Food Advertising Regulation And Consumer Protection In India

Regulatory Framework Governing Advertising Of Food Products:

Advertisements have been defined to mean audio or visual publicity, representations, through means such as print, electronic media, notices, labels and other documents.^[1] Misleading advertisements violate consumer rights of assurance of access to a variety of goods, the right to be protected from marketing of hazardous goods, and the right to information about the goods^[2]. False, deceptive or misleading advertisements have been restricted under various laws:

Consumer Protection Act 2019: The emergence of e-commerce along with new forms of unfair and unethical business practices in marketing, selling, have made consumers vulnerable, which led to the introduction of the CPA 2019 Act. Under the Act, a misleading advertisement regarding a food product, would mean an advertisement which falsely describes such product, or gives a false guarantee as to its nature, quantity, quality (likely to mislead consumers), or conveys a representation (implied or express) which would constitute an unfair trade practice if made by the manufacturer or seller, or deliberately conceals important information regarding such product.^[3] Unfair trade practices are trade practices to promote the sale or use of such products by adopting unfair, deceptive methods such as: false representations of products as being of a particular quality, quantity, standard; having sponsorship, performance, usefulness which they do not have, or offering them at misleading prices other than which they are ordinarily sold.^[4] Endorsement of an advertisement means a message, verbal statement, signature etc. in an advertisement, which makes a consumer believe that it reflects the personal opinion or experience of the endorser.^[5]

Advertising Standards Council of India: ASCI is a voluntary self-regulatory organisation established in 1985, to promote responsible advertising, to ensure honesty in representations and claims made by advertisements, and to safeguard against the use of advertising for the promotion of products regarded as hazardous to society or to individuals, by codifying the best practices in advertising.^[6] ASCI has adopted a Code for Self-Regulation in Advertising ('Code'), which applies to all stakeholders involved in the commissioning, creation, publishing of advertisements directed to consumers in India or exposed to a significant number of consumers in India. It provides that advertisements of products whose advertising is prohibited/restricted by law, must not circumvent such restrictions by purporting to be advertisements for other products (called as indirect advertising or surrogate advertising).^[7]

ASCI had released guidelines for Celebrities in Advertising in 2017, which placed the onus on the endorsing celebrities to recuse themselves from deceptive or misleading advertisements.^[8] It has also released guidelines for Influencer Advertising in Digital Media in 2021 which mandate the disclosure of all promotional information by celebrities/influencers while advertising any product (a visible disclosure label such as 'collaboration', 'ad', 'partnership') on their posts, to clarify it as an advertisement of the product.^[9]

Food Safety & Standards Act, 2006: Under this Act, misleading or deceptive advertisements through unfair trade practices to promote the sale, supply, consumption of food articles, by falsely representing that the product is of a standard, quality, quantity, or representations concerning the need for, or the usefulness of any food article, or give a guarantee of its efficacy without scientific basis, are prohibited.^[10]

Under the Food Safety and Standards (Advertising and Claims) Regulations 2018^[11], advertisements regarding meal replacement products require prior approval of the FSSAI, and the claims (representations about a product) made in the advertisement regarding a food product should be truthful and unambiguous, and not mislead consumers about their nature. Claims should be compatible with the information given on the label of the product, and disclaimers should be legible. Information regarding nutrition in the food product should be provided on the basis of substantial scientific evidence, and cannot be made for products which increase the risk of disease. The FSSAI can analyse misleading claims, and order the concerned advertiser to withdraw the advertisement and rectify it.

The Cable Television Networks Rules 1994 specifically prohibit any advertisements which directly or indirectly promote the production, sale, or consumption of cigarettes, tobacco products, wine, liquor, or other intoxicants, since they are injurious to health.^[12] However, brands which use their name/logo to sell such prohibited products, have been allowed to advertise other permitted products using the same name/logo (as surrogate advertising), evident in advertisements for Pan Bahar Pan Masala, Bagpiper Soda, Seagram's Imperial Blue CDs, etc.

Regulatory Authorities And Fixing Liability In Food Advertising:

CPA 2019: The Central Consumer Protection Authority has been set up to regulate the violations of false or misleading advertisements, consumer rights and unfair trading practices. A consumer can file a complaint with the Authority against any advertisement which gives or conveys false description of a food product or contains a representation constituting an unfair trade practice etc. Complaints relating to violation of consumer rights or unfair trade practices or false or misleading advertisements (prejudicial to the interests of consumers as a class) may be forwarded either in writing / electronic mode to the Authority/District Collector/Commissioner of a regional office.^[13] The District Collector may, on a complaint or on a reference made to him by the Authority/Commissioner of a regional office, investigate complaints within his jurisdiction and submit his report to the Authority/the Commissioner of a regional office.^[14] The Authority may hold manufacturers and endorsers accountable for the misleading advertisements, and impose a penalty of up to ten lakh rupees.^[15] In case of unfair trade practices endorsed by a celebrity, the endorser would be liable if he failed to exercise due diligence to verify the authenticity of the claims made in the advertisement regarding the product.^[16]

ASCI: Complaints against false and misleading advertisements can be filed before the Consumer Complaints Council ('CCC'), which can investigate them and recommend action to be taken in that regard.^[17] In 2021, the ASCI had investigated a complaint against a print ad regarding Dabur India Limited's product Dabur Chyawanprash, which claimed that consumption of two spoons would provide protection against Covid-19. The CCC opined that it was not established whether the product could protect against Covid-19, and consumers would be misled and left disappointed by this claim, hence the ASCI advised Dabur to suitably modify or withdraw the advertisement.^[18] To enforce its decision regarding an ad which contravenes the Code, the ASCI can intimate the Press Council of India and Ministry of Information & Broadcasting, which can lead to the ad being suspended.

FSS Act 2006: It provides that any person who publishes or is involved in the broadcasting of an advertisement, which falsely describes any food or is likely to be deceptive regarding the nature, substance, quality of any food or gives a false guarantee, will be liable to a penalty of upto ten lakh rupees.^[19] In 2012, FSSAI had initiated prosecution against Heinz India Pvt Ltd. for a misleading advertisement regarding their product Complan, which claimed that a person could grow two times taller after consuming the product, and held it violative of section 24 of the FSS Act.^[20] In 2019, FSSAI had issued a show-cause notice to two McDonald's outlets in Delhi against a print advertisement which 'disparaged freshly-cooked vegetables to promote their own fast foods', citing irresponsible advertising and unapproved portrayal of their foods as meal replacements.^[21]

Scope For Consumer Protection Under The Regulatory Framework:

Claims made in food advertisements must not be unsubstantiated, which would be harmful to the interests, and violate rights of consumers. Consumer protection rests upon fair claims made in the advertisement and due diligence by its endorsers. The ASCI has partnered with the FSSAI to identify advertisements which would violate the provisions of the Food Safety and Standards Regulations, and the FSSAI would investigate them.Such initiatives would guide advertisers towards responsible food advertising, particularly to regulate the increasing social media advertisements.

The ASCI plays an important role in overseeing violations of regulations in the advertising field. The FSSAI has supervisory powers in investigating complaints against misleading advertisements, particularly in the case of food products. Consumers acting in public interest, may file complaints before these two bodies, seeking to hold the advertisers responsible for misleading claims regarding food products. This redressal system has shown good scope for consumer protection so far. The CPA 2019 has now provided for a stronger oversight and redressal mechanism for addressing advertising related grievances, by setting up a Central Authority to investigate misleading food advertisements. It is to be seen how effectively this power would be wielded by the proposed Authority in this regard.

The author is an Advocate and views are personal.

[1] Section 2(1), the Consumer Protection Act 2019