In view of large number of consumer complaints, the Government is considering setting up an inter-ministerial committee to look at ways and means to check false and misleading advertisements effectively. This was stated by PROF. K.V. THOMAS while delivering key note address at conference on ‘Strengthening Self Regulation of Advertising Content’ organized by the Advertising Standards Council of India.
Expressing concern over misleading advertisements targeting vulnerable sections of society – children, women and senior citizens, the minister said there is urgent need to prevent such advertisement before they appear and harm the innocent consumers by strengthening existing laws and self regulatory mechanism.
Full text of Minister’s speech is as follows:
“I commend the organizers of this seminar for choosing today’s topic. It could not have come at a more opportune time, because we, as the nodal ministry for protecting consumer interest, are seriously looking at consumer complaints about false and misleading advertisements and debating on how best to tackle this issue. Is self-regulation adequate to deal with the problem or do we need to bring in a new law? Will the existing laws work if they are brought in tune with the times or do we need a new regulation? These are all issues before us and we need answers quickly because there is a clamour from consumers and consumer groups for a comprehensive and effective mechanism to put a stop to advertisements that violate their basic rights to choose, information and safety. The absence of the Monopolies and Restrictive Trade Practices Commission, which looked at false and misleading advertisements, under its provision to deal with unfair trade practices, is also being felt.
Of course, the Consumer Protection Act provides for protection of consumers from unfair trade practices and the consumer courts have delivered some excellent judgments vis-à-vis misleading advertisements, but they do not have the power to examine advertisements suo motu, to facilitate quick action through interim injunctions; nor do they have an investigative machinery like the Office of the Director General (Investigation and Registration), as existed under the MRTP Act.
In other words, these Courts can award compensation to consumers affected by false and misleading advertisements, but they have no machinery to nip them in the bud. They also have the power to issue directions for corrective advertisements, but such directions can be effective only if they are issued soon after an advertisement is released, so that they quickly correct the impression created by the misleading advertisement.
Take the case of ‘Tesol India Vs Shri Govind Singh Patwal’ (RP NO 2501 of 2010) Here the advertisement not only promised to get those who underwent the course, lucrative jobs abroad, but even guaranteed it , thereby attracting a number of students to its course on a false promise, eventually resulting in some of the students filing a case before the consumer court. In fact this case underscores how advertisements can deceive and cause young consumers immense harm – mentally and financially.
It is no wonder that in the case of Buddhist Mission Dental College and Hospital Vs Bhupesh Khurana (CA NO 1135 of 2001) the Supreme Court felt it necessary to enhance the compensation given by the National Consumer Disputes Redressal Commission to the students, by Rs 2 lakhs each. Here, the college had falsely claimed in its advertisements that it was affiliated to Magadh University and recognized by the Dental Council of India. A large number of students must have suffered as a consequence of such an unethical and false advertisement, but eleven students decided to seek legal resource. And their battle lasted 15 years.
If only the advertisers had followed ASCI’s code for self-regulation, the students would not have wasted precious money and academic time in courses that gave them nothing but mental agony and distress. In this regard, the advertising code for educational institutions brought out by ASCI is really good, provided of course the educational institutions or those who issue those advertisements, think it fit to abide by them.
That brings us to the all-important question: will self regulation work? Is it working? Will strengthening the self regulation of advertising content take care of the present problems that consumers face vis-à-vis deceitful advertising? Are we doing enough to protect consumer interest? What about advertisers that deliberately deceive to sell? Should they be allowed to get away or Should they not be penalized for their actions? I feel particularly worried about health and nutrition -related advertisements that blatantly mislead consumers and particularly target the highly vulnerable groups- children, senior citizens and those suffering from health problems.
I am aware of the kind of effort that ASCI is putting into self-regulation to make it work. The decisions of your Consumer Complaints Council (CCC) showcase your commitment to the Code. But at the same time, they also expose the kind of advertisements that appear despite your best efforts- unsubstantiated claims about nutritional supplements, advertisements that push children to perform dangerous acts or eat unhealthy food, advertisements that deliberately lie about the quality or performance of goods and services, surrogate liquor campaigns, advertisements that promote fair skin colour as a step towards better employment opportunities and better social interactions, besides cure to obesity, to name just a few.
Remember the Neeraj Clinic in Rishikesh, which fooled hundreds and perhaps thousands of consumers into believing that they offered a sure cure for epilepsy? Even though ASCI had declared those advertisements to be misleading, the clinic went ahead and continued to fool people.
I have also had a chance to go through the recent Report of ASCI. What strikes you most is that most of the misleading advertisements are issued not by some small fly-by-night companies, but big corporations, who could even be, members of ASCI. I am specifically referring to cases such as that of Piramal Healthcare on ‘Getting complete energy in 8 days or Money back’/or the AIRTEL Digital TV advertisement on ‘Free Regional Pack for life’ or the one on NUZEN Gold hair oil. As the report says these are all cases which could not substantiate their claims when questioned by the CCC of ASCI.
What we need is a mechanism to effectively prevent such advertisements before they appear; before they convey the message and do the harm. And that’s what self-regulation is all about- not doing something that you have undertaken not to do. Follow the code of self regulation stringently and truthfully, so that such advertisements do not appear at all.
As I understand, it will take anywhere between four to six weeks for the Consumer Complaints Council to take a view on a complaint and for ASCI to convey its decision. And then the advertisers are given a fortnight to either modify the ad or withdraw it as suggested by the CCC. But by then the advertisement would have already conveyed the message . In such cases, the only way the message can be obliterated or corrected in the mind of the consumer is through corrective advertisements , to be put up for equal duration and for equal number of days.
Given the wide canvass on which advertisements appear- the television, the internet, the mobile (through SMS), pamphlets, hoardings, print media- I would also imagine that it would require an elaborate machinery to monitor the advertisements.
Unfortunately, laws like the Drugs and Magic Remedies (Objectionable Advertisements) Act and the Cable Television Networks Regulation Act have not had the desired effect – of preventing such advertisements- partly because of the lacunae and partly because of their poor enforcement. We now need to take a close look at them to see how best to achieve the purpose for which these laws and regulations were made in the first place. Since several ministries including Health and I&B , are involved in the implementation of some of these laws, we are now considering an inter-ministerial committee to look at ways and means of making these laws and regulations effective. There is also a demand for an independent regulator who would authenticate or certify all health-related advertisements, before they are released, on the basis of substantiation provided by the advertiser. This way, advertisements that cannot provide proof for the claims being made, will not appear at all.
I understand ASCI’s concerns about new regulations and I am sure ASCI understands our concerns about advertisements that harm consumer interest. Together, we need to work towards the best possible solution that would ensure that consumer interests are protected.”
