By Rupin Chopra and Shantam Sharma
In the realm of consumer goods, advertising serves as a powerful tool to inform and persuade. However, recent events have shed light on the detrimental consequences of misleading advertising practices, prompting a closer examination of regulatory frameworks in India. From the Supreme Court’s landmark decision in the case of Indian Medical Association v. Union of India (2022)[1] to the scrutiny faced by the nutraceutical industry, the need for robust legal provisions to govern advertising claims has never been more apparent.
The Patanjali Saga: A Wake-Up Call
The legal battle between the Indian Medical Association (IMA) and Patanjali Ayurved, led by Baba Ramdev, serves as a stark reminder of the perils of disseminating misleading advertisements. The Supreme Court’s verdict in favor of the IMA, citing Patanjali’s derogatory advertisement against allopathic medicine, underscores the importance of truthfulness and accuracy in advertising. This decision not only led to a ban on Patanjali’s marketing activities but also highlighted the urgent need for stricter regulation of advertising claims in India.
Moreover, recent research shedding light on the quality and accuracy of advertised claims in the supplement industry adds another layer to the debate. An observational analysis of popular protein powders in India revealed discrepancies in quality, labeling, and advertised claims. Published[2] in the peer-reviewed journal Medicine, these findings underscore the prevalence of misleading advertising practices and the need for stricter regulatory measures.
Understanding the Legal Framework: DOMA, CPA, and Food Safety Regulations
In India, several laws govern advertising practices, each aimed at ensuring transparency, fairness, and consumer protection. The Drugs & Other Magical Remedies Act, 1954 (DOMA)[3], and the Consumer Protection Act, 2019[4] (CPA) lay down provisions to curb misleading advertisements and penalize offenders.
Under DOMA, publishing misleading advertisements regarding drugs is explicitly prohibited, with violators facing imprisonment or fines. Similarly, the CPA imposes stringent penalties for false or misleading advertisements, aiming to safeguard consumer interests and uphold the integrity of the market.
Moreover, for nutraceuticals and food products, the Food Safety and Standards (Advertising and Claims) Regulations, 2018, provide comprehensive guidelines to ensure the veracity and clarity of advertising claims.
Rule 4: Ensuring Truthful and Meaningful Claims
Rule 4 of the Food Safety and Standards (Advertising and Claims) Regulations, 2018[5], serves as a cornerstone in maintaining the integrity of advertising practices in the food industry. Its primary objective is to guarantee that all claims made in advertisements are not only accurate but also comprehensible to consumers, thereby fostering transparency and trust.
One of the fundamental principles outlined in Rule 4 is the requirement for claims to be truthful and unambiguous. This means that any assertion made about a food product must be substantiated by scientific evidence and must not mislead consumers regarding the product’s characteristics or benefits. For instance, a claim stating that a certain snack is “low-fat” must be supported by data demonstrating its reduced fat content compared to other similar products.
Moreover, Rule 4 prohibits advertisements from encouraging or condoning excess consumption of a particular food. This is crucial in promoting healthy eating habits and preventing the propagation of misleading information that could potentially harm consumers’ well-being. Advertisements should instead focus on promoting balanced diets and responsible consumption practices.
Another aspect addressed by Rule 4 is the requirement for claims to specify the number of servings of the food per day for the claimed benefit. This ensures that consumers are aware of the recommended intake of the product to derive the purported benefits without overconsumption. For example, if a breakfast cereal claims to provide essential nutrients, it should specify the recommended serving size to achieve these benefits effectively.
Furthermore, Rule 4 emphasizes the importance of consistency between advertising claims and the information provided on the product label. Any discrepancy between the two could lead to confusion among consumers and undermine their trust in the product. Therefore, advertisers must ensure that claims made in advertisements align with the nutritional content and other relevant details provided on the product packaging.
For instance, if a food product claims to be low in fat due to a specific cooking method, this information must be prominently displayed on the packaging, allowing consumers to assess the product’s suitability for their dietary needs.
In addition to these provisions, Rule 4 also addresses the use of trademarks, brand names, and fancy descriptors in advertising. Advertisements must not employ such elements in a manner that misleads consumers about the nature or attributes of the food product. If a brand name suggests certain qualities that the product does not possess, a disclaimer must be included to clarify this discrepancy and prevent consumer deception.
Rule 5: Regulating Nutritional Claims
Rule 5 of the Food Safety and Standards (Advertising and Claims) Regulations, 2018, plays a vital role in ensuring the accuracy and reliability of nutritional claims made in advertisements. With the increasing emphasis on healthy eating and nutrition, it is essential to regulate the information provided to consumers regarding the nutritional content of food products.
One of the key components of Rule 5 is the categorization of nutritional claims into two types: nutrient content claims and nutrient comparative claims.
Nutrient content claims focus on highlighting specific nutritional attributes of a food product, such as being “high in fiber” or “low in sodium.” These claims must comply with the conditions specified in Schedule I of the regulations, ensuring that they are substantiated by scientific evidence and not misleading to consumers.
Nutrient comparative claims involve comparisons between different versions of the same food or similar foods. For example, a comparative claim might assert that a particular brand of yogurt contains “50% less sugar” than its leading competitor. To prevent confusion among consumers, Rule 5 stipulates specific criteria that must be met for such claims, including the minimum percentage difference in nutritional parameters between the compared foods.
Furthermore, Rule 5 emphasizes the importance of providing clear and accurate information to consumers when making nutritional claims. Advertisements must clearly identify the foods being compared and provide the relative difference in claimed parameters, expressed as a percentage, fraction, or absolute amount. This enables consumers to make informed decisions based on meaningful comparisons between products.
Additionally, Rule 5 addresses the use of equivalence claims, which assert that a food product contains the same amount of a nutrient as another food. For example, a breakfast cereal might claim to contain “as much fiber as an apple.” However, such claims must be backed by evidence demonstrating that the amount of the nutrient in the labeled food is equivalent to that found in the reference food, per standardized serving size.
Penalties for Non-Compliance
In addition to outlining regulatory requirements, the Food Safety and Standards (Advertising and Claims) Regulations, 2018, also specify penalties for non-compliance. Rule 13 stipulates that any person advertising or party to the publication of non-compliant advertisements shall be penalized as per Section 53 of the Food Safety and Standards Act, 2006[6]. The amount of fine for non-compliance with advertising regulations can extend up to ten lakh rupees. This provision underscores the seriousness of adhering to advertising regulations and the consequences of misleading consumers.
Conclusion: Upholding Integrity in Advertising Practices
In conclusion, the recent legal developments surrounding advertising claims in India underscore the critical need for regulatory compliance and enforcement. By adhering to laws governing advertising practices and upholding truthfulness and accuracy in advertising, businesses can build trust with consumers and contribute to a fair and transparent marketplace. Effective implementation of these regulations is essential to safeguard consumer interests and promote public health and well-being. Ultimately, the onus lies on companies to prioritize ethical advertising practices, thereby fostering a culture of integrity and accountability in the industry.
[1] WRIT PETITION(CIVIL) NO.645/2022
[2] Citizens protein project: A self-funded, transparent, and concerning report on analysis of popular protein supplements sold in the Indian market. Available at: https://journals.lww.com/md-journal/fulltext/2024/04050/citizens_protein_project__a_self_funded,.15.aspx?context=latestarticles
[3] Available at: https://www.indiacode.nic.in/bitstream/123456789/1412/1/195421.pdf
[4] Available at: https://www.indiacode.nic.in/bitstream/123456789/15256/1/a2019-35.pdf
[5] Available at: https://fssai.gov.in/upload/uploadfiles/files/Compendium_Advertising_Claims_Regulations_04_03_2021.pdf
[6] Available at: https://www.indiacode.nic.in/bitstream/123456789/7800/1/200634_food_safety_and_standards_act%2C_2006.pdf
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