Utterly litigious? Tulzapurkar, Khaitan & Co win for Kwality Wall’s in Amul ice-cream ad plaint

Utterly litigious? Tulzapurkar, Khaitan & Co win for Kwality Wall’s in Amul ice-cream ad plaint

Aditya AK

The Bombay High Court yesterday held that an Amul advertisement depicting the difference between ice-cream and frozen desserts amounted to slander of goods.

Earlier this year, Kwality Wall’s had filed a plaint in the High Court claiming that an advertisement put out by Amul sought to mislead consumers by stating that all frozen desserts contain Vanaspati, an ingredient proven to be unhealthy. The judgment was reserved on April 28 this year.

Senior Advocate Virag Tulzapurkar argued for Kwality Wall’s. He was briefed by Dr. Birender Saraf and a team from Khaitan & Co. comprising Associate Partner Nishad Nadkarni, Vivek Ayyagari and Nupur Pandit.

On the other side, Senior Advocate Ravi Kadam appeared for Amul. He was assisted by Ashish Kamat and Pranit Nanvati, along with Khaitan Legal Associates Partner Vishal Maheshwari and Associates Surabhi Singh and Bankim Gangar.

In the advertisement, a girl is rewarded with ice-cream after a trip to the dentist. The voiceover suggests that she be given ‘real ice-cream’ which contains milk fat, as opposed to frozen desserts which contain Vanaspati.

Kwality Wall’s in its plaint averred that its frozen desserts do not contain Vanaspati, and are made using vegetable fat.

While deciding the issue, Justice SJ Kathawalla delved into the difference between ice-cream and frozen desserts as per Regulation 2.1.7 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. As per the Regulations, the distinguishing factor between the two is that ice creams must contain over 10% milk fat, whereas frozen desserts must contain over 10% total fat (i.e. milk fat and/or edible vegetable oil).

The law also distinguishes between edible vegetable oil, which the plaintiffs use in their products and hydrogenated vegetable oil, commonly referred to as Vanaspati. On viewing the ad, the Court held,

“The Defendants have therefore made a false representation to the consumers and also indulged in a negative campaign that no frozen dessert is pure, and only Amul ice cream is pure, as all frozen desserts contain Vanaspati, and are therefore inferior.”

The Court also said that the disclaimer at the bottom of the ad clarifying that “Vanaspati” refers to “vegetable oil” was misleading. Moreover, the defendants had released another ad this time replacing “Vanaspati” with “Vanaspati Tel” in the voiceover. This, the Court made no difference whatsoever.

Referring to case law on the subject, Kathawalla J held,

“…it is settled law that the manufacturer of a product whilst advertising his product/s cannot say directly or indirectly that the product of the competitor is bad and/or harmful. If a manufacturer indulges in such negative campaigning, the same would amount to slandering of a rival product, which is not permissible in law.”

The defendants claim that their advertisements were part of a campaign to educate the consumers about the difference between ice-cream and frozen desserts, and were not aimed to denigrate the plaintiff’s products. In response to this submission, Kathawalla J held,

“Any campaign to educate the members of the public by placing before them the true and correct facts/ingredients used in a product should always be welcomed. However, no manufacturer can place misleading information before the consumers qua the product of his rivals and thereby disparage/discredit/belittle such product including influencing the consumer not to buy the same in the garb of educating and/or bringing the correct facts before the members of the public…”

Therefore, the Court restrained Amul from broadcasting the two commercials in question and disparaging the products of the plaintiffs in any manner.

Read the judgment:

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