In the case of Tesol India v. Sanjeev Kumar[v], the Chandigarh Consumer Redressal Commission held that the students should be compensated by the institution for making false promise and misleading them with 100% guaranteed placement through their advertisement.
4. STEPS TO BE TAKEN
4.1. If you are the aggrieved party
If you are the victim of false or misleading advertisement then you have the right to file a case in the following forums for the respective value of claim.
· District Consumer Redressal Forum –Below 20 lakhs
· State Consumer Redressal Commission – 20 lakhs to 1 crore
· National Consumer Redressal Commission – Above 1 crore
With the recent amendment to Consumer Protection Act there will be no fee for filing case up to 5 lakhs.
4.2. If you witness a false advertisement
Speak out; inform the manufacturer and government of your needs and wants. When you come across a misleading advertisement make sure you complaint it to the concern authority. You can lodge a complaint in the website of ASCI.
Otherwise you can register a complaint along with a copy/ video/ audio of such advertisement through the web portal of Government of India at http://gama.gov.in to bring it to the notice of government. Once you got it registered you can also track the status of your complaint by using your respective user id and password that was created at the time of registration. Government departments/ Self- regulating authorities/ Ombudsmen are empowered to take action.As a responsible consumer, be aware of the quality and safety of goods and services before you purchase.
[i] INDIA CONST. art. 19. [ii] The Consumer Protection Act, 2019, No. 35, Acts of Parliament, 2019 (India). [iii] M.R. Ramesh v. M/S. Prakash Moped house & Ors, R.P No. 831 of 2001, N.C.D.R.C, India [iv] The Food Safety and Standard Act, 2006, No. 34, Acts of Parliament, 2006 (India). [v] Tesol India v. Sanjeev Kumar (2010) 2 C.P.J 335 (India).