Ad Industry Thrives On Creativity And Freedom Of Expression, Would Loathe A Govt Dictated Regulation: Delhi High Court

The Delhi High Court on Monday observed that the advertisement industry thrives on creativity and freedom of expression and would loathe a government dictated regulation, adding that not many industries enjoy a self- regulated regime.

Justice Manoj Kumar Ohri made the observation while dismissing a plea filed by Dabur India seeking to restrain the Advertising Standards Council of India (ASCI) from creating impediments in the broadcast of its advertisement regarding the health nutrition drink ‘Vita’.

Dabur had challenged an order passed by the trial court dismissing its plea seeking temporary injunction against a communication issued by ASCI's Fast Track Complaints Panel (FTCP) on February 4, 2022 requesting it to withdraw its claims relating to the product.

The FTCP had said that the claims made by Dabur regarding the product are not backed by science, adding that though the ingredients are individually known to be immunity boosters, their collective efficacy is not established.

FTCP had said that Dabur must go through a process of clinical trials to empirically prove the claims made by it.

It was submitted on behalf of Dabur India that if the impugned communication is not stayed, there is a likelihood that the Ministry of Information & Broadcasting may initiate some action against it.

On the other hand, it was submitted on behalf of the Council that Dabur India is its member and is also governed by the ASCI Code, 2006.

The counsel laid stress on the self-regulatory mechanism under the said Code and submitted that no cause of action has arisen in the matter as the impugned communication is not statutory but only recommendatory in nature.

Observing that the findings of FTCP are “quite damning” of the claims made by Dabur India, the court noted that the Council acts as a self-regulatory body that the advertisement industry has set-up for itself.

“Advertisement industry thrives on creativity and freedom of expression and would loathe a Government dictated regulation. Not many industries enjoy a self- regulated regime. It would be unfair on the part of the appellant, who is a member of the respondent, to enjoy the privileges of self-regulation and in the same breadth question the authority of the respondent to enforce its code,” the court said.

The court also noted that the norms laid down by the Council have been recognized as an “advertising code” and accorded legal sanctity in the Cable Television Networks Rules, 1994.

“Though the Rules are not applicable to the advertisement in question as the same is not telecast on Cable TV and is restricted to the appellant’s own website and social media, however the sanctity accorded to the respondent’s code is clearly established, only to answer the appellant,” the court said.

Justice Ohri observed that Dabur’s advertisement makes a “very emphatic and confident claim” that “no other health drink gives your child better impunity”. It was noted that the said phrase is the centerpiece of the advertisement by which the customers are told that all other products in the market are inferior to its product.

“Even if the competitors have not been named, but clearly the intent is to run down the competition, that too, with a claim whose scientific basis has been doubted by FTCP,” the court said.

The court observed that at the stage when the efficacy of the product is yet to be established as per the established norms, the claims made by Dabur in the advertisement may well be misleading.

“However, there is very thick line that divides a harmless hyperbole and misleading claims made in advertisements, especially, when the products relate to human consumption and claims are made about the superlative qualities of the products on human health. According to this Court, on a prima facie view, the advertisement in question falls in the latter category,” the court said.

Upholding the impugned order, the court observed that no evidence was produced before the trial court to show that the Council tried to exceed its remit by sending communications to broadcasters directly requesting them to stop the broadcast of the advertisement in question.

“Pertinently, it is appellant’s own case that the respondent does not have the authority to block the broadcast of the advertisements and that it could only send its recommendations to the Government of India to issue necessary directions. The decision to block the broadcast rests with the Government and not the respondent,” the court said.

Title: DABUR INDIA LIMITED v. THE ADVERTISING STANDARDS COUNCIL OF INDIA

Citation: 2023 LiveLaw (Del) 18

Click Here To Read Order