The Impact Of Misleading Advertisements On Consumer’s Right To Free Choice - A Comprehensive Study
Author: LawSphereX
Category: Constitutional & Human Rights
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THE IMPACT OF MISLEADING ADVERTISEMENTS ON
CONSUMER’S RIGHT TO FREE CHOICE: A
COMPREHENSIVE STUDY
Mohammad Anas, Research Scholar, Department of Law (Aligarh Muslim University)
ABSTRACT
Advertising is an essential element of modern commerce, significantly influencing consumer behaviour across multiple platforms, including television, radio, print media, billboards, social media, and online channels. While advertising serves as a vital communication tool for businesses to inform and persuade consumers, it also has a darker facet—misleading advertisements. These deceptive promotional tactics interfere with consumers’ ability to make informed choices by presenting false, exaggerated, or incomplete information. Misleading advertisements employ various strategies, such as exaggerated claims, visual manipulation, and omission of critical facts, which can lead consumers to make ill-informed purchasing decisions.
The legal landscape surrounding misleading advertisements in India reflects a complex balance between protecting consumer rights and upholding the constitutional guarantee of freedom of speech. Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression, which extends to commercial speech, as recognised in Indian Express Newspaper v. Union of India (1984 SC) and Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. (1995 SC). However, this freedom is not absolute, misleading and deceptive advertisements fall outside the protection of Article 19. Judicial precedents, such as the Hindustan Unilever Limited v. Sebamed (2022 Bom. HC) highlights the judiciary’s proactive role in addressing the ethical and legal challenges posed by misleading advertisements. The Bombay High Court’s ruling emphasised the necessity for fair trade
practices and underscored the importance of consumer protection laws in ensuring a fair marketplace. This abstract explores the implications of misleading advertisements on consumer autonomy, the ethical responsibilities of advertisers, and the legal mechanisms designed to curb deceptive practices. It aims to analyse the tension between protecting commercial speech and preserving consumers’ right to make informed choices, shedding light on the effectiveness of existing legal frameworks in addressing this issue. Keywords: Misleading advertisement, Constitution of India, Patanjali
INTRODUCTION
Advertisements have become an integral part of modern society, influencing consumer behaviour through various media platforms such as television, radio, print publications, billboards, social media, and online channels. They are a crucial tool for businesses, organisations, and individuals to communicate information, promote products or services, and shape consumer perceptions. However, alongside the benefits of advertising comes the darker reality of misleading advertisements. These deceptive promotional tactics interfere with consumers’ freedom of choice by presenting false, exaggerated, or incomplete information, leading individuals to make purchasing decisions they might otherwise avoid if fully informed. Misleading advertisements encompass a range of deceptive practices.
Advertisers often use exaggerated claims, visual manipulation, or the omission of crucial details to make their products appear more effective or appealing than they truly are. For example, some advertisers claim that their product is the “best” or offers “unmatched benefits” without any substantiated evidence. A common instance is the promotion of weight loss products that promise significant results without exercise or dietary restrictions, despite a lack of scientific backing. Moreover, images and videos are frequently manipulated to set unrealistic expectations. Cosmetic products, for instance, might be marketed using airbrushed images that make it seem as though they can completely erase imperfections, misleading consumers about their efficacy.
The impact of such deceptive practices on consumer autonomy has not gone unnoticed by the Indian judiciary. In the landmark case Hindustan Unilever Limited v. Sebamed,1 the Bombay High Court addressed the issue of misleading comparative advertisements. Sebamed, a skincare brand, ran advertisements comparing its product to that of Hindustan Unilever Limited (HUL), making claims about the pH levels of competing soap brands. HUL argued that Sebamed’s advertisements misled consumers by making claims that did not align with scientific facts and disparaged well-established products. The court emphasised the necessity of maintaining fair trade practices and ruled that misleading advertisements could not be allowed to distort the market by spreading unverified or disparaging claims.
This case underscores the critical role of accurate advertising in upholding consumer rights and ensuring a fair marketplace. Another knot is that how can a balance be maintained between freedom of speech, in our case ‘commercial speech’ and where the line needs to be drawn that it does not affect the right of making an informed decision by a consumer, meaning it should not be vague enough and how far the definition can be stretched. Article 19(1)(a)2 of the Constitution guarantees the right to freedom of speech and expression to all citizens of India, and the essential corollary to the same is the right to be informed and access to information. In Romesh Thappar v. State of Madras3, the Supreme Court held that Article 19(1)(a) includes the freedom of press, however, it was in Indian Express Newspaper v.
Union of India4 that the Supreme Court held that commercial speech is protected under the ambit of free speech and expression under Article 19. The Supreme Court observed that “We are of the view that all commercial advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are
1 2022 Bom. HC.
2 The Constitution of India, 1950.
3 1950 SC.
4 1985 SC.
issued by businessmen and its true character is detected by the object for the promotion of which it is employed. ” The above position was elaborated upon in Tata Press Ltd v. Mahanagar Telephone Nigam Ltd. 5 The Supreme Court by upholding the right of the consumer to be a recipient of commercial speech stated that, “An advertisement giving information regarding a life-saving drug may be of much more importance to the general public than to the advertiser who may be having purely a trade consideration. Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of individuals to listen, read and receive the said speech. ” Further, the Supreme Court also held that misleading and deceptive advertising would not fall within the protection of Article 19.
The judgment stressed that misleading advertisements infringe upon consumers’ right to make informed decisions, thereby affecting their freedom of choice. The Court also emphasised the role of consumer protection laws in safeguarding this right, thereby reinforcing the need for stringent regulations against deceptive marketing practices. These cases demonstrate how misleading advertisements not only distort consumers’ perceptions but also erode trust in the market and further infringe upon fundamental rights. The prevalence of such advertisements raises crucial questions about the ethical and legal responsibilities of advertisers. By manipulating consumer choices, deceptive marketing practices undermine the foundational principles of informed consent and transparency.
This research will delve into how misleading advertisements compromise consumer freedom and examine the effectiveness of existing legal frameworks in protecting individuals from such deceptive practices.
BALANCE OF INTEREST BETWEEN RIGHT TO FREE SPEECH AND
EXPRESSION AND MISLEADING ADVERTISEMENTS
Every manufacturer or a company advertises its product to raise product awareness and to
5 1995 SC.
represent itself in such a manner that the consumer chooses only that company’s product. Granted, every company has a right to sell and display its product in any manner it wants, but it cannot exaggerate the sale so much so that it deceives the consumer or plays a pivotal role in undermining its competitive company’s sales in an unlawful manner. In Tata Press Limited v Mahanagar Telephone-Nigam Limited6, it was held that, “that “commercial speech” is a part of the freedom of speech and expression guaranteed under Article 19(1) (a)7of the Constitution. ” The question arises is can commercial speech be ambiguously exploited in a manner that grants a company the right to sabotage its competitors by deceptively promoting its own product?
This includes exaggerating product qualities, making unsubstantiated claims, or misrepresenting facts to mislead consumers into believing that their product is superior to that of a competitor. Such practices are not only ethically questionable but also threaten the very principles of fair competition and consumer protection. By using advertising to distort consumer perception through deceptive tactics, companies risk undermining trust in the marketplace, creating a ripple effect that harms both consumers and businesses. This raises a critical debate about the boundaries of commercial speech and whether it should ever be permitted to sacrifice integrity and transparency in the pursuit of profit. For instance, in Horlicks Limited & Anr.
v Zydus Wellness Products Limited8, issue was raised by the plaintiff that the defendant is trying to deceive the consumers by stating that one of its product (Complan) health drink’s one cup is equivalent in nutrition to two cups of Horlicks (plaintiff’s product). The Court observed that making a truthful comparison is allowed and is in fact protected under Article 19(1)(a)[4] and, until and unless the advertisement does not extend beyond the allowed grey areas and becomes false, misleading, unfair or deceptive advertisement, it can be allowed.
6 Ibid.
7 The Constitution of India, 1950.
8 AIRONLINE 2020 DEL 701.
The court further observed that, “while truthful disparagement is permissible, untruthful disparagement is not permissible. ” Untruthful disparagement, often referred to as trade libel or product disparagement, occurs when someone makes false or misleading statements about a person’s or company’s goods, products, or services, which harm the reputation or business of the target. The false claims are intended to discredit or damage the business's standing in the market or its relationships with customers. In the case the serving size was different hence the Court also told the defendant to highlight the disclaimer even more as the size was different, the disclaimer was in a very small font, and there was no voice over specifically mentioning the difference in portion size. Does highlighting positives imply negatives?
Merely stating the positives about a product of one’s own company does not automatically imply the negatives in the product of another competing company. In Dabur India Ltd. v M/S Colortek Meghalaya Pvt. Ltd. 9, the plaintiff stated that the defendant in its advertisement of Good Knight mosquito repellent cream is intentionally highlighting that they use ‘oil’ as one of the ingredients which does not cause ‘rash’. The plaintiff contended that this line of not causing rash was conspicuously used to indicate that plaintiff’s own mosquito repellent cream ‘Odomos’ causes rash. The Delhi High Court clarified that if such contention was paid heed then it would mean that all competitive companies, which will sell a similar product, would disparage the plaintiff’s product due which the plaintiff shall be able to maintain its ‘monopoly’.
Hence, the court observed that the plaintiff need not be hyper-sensitive and stated that, “while hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if it does so, the advertiser must have some reasonable factual basis for the assertion made. It is not possible, therefore, for anybody to make an off-the-cuff or
9 2010 Delhi HC.
unsubstantiated claim that his goods are the best in the world or falsely state that his goods are better than that of a rival.”
MISLEADING ADVERTISEMENTS AFFECTS CONSUMER’S RIGHT OF FREE
CHOICE, RIGHT TO SAFETY & HEALTH, RIGHT AGAINST UNFAIR TRADE
PRACTICES
Advertisements provide a number of benefits to consumers by giving information through which a consumer can be notified about new items, services, promotions, and discounts on the market. This information enables consumers to keep updated and make informed decisions. The advertisements also act as a source of entertainment, thus engaging the consumers and leaving a creative and memorable impact so as to captivate viewers’ attention and create a lasting impression. They act as a problem-solving source by offering answers to consumer’s issues. Overall, advertising plays an important role in the modern economy since they facilitate communication between businesses and customers, drive sales and revenue, and shape market trends. But, have you ever imagined what is the effect of deceiving and misleading advertisements?
They not only affect consumer’s decision-making power but also violate consumer’s right of free choice. It does not matter if the acts were done malignantly or unintentionally. In India, consumer rights are protected by a variety of laws and regulations. Moreover Article
2110 of the Constitution acts as guardian by protecting a consumer’s right to free choice, right
to life and liberty. How? Well, it is the duty of the advertiser who is selling its products that he provides a non-deceptive and true information so that the consumer can make an educated decision which is actually beneficial to him. If there was another product which could have been a better choice for the consumer, but only because of manipulation of advertisement the consumer chose another
10 The Constitution of India, 1950.
product, then even though the consumer does not know at that point of time, but his right of free choice has been affected, and on top of that, another manufacturer whose product was not chosen, his right to make an honest living has been affected. Another point that requires consideration is, just because an advertisement is able to lure customers, the sale of that product is high, but that product comprises poor ingredients when compared to another similar product by a different manufacturer, but that manufacturer does not advertise his products on a larger scale. This definitely affects a consumer’s right to good health. Imagine there are two brands of fruit juice: JuiceBlast and PureFruit. JuiceBlast is heavily advertised on television, social media, and billboards.
The ads feature celebrities endorsing the product, catchy jingles, and claims about the juice being refreshing and full of flavour. As a result, JuiceBlast becomes extremely popular, and sales skyrocket. However, the ingredients of JuiceBlast include high-fructose corn syrup, artificial flavours, and a minimal percentage of real fruit extract, making it less healthy than it appears. On the other hand, PureFruit is made entirely from organic, fresh fruit, without any added sugar or artificial ingredients. Despite its superior nutritional value, PureFruit is not advertised on a large scale because the manufacturer has a limited marketing budget. Consequently, not many consumers are aware of PureFruit, and its sales remain low.
In this scenario, even though JuiceBlast is more popular and widely consumed due to extensive advertising, consumers are inadvertently deprived of the healthier option, PureFruit. This compromises the consumers' right to good health, as they are influenced by the alluring marketing strategies of JuiceBlast rather than being informed about the healthier choice. This ubiquity of deceptive marketing poses a serious threat to fundamental rights. Misleading advertisements fool consumers, preventing them from making educated decisions about the items and services they buy. One of the most essential parts of consumer rights is the ability to select products and services based on accurate and reliable information. Misleading advertisements impair consumer freedom by distorting the information available to them.
When advertisements present false claims or overly amplify a product’s benefits, consumers are often led to believe they are making educated and sound choices. However, in reality, they are being deceived and manipulated, resulting in decisions that do not reflect the actual value or quality of the product. This practice undermines consumer trust and compromises their ability to make informed judgments based on accurate information. For example, marketing for weight loss products frequently promises significant benefits without providing scientific data to back up their claims. Consumers who are desperate to lose weight may be drawn to these goods, believing they would provide a solution to their problem. However, when the items fail to achieve the claimed outcomes, customers feel misled and disappointed.
Similarly, false ads for financial items, such as investment plans or insurance policies, can encourage customers to make financially disastrous judgements. Advertisers can mislead consumers into making investments that are not appropriate for their requirements or financial situations by painting a skewed picture of the risks and advantages associated with these goods. Suppose, there is a financial company called SafeGrowth Investments that advertises a new investment product called the ‘Secure Future Bond. ” The advertisements feature families enjoying luxurious vacations, retirees living comfortably, and a narrator emphasising that this bond is a “risk-free way to grow your wealth” with “guaranteed returns.
” The marketing materials gloss over important details, such as the fact that the bond is actually linked to the performance of a volatile foreign real estate market and carries a substantial risk of loss if the market does poorly. Many consumers, including a young couple saving for a down payment on their first home and a retiree looking to protect her life savings, are drawn to the product because they believe it will provide stable and reliable returns. They are misled by the advertisement into thinking the investment is suitable for their financial situations and goals. However, once they invest, they realise that Secure Future Bond is far from risk-free. The market takes a downturn, and the value of their investment plummets, leaving the young couple’s dream of homeownership shattered and the retiree facing financial insecurity.
Another way of misleading advertisement is: Exaggerating about an ingredient being the ‘sole cure’ for any diseases or infection, without efficient scientific data, and luring the consumer to buy the products by merely relying on the term ‘homemade’, ‘desi’, may also affect a consumer’s health, thus violating the consumer’s right to safety. For instance, a recent issue that has again come to light is the Patanjali advertisement. The Indian Medical Association (IMA) had petitioned the Supreme Court in August 2022 in response to an ad by Patanjali that said, “Misconceptions Spread By Allopathy: Save Yourself And The Country From The Misconceptions Spread By Pharma And Medical Industry.
” The petition brought attention to statements made by Ramdev against allopathy, including his use of the insult “stupid and bankrupt science” and his assertion that allopathic medicine was to blame for the cases of COVID-19. Patanjali was additionally charged by the IMA with adding to the pandemic vaccine scepticism. Justice Amanullah had cautioned Patanjali not to claim their products could “completely cure” ailments during the first hearing on November 21, 2023. The court then issued an order regarding this matter that every product that made such a claim would face a cost of ₹1 crore. Patanjali promised that they would not break any branding or advertising regulations and would not make any sweeping claims regarding the effectiveness of its medicines. But, still the advertisements were not taken back.
The ads for Patanjali’s medicines were temporarily banned on February 27, 2024, by the Supreme Court. Noting the “entire country was being taken for a ride”, the top court said in an interim order that Patanjali “cannot advertise or market any of their medicinal products which they claim would treat ailments specified in Drugs and Magic Remedies (Objectionable Advertisements) Act. ”11 Patanjali consumers have soared, especially in the past decade. They are buying the idea that Patanjali is trying to sell, and time and again it has been reported that most of the products for which Patanjali maintains that their products provide the ultimate cure, lack efficient scientific 11 Why the Supreme Court has temporarily banned Patanjali ads, available at Why the Supreme Court has temporarily banned Patanjali ads – Firstpost (last visited on November 07, 2024).
data12. The Supreme Court in August, 2024 has closed the case against Patanjali but ‘it came down heavily’ on both Baba Ramdev and Acharya Balakrishna, and gave them strict warnings to not contempt their restrictions. 13 Such misleading advertisements not only affect a consumer’s right of choice but may also further harm their health, and also decline the probability of approaching proper medication from a company which actually had the cure, thus, further affecting the manufacturer’s right to make an honest sale. Another recent example that came to light was related to Bournvita ‘health drink’. It is manufactured by Cadbury, a subsidiary of Mondelez International. A social media influencer stated that the drink which claims itself to be a ‘health drink’ contains a high percentage of sugar content, which is more than the recommended serving size for children.
On its website Mondelez itself acknowledges Bournvita as a ‘malt drink’, but in its advertisements, Mondelez showcases Bournvita as a ‘health drink’. In its tagline, it states, “here’s no force like the strength within. Strong bones, muscles and an active brain is what this inner strength is made of. Because that's what makes you unstoppable and unbeatable. ” In April, 2024, a notice was issued to all such companies to stop listing drinks and beverages as health drinks, because National Commission for Protection of Child Rights (NCPCR) found that there’s no official definition of a “health drink” in the law. NCPCR has also issued to Modelez India a notice to substantiate its claims and to clarify the allegations that Bournvita has cancer causing colourant along with its high sugar content14.
12 Rohit Sinha, “Misleading Advertisements In India: A Critical Study On Violation Of Consumer's Right By Patanjali Ayurved Limited” Researchgate. net (2015). 13 Patanjali misleading ads: Supreme Court closes contempt case against Baba Ramdev, available at Patanjali misleading ads case Supreme Court closes contempt case against Ramdev - India Today (last visited on November 08, 2024). 14 Explained: Why Bournvita Is No Longer A 'Health Drink' & Who Is The Influencer Behind Its Removal, available at Explained: Why Bournvita Is No Longer A 'Health Drink' & Who Is The Influencer Behind Its Removal (indiatimes. com) (last visited on November 02, 2024).
In 2022, it was reported that fifteen companies withdrew their advertisements after the Central Consumer Protection Authority (CCPA) found them “misleading”. It was reported that till July 2022, the CCPA had issued 129 notices, 71 for misleading, 49 for unfair trade practice, and 9 for violation of consumer rights. The first Safety Notice was issued with regard to helmets, pressure cookers and cooking gas cylinders and the second Safety Notice was issued with regard to household goods including electric immersion water heaters, sewing machines, microwave ovens, domestic gas stoves with LPG.
SOME OF THE REGULATORY FRAMEWORK RELATED TO MISLEADING
ADVERTISEMENTS AND CONSUMER RIGHTS:
1. Consumer Protection Act, 2019 (CPA): The CPA provides a comprehensive framework for
protecting consumer rights and interests, including provisions to regulate unfair trade practices, which encompass misleading advertisements. Section 2(47) of the CPA defines “unfair trade practice” to include false representation, making false or misleading statements, and misleading advertisements that deceive or mislead consumers.
2. Defining “False or Misleading Advertisements” under CPA: Section 2(28), of CPA, defines
misleading advertisements in relation to any product or service. So according to this section misleading advertisement means an advertisement which falsely describes any such product or service; which gives a false guarantee upon the product or service by misleading upon its nature, substance, quality, the quantity, and deliberately conceals important information.
3. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, regulates the
advertisement of drugs and prohibits misleading advertisements regarding drugs and magic remedies. It also restricts the advertisement of drugs for specific purposes, such as promoting sexual pleasure or treating certain diseases. The Act defines terms like "advertisement," "drug," and "magic remedy" and outlines penalties for contravention.
4. Advertising Standards Council of India (ASCI): While ASCI is a self-regulatory organisation
rather than a statutory body, it plays a significant role in regulating advertising content in India. ASCI’s code of advertising standards sets out guidelines for ensuring that advertisements are truthful, fair, and not misleading. In 2023, the ASCI issued guidelines to curb misleading
advertisements. In the guidelines it also defined ‘bait advertisement’ as, “an advertisement in which goods, product, or service is offered for sale at a low price to attract consumers.”15
5. Food Safety and Standards Authority of India (FSSAI): FSSAI regulates advertisements
related to food products and beverages to ensure they comply with food safety and labelling standards. Misleading advertisements for food products can violate FSSAI regulations and may be subject to penalties.
6. Drug and Cosmetics Act, 1940: The Drug and Cosmetics Act regulates advertisements
related to pharmaceuticals and cosmetics. Advertisements for drugs and cosmetics must comply with the provisions of this act, including requirements for accurate representation and compliance with regulatory standards.
7. Indian Penal Code (IPC): Certain provisions of the IPC, such as those related to fraud, false
representations, and cheating, may be applicable to misleading advertisements that involve criminal intent or result in financial harm to consumers or competitors.
8. Competition Law: The Competition Act, 2002, prohibits anti-competitive practices,
including false or misleading advertising that harms competition in the market. The Competition Commission of India (CCI) has the authority to investigate and take action against such practices. Though India has various legislations to curb the issue of such misleading and deceiving advertisements, due to the loopholes in the legislation and the inefficiency of the concerned authorities. We need to work towards putting an end to such issues in India. While laws and regulations exist, their enforcement and coverage frequently fail to reflect the complicated terrain of modern advertising. Here are some suggestions to maintain standards of advertisements:
1. Regulatory bodies: The Advertising Standards Council of India (ASCI) is the principal
governing authority for advertising in India. While ASCI has an important role in regulating 15 ASCI releases guidelines to curb misleading online advertisements, available at ASCI releases guidelines to curb misleading online advertisements (cnbctv18.com) (last visited on November 02, 2024).
advertising content, its jurisdiction is restricted to self-regulation, and its rulings are not legally obligatory.
2. Enforcement challenges: Enforcing existing laws and ASCI regulations can be difficult
owing to a variety of circumstances, including inadequate resources, a lack of consumer knowledge, and complex legal procedures. Furthermore, the proliferation of digital advertising platforms makes it impossible to adequately oversee and control commercials.
3. Need for strengthened legislation: Many experts believe that India requires a stronger
and more comprehensive legislative framework that explicitly addresses deceptive marketing. This could include provisions for harsher sanctions, stricter enforcement methods, and more specific rules for what constitutes misleading advertising.
4. Consumer awareness: In addition to legislative measures, boosting consumer awareness
of their rights and how to recognise misleading marketing is critical. Empowering consumers to identify and report deceptive activities can supplement legal efforts to combat misleading advertising.
5. Global best practices: India can benefit from the experiences of other nations that have
established strong regulatory frameworks to combat deceptive ads. Studying worldwide best practices and applying them to the Indian setting may aid in the effectiveness of legislation. To summarise, while India has certain legal procedures in place to deal with deceptive marketing, better enforcement, clearer rules, and increased consumer knowledge are required to successfully address the issue. Strengthening the legislative framework and regulatory systems, as well as increasing consumer education, are critical steps towards ensuring fair and honest advertising practices in the country, and thus protecting a consumer’s right of free choice.
CONCLUSION
In an era where advertisements permeate almost every aspect of our daily lives, from television and billboards to social media and search engine results, they play a critical role in shaping consumer behaviour. Advertisements inform consumers, help them make choices, and promote
healthy competition among businesses. The intention behind most advertisements is not just to sell products but also to empower consumers by providing them with the information needed to make informed decisions. This, in essence, aligns with the core principles of free choice and informed choice — rights fundamental to a free and fair society. Free choice in consumer behaviour is integral to the functioning of a market-driven economy. Consumers should be able to evaluate products or services and choose the best option for themselves based on accurate, clear, and truthful information. Advertisements, when used ethically, contribute to this process by offering a medium through which consumers can compare offerings, weigh pros and cons, and ultimately make wellinformed decisions.
For instance, a well-drafted advertisement that emphasises the benefits of a particular product or service, without exaggeration or deceit, allows the consumer to decide freely whether it aligns with their needs, preferences, and values. However, the freedom of choice becomes distorted when advertisements resort to deception or misleading claims. In these situations, advertisements do more than just mislead; they rob consumers of their right to make an informed, free choice. When businesses provide false information about the efficacy or benefits of their products, they undermine consumer autonomy. For instance, claims of “miracle cures” or exaggerated benefits in health-related products can manipulate vulnerable individuals into making decisions that may harm their well-being.
These practices not only violate the ethical obligations of advertisers but also pose a significant threat to the consumer’s right to health and well-being. Consumers should not be subjected to coercion or misleading information that influences their decisions in ways that are detrimental to their health or finances. The duty of advertisers extends beyond merely promoting their products; it encompasses a responsibility to respect consumer autonomy, which includes ensuring that advertisements do not mislead, deceive, or otherwise compromise the consumer's ability to make choices based on accurate information. Advertisers must uphold a moral duty to present information transparently and truthfully,
ensuring that their advertisements do not prey on the lack of knowledge or vulnerability of the audience. From a legal perspective, India has established frameworks to address misleading advertisements, most notably under the Consumer Protection Act, 2019. The Act lays down provisions for the protection of consumers against unfair trade practices, including false or misleading advertisements. Under Section 2(47) of the Act, misleading advertisements that falsely describe products or services or make deceptive claims are prohibited. Additionally, the Advertising Standards Council of India (ASCI) has created a code of conduct to guide advertisers in creating truthful and non-deceptive ads. The Food Safety and Standards Authority of India (FSSAI) also regulates advertisements related to food products to ensure claims related to health and safety are accurate.
While these legal provisions offer protection against false claims and unethical advertising, there remain significant gaps in the enforcement of these laws. The reliance on self-regulation by organisations like ASCI, while beneficial, cannot fully address the complexities of the modern advertising landscape. For instance, the growth of digital advertising and social media platforms has created new challenges. Influencers, online platforms, and targeted ads present unique opportunities for deceptive advertising that can be difficult to monitor and regulate effectively. Additionally, advertisements targeting vulnerable groups, such as children or the elderly, often exploit emotional triggers, which calls for a more robust and nuanced regulatory approach.
There is a pressing need for a stronger and more comprehensive regulatory framework that addresses the nuances of contemporary advertising practices, especially in the digital age. A more proactive and well-resourced regulatory body could provide oversight over both
traditional and online advertising spaces. This body should ensure compliance with not only the letter of the law but also the ethical standards necessary for the protection of consumers' rights. Moreover, a better regulatory mechanism could encourage businesses to adopt selfregulation practices that go beyond the minimum legal requirements, promoting a culture of ethical advertising.
Furthermore, the framework should empower consumers to take action when faced with misleading advertisements. This could include establishing clearer guidelines for consumer redressal, such as making it easier for consumers to file complaints or seek compensation for harm caused by false advertising. It is essential that the law keeps pace with the ever-evolving advertising landscape, including the introduction of stricter rules for online platforms, particularly in areas like influencer marketing and targeted ads. In conclusion, while advertisements can certainly serve to inform and guide consumers, they also come with the potential for harm if not regulated carefully. Advertisers have an ethical and legal duty to respect the right of consumers to make informed decisions, which includes ensuring that their advertisements are not misleading, exaggerated, or deceptive.
Indian laws, such as the Consumer Protection Act and the guidelines set by the ASCI, provide a basic framework for protecting consumers from false advertising. However, the rapid evolution of advertising techniques, particularly in digital spaces, demands a more comprehensive, proactive, and enforceable regulatory framework. This will not only safeguard consumer autonomy and health but also foster a more ethical and responsible advertising industry. In the pursuit of protecting free choice, it is vital that advertisers align their practices with the principles of truth, transparency, and consumer wellbeing, while lawmakers work towards strengthening the regulatory mechanisms to ensure these practices are consistently adhered to.