'Bold' claims taking the country for a ride? What the law says on misleading advertisements

In an era of heightened social media activity, the market is witnessing a surge in promotion of products although without scientific backing.
'Bold' claims taking the country for a ride? What the law says on misleading advertisements

The Supreme Court has imposed a temporary ban on Patanjali Ayurved ads for making misleading claims about the efficacy of its medicines.

The Court observed that Patanjali has been taking the country for a ride by making misleading claims that its medicines would cure certain diseases, despite no empirical evidence pointing to the same.

In this backdrop, it is relevant to delve into the laws and regulations that pertain to such misleading advertisements, and explore whether they need an overhaul.

Medical experts have often expressed how the legislation in place to curb the advertisement of false remedies - the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 - was being circumvented by clever disclaimers.

Some time ago, they frowned upon an advertisement promoting a sexual wellness product featuring Ranveer Singh and adult entertainment actor Steven Wolfe, popularly known as Johnny Sins, calling it “quackery”.

Vascular surgeon and writer Dr Ambarish Satwik wrote on X,  

It’s a great ad, but makes a false claim. There’s no evidence that any ingredient in the product is superior to placebo in the treatment of erectile dysfunction (aka his Pappu can’t dance sala) in humans. To get around the Drugs and Magic Remedies Act, they have a line on the label that disclaims any responsibility.”

On the other hand, Dr Cyriac Abby Philips, popularly known on social media as "TheLiverDoc”, was quick to debunk the efficacy of the ingredients of the product.

Overall, a very low quality product made to appear like it is effective and a catchy ad.” 

The Patanjali and Ranveer Singh-Johnny Sins ads are not stray instances. In an era of heightened social media activity, the market is witnessing a surge in promotion of products although without scientific backing.

According to Allied Market Research, the Indian sexual wellness market size was valued at $1,153.5 million in 2020, and is estimated to reach $2,095.4 million by 2030, registering a compound annual growth rate of 5.8% from 2021 to 2030.

Amidst this predicted growth, brands will continue to cleverly manoeuvre their way around the law to escape any responsibility for their claims of curing or alleviating diseases and disorders. 

What does the law say?

As of today, the 1954 Act carries a provision prohibiting ads that claim that certain drugs can treat particular diseases and disorders under Section 3.

Sub-section (b) clearly bars ads about drugs promising “maintenance or improvement of the capacity of human beings for sexual pleasure”.

Section 3(d), which prohibits advertisments that claim "diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition" as specified in the Schedule to the Act, squarely applies to Patanjali's case.

There have been calls from many quarters to introduce changes to the 1954 Act.

Presently, it provides for a maximum of 6 months' imprisonment in addition to a fine for a first time offender, and a repeat offender may face upto one year of jail time and/or fine.

In 2010, a private member’s bill had proposed enhancing the existing punishment for violation of the law keeping in mind that “illiterate masses of this country are taken for a ride by quacks and touts who claim magical remedies for various diseases”. 

Considering the damage, that, those who claim magical remedies, cause to the social fabric, the penalty clause has to be made more stringent and harsher to act as a deterrent,” the Bill said.

Congress MP Shantaram Laxman Naik's Bill
Congress MP Shantaram Laxman Naik's Bill

Congress MP Shantaram Laxman Naik therefore suggested a jail term of upto a year with fine for a first time offender and a maximum imprisonment of upto 5 years with fine for repeat offenders.

Ten years later, the Union Ministry of Health and Family Welfare invited suggestions on a draft bill which again sought to enhance punishments. It proposed a maximum jail term of two years and ₹10 lakh fine if the offence is committed for the first time and upto five years jail and ₹50 lakh fine on a subsequent conviction. 

The bill also lists out disorders or medical conditions that advertisements cannot claim to treat.

According to a recent media report, the Ministry will soon bring in these changes.

Proposed changes to objectionable ads law
Proposed changes to objectionable ads law

Proposed changes to broadcast law

In India, the Cable Television Networks (Regulation) Act of 1995 serves as the primary legislation overseeing content on linear broadcasting, including cable networks. But given the significant changes in the broadcasting landscape and the advent of Direct-to-Home (DTH), Over-the-top (OTT) platforms and various integrated models, a need to streamline the regulatory framework was felt.

In November 2023, the Union Ministry of Information and Broadcasting invited suggestions on the proposed Broadcasting Services (Regulation) Bill, 2023. The proposed law also has provisions exercising control over advertisements under Section 19, which states,

It states that any program or advertisement broadcasted through television, radio, or other broadcasting services must follow certain codes called the Programme Code and the Advertisement Code. These codes may vary depending on the type of broadcasting service.”

The bill says non-compliance with the programme or advertisement codes can result in removal of objectionable programs, orders, apologies, off-air periods, or cancellation of registration.

In order to ensure compliance, the bill proposes self-regulation through broadcasters, organisations and the Broadcast Advisory Council constituted by the Central government.  

Maintaining standards of ads

The Advertising Standards Council of India (ASCI) is a voluntary self-regulation council, registered as a not-for-profit company. Its self-regulatory mechanism for advertising content was recognised by the Supreme Court in Common Cause v. Union of India (2017).

The ASCI is not a government body, and it does not formulate rules for the public or relevant industries. However, it has a Code, the purpose of which is to control the content of advertisements, not to hamper the sale of products which may be found offensive.

This self-regulation Code has been drawn up by people in professions and industries in or connected with advertising, in consultation with representatives of people affected by advertising. It has been accepted by individuals, corporate bodies and associations engaged in, or otherwise concerned with, the practice of advertising.

The ASCI Code advocates truthful and honest representation and says that advertisements shall neither distort facts nor mislead the consumer by means of implications or omissions. 

Advertisements shall not contain statements or visual presentation, which directly, or by implication or by omission or by ambiguity or by exaggeration, are likely to mislead the consumer about the product advertised or the advertiser, or about any other product or advertiser.”

The Code warns against making claims that would leave consumers disappointed, much like the bahu depicted in the Boldcare ad.

"Advertisements shall not be so framed as to abuse the trust of consumers, or exploit their lack of experience or knowledge. No advertisement shall be permitted to contain any claim so exaggerated as to lead to grave or widespread disappointment in the minds of consumers."

But as the Supreme Court pointed out in the Patanjali case, the issue lies in implementation of the law rather than the law itself. While pulling up the Central government for not tackling misleading advertisements despite the plea against Patanjali ads being filed in 2022, it said,

"The entire country has been taken for a ride! For two years you wait when Drugs Act says this is prohibited?"

At a time when the alternative medicine market seems to be brimming with options, it will be interesting to see if enhancing punishments or bringing in more stringent regulation forces brands to take different route.

Bar and Bench - Indian Legal news