Fraudulent advertisements in India

Living in an age of advertisement, we are perpetually disillusioned. The perfect life is spread before us every day, but it changes and withers at a touch -J. B. Priestley.

Some of the ad men and brands have taken the quote quite literally. As a consumer a tempting advertisement on television, at times makes us buy products that we don't even need. Imagine the impact when we are looking out to buy a particular product. The 'ever-so-shiny' advertisements many times, leave us with a feeling of embitter after spending a fortune on certain products.

When buying a product, a consumer today mostly relies on what he sees and hears about it. Most of this hearing and seeing comes from the advertisements shown about the product. Television, print, outdoor, radio, events, digital etc are all means of promotion of a product.

Though, there is no precise law or act that deals specifically with fraudulent or consequences of fraudulent advertisements, the consumer can claim relief up to a certain extent under the Consumer Protection Act, 1986, the Monopolistic and Restrictive Trade Practice under MRTP Act, 1969, etc.

Deceit in terms of quality, quantity, danger, services, price, etc. that practically prejudice a person's freedom of choice, all constitute fraudulent advertisements. Announcing a free gift with a particular product and increasing its amount also constitutes a fraudulent advertisement.

Fraudulent advertisements:

Real estate:

Though we see advertisements making over the top claims for many products, but one area where the buyer can end up losing a lofty amount of cash and experience harassment is the real estate.

Most of the builders in India have a very similar strategy to sell houses. This begins generally with an appealing print advertisement or a gleaming hoarding offering homes at a pre sale discount and promising delivery within the guaranteed period. Post this the home buyers agree 10-20 percent of the total cost as an advance. The story begins subsequent to this. Many times a buyer does not get the possession of the property even after waiting for 3-4 years or the property offered does not match up to the standards promised to the buyer.

The paucity of regular authority to monitor the advertisements before they are made public is leading to an increased number of innocent people being hoodwinked by the developers. The dawn of digital advertising has made it even more difficult to keep a tab on the advertisements on the electronic media.

In case of buying a property a person should carry the due diligence on his part as well. It is always said that one shouldn't completely rely on what s/he sees or hears. Hence it's always sensible to carry out a personal level research as well.

Food Products:

More than often FMCG companies make false claims about their products. The claims can be with regards to the weight, nutritional value, ingredients etc of the item for consumption. All of this constitutes unfair trade practice.

Each day, we see advertisements making claims of, quick results from slimming to healthy heart and faster growth for children. There are various chocolate drinks for kids that claim for them becoming taller, sharper etc. Certain cereal brands claim to slim you down if eaten regularly. These brands mostly don't carry out any studies to prove the claims made by them. As a result, consumers are left behind feeling cheated. At numerous instances consumers also face major health hazards due to the harmful effects of the product not mentioned in the advertisements and promotions of the product.

Electronic items:

Under the Consumer Protection Act, 1986, a consumer has every right to be protected against marketing of goods and services which are hazardous to life and property. It provides the right to be informed about the quality, quantity, potency, purity, standard and price of goods, or services. Hence, if a consumer is buying an electronic item or the likes s/he has every right to know the open and accurate details of the product.

Despite following a complete due diligence activity, if a person is harmed and needs righteousness by the court. S/he needs a valid agreement of the property/ commodity bought original advertisement & related paperwork to prove the facts and the harm caused.

Proof required to make claim:

To institute that an advertisement is false, a petitioner must prove that:

A false statement of fact has been made by the advertiser about the goods, services, or commercial activity leading to deception of the audience. And the deception has either resulted in or is likely to result in injury.

A person must furnish all the documents, deeds, agreements etc that s/he has in order to solicit a remedy incase harmed already.

Remedies:

  • Injunctive Relief -Injunctive relief is granted by the courts when there is a deception caused due to the ad being misleading.
  • The courts can also award a plaintiff monetary damages. To collect damages, the plaintiff generally has to show, as a consumer, s/he was actually deceived or that the defendant used the false advertising in bad faith.

Protection in case of misrepresentation to the consumers:

Though the Consumer Protection Act, 1986 classifies misleading advertisements as 'unfair trade practice' lately there has been an increasing need to specifically guard the consumer against misleading advertisements.

  • The Advertising Standards Council of India (ASCI) was founded in 1985. The three main constituents of advertising industry viz advertisers, advertising agencies and media came together to form this independent NGO. The aim of ASCI is to maintain and enhance public's confidence in advertising. Their mandate is to make sure that all advertising material must be truthful, legal, and honest; it should also not objectify women. It should be safe for consumers, especially children and fair to their competitors.
  • The Real Estate (Regulation and Development) Bill, approved by the cabinet, seeks to provide a uniform regulatory environment to the sector. It also intends to make it mandatory for developers to launch projects only after acquiring all statutory clearances from relevant authorities.
  • The Food Safety and Standards Authority of India (FSSAI). FSSAI was established under Food Safety and Standards Act, 2006 which consolidates various acts & orders that have handled food related issues in various Ministries and Departments. FSSAI has been created for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption.
  • District Consumer Disputes Redressal Forum (DCDRF): Also known as the "District Forum" established by the State Government in each district of the State.
  • State Consumer Disputes Redressal Commission (SCDRC): Also known as the "State Commission" established by the State Government in the State. It is a state level court that takes up cases valuing less than INR10 million
  • National Consumer Disputes Redressal Commission (NCDRC): Established by the Central Government. It is a national level court that works for the whole country and deals with amount more than INR10 million.

Other than these there are many laws that elucidate and work towards the rights of a consumer:

  • The Sales of Goods Act, 1930
  • The Drugs and Cosmetics Act, 1940
  • The Pharmacy Act, 1948
  • The Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 etc

Currently there are numerous platforms for a product to get itself advertised and publicised. Despite being a challenging task, it is the job of the brand to verify whether the content of those advertisements, adheres to the codes of conduct under various laws.

The number of advertisements which are patently false and misleading, promoting dubious products and making unsubstantiated claims is significant in India. Infact, most of these advertisements escape the scrutiny of regulatory bodies.

In this world of claims and counter claims, it is extremely important for a consumer to keep his eyes and ears open and not let any false claim take him for a ride.

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