Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022
The Central Consumer Protection Authority has introduced a new set of guidelines namely Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 for advertisement vide notification dated 9th June 2022 (“Guidelines”). The guidelines aim to streamline the standards of advertisement with stringent provisions regarding bait advertisement, surrogate advertisement, free claim advertisement and advertisement that is accessible to children. The guidelines further mandate the requirement of due diligence and disclosures by endorsers and elucidates the duties of manufacturers, service providers, advertisers and advertising agencies.
Applicability: The Guidelines shall apply to all advertisements regardless of the form, format or medium and shall apply to all manufacturers or traders whose goods are advertised and to all endorses and advertising agencies whose services are availed for such advertisements.
The Guidelines recognizes an advertisement to be valid and not attract any penal provisions if the same is accurate, honest, based on scientific fact and research. All advertisements not falling in the purview of non-misleading valid advertisements are bifurcated in the categories of bait advertising, surrogate advertising and free claims advertising
Prohibition On Surrogate Advertisement
Surrogate advertisement is a type of advertisement unique to India, popularized by the former “beer baron” Mr. Vijay Malya in the early 90s. This form of advertising was an innovative way to circumvent the ban on advertisement of alcohol, cigarettes and other items that while not prohibited are morally discouraged by the government.
This unique take on advertising has given India some of the most creative and interesting ads from the “men will be men” advertisement of Seagram's Imperial Blue to the “No.1 yaari” advertisement of McDowell’s No.1, such advertisements have made the Indian population familiar with various alcohol brands without even directly advertising the alcohol. While the moral veracity of such advertisements has always been in the gray area, the new guidelines seek to constrict the scope of the same by defining and legally recognizing surrogate advertisements as
An advertisement which directly or indirectly suggests to consumers that the advertisement is for a product or service whose advertisement is prohibited.
An advertisement using the brand name. logo, colour, layout and presentation associated with the products or service whose advertisement is prohibited. Pertinently, mere use of brand name or company name applicable to actual products which is also used for products whose advertisement is prohibited.
The Guidelines strictly prohibit all advertisements falling in the purview of Surrogate advertisement
Provisions for advertisements targeting children: The Guidelines lay down special provisions for advertisements targeting children and advertisements aired on special channels dedicated to children. Such prohibitions restrict advertisements which contain behaviors including but not limited to advertisements which
Condone dangerous behavior
Take advantage of the inexperience of the children
Exaggerate the features of the products to create unrealistic expectations
Condone practices detrimental to physical health of children
Imply that children will be ridiculed or less popular if they do not purchase the advertised product
Feature children in advertisements of products whose advertisement is prohibited
Cause children to develop negative body images
Give an impression that the product is better than natural or traditional food consumed by the children
Junk food, carbonated beverages or other snacks or drinks
Offers promotional gift to children to induce them into buying goods
Guidelines of the Act
1. Requirement of disclaimers: All advertisements requiring disclaimers shall have such disclaimers in the same language as advertisement and in the same font and size as used in the claim.
2. Duties of manufacturer/service provider/advertiser/advertising agencies: All manufacturers, service providers, advertisers and advertising agencies shall only make claims which can be substantiated, any research cited in such advertisement must be back by actual research, shall not mislead customers or exploit the lack of trust of the consumers
3. Due Diligence and disclosures of endorses: Any person endorsing any product or service in an advertisement must reflect genuine and reasonably current opinion by endorser and must not be deceptive , the Guidelines further provide that in the event an Indian national is prohibited from endorsing any product or service, the obligation of due diligence shall apply to any foreign national endorsing such products or services.
Further any endorser having material connection with product or service advertised must disclose such connection in the advertisement
4. Penal Provisions: The penal provisions laid out for misleading advertisements in the Consumer Protection Act,2019 shall apply to violations committed under the guideline which permit the Central Authority prescribed under the Act to investigate any advertisement which prima facie seems misleading and may cause such advertisement to be discontinued and may impose penalties including imprisonment for a term which may extend to two years and with fine which may extend to ten lakh rupees; and for every subsequent offence, be punished with imprisonment for a term which may extend to five years and with fine which may extend to fifty lakh rupees.
Written by-
Simran Grover