Guidelines for Prevention of Misleading Advertisements and Endorsements of Misleading Advertisements, 2022 – Advertisement – Misleading advertisement – Deceptive advertisement – Responsibility and duty of manufacturers, service providers, advertisers and advertising agencies: Held: Advertisers/advertising agencies and endorsers are equally responsible for issuing false and misleading advertisements – Such endorsements that are routinely made by public figures, influencers, celebrities etc. go a long way in promoting a product – It is imperative for them to act with a sense of responsibility when endorsing any product and take responsibility for the same, as reflected in Guideline No.8 of the Guidelines, 2022 that relates to advertisements that address/target or use children for various purposes and Guideline No.12 that lays down the duties of manufacturers, service providers, advertisers and advertising agencies to ensure that the trust of the consumer is not abused or exploited due to sheer lack of knowledge or inexperience – Guideline No.13 requires a due diligence to be undertaken for endorsement of advertisements and requires a person who endorses a product to have adequate information about, or experience with a specific good, product or service that is proposed to be endorsed and ensure that it must not be deceptive. [Para 21] Consumer Protection – Awareness – Food and health sector – Promote mechanism for consumer complaints:
Held: All the statutory provisions/rules, regulations and guidelines have a salutary object, which is to serve the consumers and ensure that they are made aware of the kind of product that is being offered for purchase, particularly in the food and health sector – This Court is of the opinion that the concerned Ministries ought to set up and promote a mechanism which encourages the consumer to lodge a complaint and for the said complaint to be taken to its logical conclusion, instead of simply being marked/forwarded to the concerned State authority, thus leaving the consumer clueless as to the final outcome of the complaint made. [Para 22]
Cable Television Networks Rules, 1994 – r.7 – Constitution of India – Enforcement of the fundamental right to health – Awareness regarding quality of products – Self-declaration by the advertiser/advertising agency:
Held: In the absence of any robust mechanism enacted in law to ensure that the obligations cast on the advertiser to adhere to stipulations in the Guidelines, 2022 in letter and spirit, it is deemed appropriate to invoke the powers vested in this Court under Article 32 of the Constitution of India for the enforcement of the fundamental right to health that encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies – To fill up this vacuum, it is directed that henceforth, before an advertisement is printed/aired/displayed, a Self declaration shall be submitted by the advertiser/advertising agency on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994 – No advertisements to be run on the relevant channels and/or in the print media/internet without uploading the self-declaration – The said directions to be treated as the law declared by the Supreme Court u/Art.141 of the Constitution. [Paras 23 and 24]
Food, Safety and Standards Act, 2006 – Direction to file affidavit furnishing relevant data with regard to the complaints received by FSSAI:
Held: Ministry of Health and Family Welfare directed to file an affidavit furnishing the relevant data with regard to the complaints received by the Food, Safety and Standard Authority of India (FSSAI) and the action taken on such complaints relating to penalty for selling food not of the nature or substance or quality demanded (Section 50), penalty for sub-standard food (Section 51), penalty for misbranded food (Section 52), penalty for misleading advertisement (Section 53) and penalty for food containing extraneous matter (Section 54) – FSSAI is authorized to take action on its own in the event of any such misleading advertisements coming to its notice, without waiting for any complaint to be received – Therefore, the affidavit proposed to be filed as directed above, shall indicate the nature of action taken by FSSAI on its own, besides on complaints received under the FSSA, 2006 from the year 2018 onwards and the action proposed to be taken by it to deal with misleading advertisements. [Paras 25 and 26]
Directions by the Supreme Court – Advertisement – Misleading advertisement – Deceptive advertisement:
Held: The Counsels for all the State Governments/Union Territories, are directed to file independent affidavits of the Licensing authorities in each State/UT regarding the action taken by them in respect of misleading advertisements being published/displayed in the press/electronic media that run contrary to the provisions of the DMR, 1954 and Rules, DC Act, 1940 and C.P. Act, 1986 – The affidavits shall focus on the action taken for the period from the year 2018 onwards. [Para 8]
Drugs and Cosmetics Rules, 1945 – r.170 – The Union of India was called upon to explain its letter dated 29th August, 2023 issued by the Ministry of AYUSH and addressed to all State Governments/Union Territories and Drug Controllers of the Ministry of AYUSH informing that the Ayurvedic Siddha and Unani Drugs Technical Advisory Board (ASUDTAB) had recommended in its meeting that r.170 of the Drugs and Cosmetics Rules, 1945 be deleted from the Drugs and Cosmetics Rules, 1945 and pending action on the said recommendation, all authorities were directed not to initiate any action under the said rule:
Held: The ASUDTAB had recommended that final notification be issued for omission of r.170 – The said recommendation was placed before the Ministry of Law and Justice for approval – The Ministry recommended that the final notification should be published, if no objections/suggestions are received – The said development took place in the month of July, 2023 – However, the Ministry of AYUSH proceeded to issue the Notification only on 02nd February, 2024, inviting objections to the recommendations/suggestions to the draft notification from all stakeholders – No further steps have been taken by the Ministry – There is no clarity as to how many objections were received on the draft notification – The Ministry of AYUSH is directed to expedite steps proposed to be taken by it – In view of the Court, an administrative instruction issued by virtue of the letter dated 29th August, 2023, cannot put on hold r.170 of the Drugs and Cosmetics Rules, 1945 so long as it remains enforceable in law – Additional Solicitor General submitted on instructions that the Ministry shall forthwith withdraw the letter dated 29th August, 2023 – Same was directed to be given an immediate effect. [Paras 9, 10, 11]
Consumer Protection Act, 1986 – Central Consumer Protection Authority (Chapter III) – Use of:
Held: When the C.P. Act, 1986 has dedicated an entire chapter to the Central Consumer Protection Authority (Chapter III) that contemplates establishment of a Central Consumer Protection Authority by the Central Government to regulate matters relating to violation of the rights of the consumers, unfair trade practices and false/misleading advertisements which are prejudicial to the interest of the public and consumers and to promote, protect and enforce the rights of the consumers as a class, the said provisions ought to be used with much more vigour and intensity. [Para 18]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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