How often than not do we hear advertisements displayed through our screens or played on radio convincing us to believe "If you have this health drink, you will grow two times taller" or "If you have these biscuits, you will get your daily requirement of calcium" or something like "If you have this drink, you will conquer your fears" etc. when all these food products have nothing but high sugar content, degraded oil and high salt content in their ingredients and even if they put what they claim to be their MSP, more or less it only constitutes a minor percentage of their products.

According to the "Junk Push Report on Evidence of Pervasive Marketing", study shows that about 39% of food advertisements are targeted at general audiences like us while 61% targets children. In India itself, 93% kids consume packaged foods, 68% consume sweetened beverages at least once a week and 53% consume them on everyday basis[1] which is quite alarming given the increased cases of high cholesterol levels, diabetes, heart health problems and other health conditions in minor children.

Data Estimates:
The deleterious diet of foods which is loaded with trans-fat causes cases of obesity which ultimately becomes the cause of increased risk of cancer by 40% and diabetes by 50% and at the same time also gives rise to cardiovascular complications[2]. The market's main target- audience remains children as well as adolescents and huge digital spending trends needs to take exponential steps in order to investigate the potential issues of privacy, advertising literacy, parent mediation and regulation required to address new forms and methods of digital advertising[3].

These figures may at present seem to be a little tone down but we fail to address the amount of irretrievable and irrecoverable damage it will lead to in the near future, if the trends continue so to speak. When children in their developing and growing age are exposed to processed food products by such misleading advertisements without informed consent, what will become of their health can prove to be a nightmare.

A research paper compiling of 138 academic articles published in Social Sciences Citation Index Journals which relates to advertising targeting young children up-to the age of twelve years between the span of 2006-2016 was brought under study. There it was found that advertisements especially targeting food products is more correlative with unhealthy intake of food and products[4]. This symbolisation establishes the proof of unleashed control over advertisements running around children which if not dealt with diligently will certainly be the cause of large number of population's bad health reports.

Breach Of Fundamental Right To Health:

In the case of Gurusimran Singh Narula v. Union of India[5] it was observed that the Indian Constitution within the ambit of Article 21 provides for the Right to protection of life and personal liberty. Article 21 encompasses a large pocket of rights in itself which is also recognised by both the legislature and the courts of the country and therefore, this right to life further also entails the right to health as its significant facet. However, this right to heath placed at the pedestal of being a fundamental right is seriously violated of the consumers who are exposed to the harmful and health deteriorating foods due to misleading and false advertising tactics.

Without health, the faculties of living a decent life have little to no meaning hence, it should be considered justified to approach the recourse to the coercive and much stricter arm of law in order to safeguard it[6] and the same shall be applied in the case of false advertisements. One may think what major impact does these thirty seconds advertisements may cause, they simply come and go, sadly it is not the case.

These so-called non-harming advertisements have the potential of influencing our entire routine, right from what food we should take to what look should we prefer and even to what kind of water should we intake. Even this would have been fine provided that they come with details of ingredients and percentages of their constitutions supported with warnings of their impact on our health, if not then then they are just misleading and misconstruing in the name of being productive.

In Navtez Singh Johar & Ors. v. Union of India, through Secretary, Ministry of Law and Justice[7] the Hon'ble Supreme Court observed that Right to health does not only comprise within itself the right not to be unwell but also the right to be well. It advocates not just the omission of disease and infirmity but the wholesomeness of physical, mental and social wellbeing and includes both the right to have control over one's health and body as well as to be devoid of any kind of interferences and to entitlements that give balanced opportunity to enjoy the highest attainable level of health.

Provisions Under Consumer Protection Act, 2019:

According to clause (18) Section 2 of the act, the term "endorsement" in relation to an advertisement means- any message, verbal statement, demonstration or a depiction of the same, signature, likeness or other identifiable personal characteristics of an individual or depiction of the name or seal of any institution or organisation, which means the consumer to believe that it reflects the opinion, finding or experience of the person making such endorsement.

This is by far the only statute that deals with the consequences of producing and displaying a misleading advertisement, however, even this Consumer Protection Act fails in describing and in defining as to what does "misleading advertisement" actually mean.

It simply describes punishment for the same under Section 89 which states that in case any false or misleading advertisement is caused by any manufacturer or service provider of a product which is prejudicial to the interests of the consumer, shall be punished with imprisonment extending up-to two years and with fine extending up-to ten lakh rupees and if repeated again then with extended term up-to five years and with extended fine of fifty lakh rupees.

Though the penal provisions seem fine to an extend but if seen from the perspective of the big manufacturing companies and retailers it hardly gets any impact imprinted on them for causing deterrence, as these fines may constitute only a minute portion of their capital which is comparatively easy for them to compensate though it may lead to a dig to their goodwill.

In Tata Press Limited v. Mahanagar Telephone Nigam Limited[8] the court observed that public is largely affected and assisted by the particulars made available to them by means of advertisements as in a democratic country like ours, for the economy to thrive in a free flow manner, the dissemination of commercial information is rather indispensable. There cannot be a forthright and economical marketing by public at large without being tutored the information so made available.

So, for a conscious planning and apprehension by the consumers, what they need is an informed and genuine disclosure of facts by the displaying of advertisements and not anything that hides the truth or attempts to misrepresent the actual details.

Guidelines of Supreme Court:

In Swami Achyutanand Tirth v. Union of India[9], the Hon'ble Supreme Court gave the following directions to ensure quality foods are advertised:

• The legislature shall take appropriate steps to implement the Food Safety and Standards Act, 2006 in a more effective manner.
• State food safety authorities shall ensure that there is adequate lab testing infrastructure and ensure that all labs obtain NABL accreditation to facilitate precise testing.
• State governments shall ensure that district food testing laboratories are well equipped with primary technical persons and testing facilities.
• The legislature shall evolve a complaint mechanism for checking corruption and other unethical practices of food authorities and their officers.

Conclusion:
Although loose stream of advertisements is essential for the purpose of keeping up with being aware and informed but it also for the same reasons that these advertisements need to be restricted and curtailed as soon as they turn to mislead and misdirect, by being motivated of their own personal gains and benefits. They if permitted to circulate without any command would seriously exploit the right to information, right to choice and right to safety of consumers which will ultimately derail the entire spectrum of fairness and justice.

End Notes:

1. THE JUNK PUSH, https://napiindia.in, last visited July, 2024
2. Dr. Sheetal Kapoor and Sukriti Kapoor, Misleading Advertisements and its Impact on Children, 4th ICMTS, 1. (2020), https://forms.iimk.ac.in/research/markconf20/Proceedings/
3. Nelson R. Michelle (2018), Research on Children and Advertising Then and Now: Challenges and Opportunities for Future Research, Journal of Advertising 47: 301-308
4. Janes De Steffi, Dieneke Van de Sompet, Liselot Hudders and Veroline Cauberghe (2019), Advertising Targeting Young Children: An Overview of 10 Years of Research (2006-2016), International Journal of Advertising, 38:2, 173-206
5. (2021) 1 SCC 154
6. Baiju KG v. V. P Joy, (2022) SCC OnLine SC 624
7. (2018) 10 SCC 1
8. (1995) 5 SCC 699
9. (2016) 9 SCC 699

Written By: Adya Pandey