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ADVERTISING – A TOOL FOR MARKETING, OR MISLEADING

“Advertising is the art of convincing people to spend money they don’t have for something they don’t need” – Will Rogers

ABSTRACT:

Advertising in this present Era of the digitalized world has played a very crucial role in growing the outreach of a product to a larger target audience for many organizations. Advertisements and consumer culture have turned out to be a part and parcel of our daily lives. It helps constrict a strong brand name of the corporation by creating awareness and supplying information that will assist the consumer to make well enlightened buying conclusions. However, advertising has been accused of an array of sins ranging from an increase in financial expenses to purveying of harmful products, from sexism to deceit and manipulation, from triviality to intellectual and unethical adulterer.

An ethical issue in the contemporary enterprise environment is false advertising, which can delude consumers and mutilate competition. The hassle of misleading advertising is getting worse day by day. Advertising today is giving upward rise to negative attributes like creating class consciousness, materialism, conspicuous consumption, and other values which are not universally trusted. Though unlawful in its most overt forms, deceptive advertising can take place in subtle approaches that are hard to establish as outright deception. For building effective opposition against misleading ads not only strict controls on the media are required; but also, there is a need to educate and boost more evaluative judgment thinking capacity amongst media consumers. 

INTRODUCTION:

False advertising can be defined as, “A criminal or improper act of publishing, transmitting, or otherwise publicly disseminating an advertisement containing a false, misleading, or deceptive statement, made intentionally or recklessly to promote the sale of goods, services or any moveable or immovable property to the public”[1].

In other words, it is the “Promotion of any product or service through electronic media like Television, Radio, etc., Or print media like the Newspapers, Banners, Posters, Handbills, wall-writing, etc., to misrepresent the nature, characteristics, qualities or geographic origin of goods, services or commercial activities so as to mislead the consumer comes within the ambit of misleading/false advertisement”[2]

Section 2(28) of the Consumer Protection Act, 2019 defines Misleading advertisement in relation to any product or service as such wherein the advertisement includes the following-

  • A false description of such product or service; or
  • Provides for a false guarantee which is likely to mislead the consumers as to the nature, substance, quantity, or quality of such product or service; or
  • Which conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or
  • Intentionally conceals any important information in relation to the product or service;[3]

PREVALENT FORMS OF MISLEADING ADVERTISEMENTS

  • Photo Editing: Sometimes in order to make a product look more attractive than it is, organizations use this technique and issue false images to the public.
  • Portraying honest quality and origin:When someone makes such a statement as to the origin or manufacturing place of the goods which cannot be fully claimed it comes under the preview of deceptive advertising.
  • Bait-and-Switch Tactic:The process under which a company advertises about its certain products or services which they never intended to sell in the market instead fools the customer by denial of its availability and sell their other higher-rated products instead.
  • Fillers and Oversized Packaging: Fillers are those packaging techniques where the consumer is sold more a quantity of product but of reduced quality from the earlier product sold. On the other hand, oversized packaging makes the implicit false claim that there is more product within the packaging than there would appear to be by the addition of gases or any extra material.
  • Hidden Fees and Surcharges:Also known as cramming, the scheme can cause consumers to pay an extra amount rather than the one evident on the face of the advertisement.
  • Misleading Health Claims:Wherein the manufacturer substantiates that his products are beneficial in terms of nutritional values whereas there being no such backing to it.
  • Comparative Advertising: Comparing only those points wherein one is better than the other and presenting it to the larger audience as the best one available [4].

PUFFERY:

Puffery is referred to as the reasonable exaggerations expected from a seller as to the degree of quality of his product, the truth or falsity of which cannot be accurately determined. Manipulation of Terms, Incomplete Comparison, Inconsistent Comparison, Misleading Illustrations, False Colouring, guarantee without a Remedy Specified, Chemical Free, Angel Dusting, No-Risk are some of the commonly observed situations [5].

PUFFERY v. FALSE ADVERTISING – CLASSIFIED:

When comparing the two, you’ll find that the difference lies between legal promotion and illicit marketing claims. Puffery is a legitimate way of promoting a good or service through oversized statements that cannot be objectively verified. On the other hand, when factually false statements are used to promote a product, it is called false advertising. A notable difference when comparing puffery to false advertising is that puffery is subjective while false advertising consists of objective statements which can be easily verified [6].

EXISTING LAWS REGULATING MISLEADING ADVERTISEMENTS IN INDIA:

1] Under Section 30 of the Cable Television Networks (Regulation) Act, 1995, The government can supervise or prohibit the transmission or retransmission of any program that it considers is not in compliance with the Programme and Advertising Code, which administers television content in India.

2] Section 5 of the Cigarettes and Other Tobacco Products Act, 2003 reads as “Advertisements of tobacco products, including cigarettes, are prohibited. There is no one to participate in the advertising of tobacco products or use publications for advertising cigarette products. Sell such video advertising movies, you must distribute leaflets, documents, or provide space for promoting cigarette advertising. However, limited advertising is allowed to enter the tobacco product package, tobacco products sold. It also prohibits Surrogate advertisement under the Act.

3] Advertising is no different from a commercial transaction, which is the dissemination of information about the advertised product. The economic system in a democracy would be crippled without the freedom of “commercial speech” and, from another angle, the general public’s right to “commercial oration”. The Indian Constitution under its Article-19(1)(a) not only guarantees freedom of speech and expression, but also protects an individual’s right to hear, read, and receive such speech. Regarding the economic needs of the population, their satisfaction must be guided by information disseminated through advertising. An advertisement that provides information about a life-saving drug can be much more important to the public than to an advertiser who might treat it as a purely commercial drug. 

4] The Union government notified that no one shall advertise or engage in any sort of advertisements for certain classes of drugs as mentioned in schedule H, H1, and X of Drugs and Cosmetics Act, 1940 unless having previously been sanctioned by the authorities. It also prohibits the promotion of any Ayurvedic, Sidha, or Unani medicine until and unless a unique identification number is granted by the licensing officer.

5] It is forbidden to publish certain drugs for the treatment of particular diseases and disorders under the Section 3 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, Subjective to non-violation to the provisions of this law, no one may engage in advertisements which imply that the drug is used for the following purposes: 

(A) Women to have a spontaneous abortion or preventing them from conceiving; or 
(B) Maintain or enhance human sexual pleasure; or
(C) Correcting a woman’s menstrual disturbances; or 
(D)Diagnose, cure, relieve, treat or prevent any disease, illness, or condition specified in the schedule, or any other disease or condition which may be indicated in the rules by any name established by the law in force.

6] The Emblems and Names (Prevention of Improper Use) Act, 1950 limits the use; of an emblem, name, or any colourable imitation as specified in the schedule for the purpose of carrying on a trade, business, calling a profession or otherwise in a title of any patent, Trademark, design; without prior permission of the central government.

7] Section 19F, (b), (c) of the Transplantation of Human Organs Act, 1994 provides regulations for the removal, storage, and transplantation of human organs for therapeutic purposes and to prevent commercial transactions of human organs. This law prohibits any advertising that invites people to offer, offer to supply, any human agency for review.

8] Section 29(8) of the Trademark Act states that a registered trademark is infringed by any act of promoting that mark if such promotion results in exploitation of the mark in an unfair manner and is contrary to honest commercial or industrial practice; weaken its individuality, or is harmful to the companies’ brand value. 

Apart from the above-mentioned legislations The Food Safety and Standards Act, 2006; Indecent Representation of Women (Prohibition) Act, 1986; Indian Penal Code, 1860; Infant Milk Substitute, Feeding Bottles and Infant Foods (Regulation of Production, Supply, and Distribution) Act, 1992; Press Council of India Act, 1978; Bar Council of India Rules; Medical Council of India Rules; Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994; Young Persons (Harmful Publications) Act, 1956, etc., in some or the other way control the publication of misleading advertisements in their respective jurisdiction.

CONCLUSION:

False advertising is illegal in its most forms. However, advertisers are still looking for ways to misapprehend consumers in ways that are legal or technically illegal. By using unethical practices, for marketers, it’s more important to them to reach the end than the means. Misleading ads are wise to defend the fact that they make big claims that affect a customer’s buying behavior. Due to the huge population of consumers, the competent authority enforces stronger legislation to warn everyone involved in proven and misleading advertising. There being no agency in India to regulate the advertising industry, everything is managed by a group called the Advertising Standards Council of India (ASCI). Founded in 1985, their main goal is to ensure the authenticity and fairness of advertising. It also makes sure that advertisements published respect the widely accepted principles of public elegance. The ASCI prevents the indiscriminate use of advertisements that promote products that are harmful to society. The ASCI has codes that apply to advertisements that are read, heard, and viewed throughout India.

REFERENCES

[1] “False advertising,” Merriam-Webster.com Legal Dictionary, Merriam-Webster, https://www.merriam-webster.com/legal/false%20advertising, Accessed 16 May 2021

[2] Department of consumer affairs, Misleading advertisements, Google Chrome (April 14, 2021, 04:00 PM), https://consumeraffairs.nic.in/more/misleading-advertisements

[3] Consumer Protection Act, 2019, Section-2(28), No. 35, Act of Parliament, (2019)

[4] Irston R. Barnes, The Law Of Trade Practices-II False Advertising, Volume-23, Ohio State Law Journal, 597 (1962), https://drive.google.com/file/d/1WwaFzicpO0DjcSUfN433ZhH5boZJSbsq/view?usp=drivesdk

[5] William Breitsprecher, The language of advertising: Puffery, Slide share, (May 16, 2021, 6:30 PM), https://www.slideshare.net/bogeybear/the-language-of-advertising-puffery

[6] Malerie Ma Roddy, Not Another Puff Piece: The Difference Between Puffery and False Advertising, Volume-XI, The National Law Review, 136, https://www.natlawreview.com/article/not-another-puff-piece-difference-between-puffery-and-false-advertising

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