By Rupin Chopra and Apalka Bareja
Introduction
In the beginning of April 2023, a social media influencer [1]uploaded a video alleging Mondelez India-owned chocolate drink ‘ Cadbury Bournvita’ of misleading the public with disingenuous health claims and selling a product majorly made of refined sugar.
The aforesaid video, though now deleted after the influencer was served a legal notice [2]by Mondlez, ruffled enough feathers for the people to lodge a formal complaint with the National Commission for Protection of Child Rights(NCPCR)[3], a statutory body established under the Commission for Protection of Child Rights (CPCR) Act, 2005, against Cadbury Bournvita in relation to the health claims and benefits for children propounded by the said product.
Law for Misleading Advertisements
This conundrum provides a viable opportunity to delve into the advertisement guidelines prescribed by the Food and Safety Standards Authority of India (FSSAI) and the Central Consumer Protection Authority (CCPA) with respect to adverts for children centric food products.
- FSSAI
The FSSAI issued the Food Safety and Standards (Advertising and Claims) Regulations, 2018[4] (Regulations) to ensure fairness in claims and advertisements for food products and hold accountable the food businesses propounding claims pertaining to the heath and nutritional benefits of their products. The Regulations define criteria for different types of claims viz. nutritional claims, health claims, conditional claims, health claims, and equivalence claims etc.
For all such claims, the Regulations provide a detailed criteria for products to adhere to in order for them to advertise any claim. The FSSAI, recently
For example:
- A product can claim to be low in sugar only if it contains less than or equal to 5 grams of sugar per 100 grams of the product.
- As in the case of Cadbury Bournvita, a product claiming any health benefits for consumers has to categorically represent and inform the consumers about the nutrient and/or substance in the product through which such health claim emanates from.
- If the product claims that a nutrient contained in it provides for a certain health benefit, such claim needs to be backed up by current relevant scientific substantiation and to provide sufficient evidence on the type of claimed effect and the relationship to health as recognised by generally accepted scientific review of the data.
It is noteworthy that any food business or a third party advertising in contravention to these Regulations can be penalized with a fine of INR 10 Lakh under the Food Safety and Standards Act, 2006.
- CCPA
The CCPA has notified Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022[5] (Guidelines) with an objective to curb misleading advertisements and protect the consumers, who may be exploited or affected by such advertisements. The Guidelines seek to ensure that consumers are not being fooled with unsubstantiated claims, exaggerated promises, misinformation and false claims. Such advertisements violates various rights of consumers such as right to be informed, right to choose and right to be safeguarded against potentially unsafe products and services.
Importantly, the Guidelines addresses the issue of children centric advertisements and prohibits any such advertisements that claim, among others, any health or nutritional claims or benefits without being adequately and scientifically substantiated by a recognized body, condone or encourage practices that are detrimental to children’s physical health or mental wellbeing, and exaggerate the features of goods, product or service in such manner as to lead children to have unrealistic expectations of such goods, product or service.
For example:
- A product claiming that a child’s height will grow after consumption of the said product shall be in contravention of these Guidelines if not backed by relevant scientific studies.
- A product promoting overindulgence and consumption so as to have a detrimental effect on the child’s physical well-being shall be in contravention of these Guidelines.
It is noteworthy that any manufacturer or endorser can be penalized with a fine of INR 10 Lakh under the Consumer Protection Act, 2019 for promotion of false and misleading advertisements.
Conclusion
The legitimacy of the controversy surrounding the claims made by Cadbury Bournvita will be adjudicated by the NCPCR and other relevant authorities, but what is crucial is that this development is a shot in the arm for the consumers and the government alike to ensure that the advertisers and food businesses are held to account for the nutritional and health claims made by them. There is a dire need to keep a close tab on claims and advertisements being made by the food business operators on their products. The issuance of notice by NCPCR to Mondelez and, most recently, filling of 32 cases[6] by the FSSAI for misleading advertisements against several food business operators are small steps towards ensuring that consumers are provided with credible and legitimate information in advertisements without being lured with unsubstantiated claims.
Shantam Sharma, Intern at S.S. Rana & Co. has assisted in the research of this Article.
[1] Available at https://news.abplive.com/trending/influencer-gets-legal-notice-on-viral-sugar-content-in-bournvita-video-apologises-to-cadbury-1595677
[2] Ibid.
[3] Available at https://wcd.nic.in/sites/default/files/TheGazetteofIndia.pdf
[4] Available at https://www.fssai.gov.in/upload/uploadfiles/files/Compendium_Advertising_Claims_Regulations_14_12_2022.pdf
[5] Available at https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/CCPA%20Notification.pdf
[6] Available at https://www.thehindubusinessline.com/economy/fssai-says-32-fresh-cases-flagged-for-misleading-claims-by-food-companies/article66789939.ece
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