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Misleading Advertisements: The Quandary Of Pleasure, In Camouflage Of A Hoodwink

In the cutting-edge time, the desire of succeeding a business is expanding day by day. To make progress the most significant factor here is being noticed. Showing an item in an engaging manner is right however, shaping its highlights and realities to make it all the more enthralling is going out of line for the consumers. Showing misleading facts and features of a product gives false hope to the buyer, it's not only morally wrong but also contains legal obligations.

We all must have experienced this in our daily routine. It is a general problem which influences our mind in a way that ends with very huge complications. For instance, products confidently contend to give health benefits and have serious health issues to yourself. Any financial injury can be compensated but when it comes to health, you can't compensate for that.
Misleading advertisements can be very treacherous in terms of career aspects too. Educational institutions like coaching, colleges claim vague promises like hundred percent results hundred percent placements for more admissions.

Online products also display very ambiguous photos and features. A customer buys an online product by following ratings. Genuine ratings are like flying pigs in today's time. Ratings and reviews are being purchased by the seller or simply ask their known to put good reviews and ratings. All these things dominate a customerís mind and force him to purchase a product. The laws governing advertisement are functional but have loopholes which gives opportunity to play with guidelines.

Common man regularly encounters such issues and is not aware how the surroundings manipulate his mind. In this paper we will deal with the issues which are misleading a customer, how to be aware of misleading advertisements and what are legal obligations of the same.

Introduction
Advertisement is like the face of a company. The whole business industry is now based on advertisements. It is a tool which conveys information to the potential customers in a very effective way. There is a saying by Jay Bear that Make your marketing so useful, people would pay for it.

To promote a brand, product or service creative advertisements are exhibited to the audience to grab attention. It is extremely exhausting to read the features of any item however, a commercial display makes it easier. In 30sec, an effective advertisement not only showcast of its feature but also influences the mind to purchase it. To boost its trading, it is very common to show fake or misleading features of a product, or hide material information. The malpractice is regarded as displaying Misleading Advertisement.

Misleading or fake advertisements have legal obligations. Indian government has adopted several measures to control unauthentic business activities. There is a code of rules and regulations by the Legislation to control the norms of advertisement, unfortunately due to lack of knowledge, society is least bothered about the topic, due to the less attention over the topic deceptive ads are still on. It can have serious economic consequences.

It is prohibited through various laws in India. Several big and reputed companies have paid millions for presenting misleading advertisements. It is unethical practice in consumerism, fantasizing a customer regarding high results hurts their sentiments and also gives false hopes.

Misleading advertisements are found in every field, healthcare companies claiming false results like reducing weight and increasing height etc. Many of the products have adverse effects, any financial loss can be compensated but once a personís health is affected it cannot be cured fully.

Meaning Of Misleading Advertisement

Misleading or false advertisement are those commercial displays which affirms cloudy, false or illusory information, which affects average customerís thinking and influences him to act in other ways towards the product/service/brand. An advertisement will be misleading if- It misleads an average consumerís mind in any way, claims false information, omits any material fact which is a must to display. It includes misrepresentation, unacceptable business practices, misleading content, missing information, unclear relevance, or unavailable offers.

There can be three elements for false advertisement:
  1. Fraud (when the product is displayed and what is received is different.)
  2. Falsity (it refers to inconsistency in the facts)
  3. Misleading (when the product is shown in such a way which creates impression of untrue features)
There is no universal definition of misleading advertisement, but there have been various attempts to define misleading advertisement.

As per Merriam Webster:
the crime or tort of publishing, broadcasting, or otherwise publicly distributing an advertisement that contains an untrue, misleading, or deceptive representation or statement which was made knowingly or recklessly and with the intent to promote the sale of property, goods, or services to the public.

There are plenty of examples which are held to be misleading.
Deodorants ads broadcasts, after applying deodorants women started changing men, after applying deodorant men started looking handsomer, women gaining confidence after applying deodorants. (Axe Body spray)

Advertisements like, after consuming energy drinks customers are getting wings and starts flying, after consuming consumers are becoming sharper and more intelligent. After consuming soft drinks, consumers become fearless. (Red Bull, Mountain Dew)

Advertisements like before applying fairness cream, women were not smart and unable to clear interviews and after applying fairness cream, women not only became fair but also became smart and intelligent. (Fair and lovely)

Advertisements like, after using toothpaste, people have experienced such good results that they replaced tube lights and bulbs by human beings for light. (Colgate)

In all these examples the brands have exaggerated the features of the products and people have huge influence by the way of broadcasting.

Advertisements Influence On Consumers

A company wants us to believe that we should live our life like they display on screen, with their products. They focus on the weakness of people and claim how their products can cure it. They also focus on childrenís vulnerability as children are most affected by what they see.

Advertisements of chocolates, cold drinks, fast food etc. only show the positive side, they donít display their harmful effects on a healthy body. Advertisements also affect the culture, advertisements are made to attract us, change our attitude and command our behaviour.

There is a scientific study by a North Carolina State University professor that shows, the more advertisements are deceptive the more attention it will gain from our brain and have more influence on it. However, all these practices have been observed and our laws are trying to minimize the bad influence towards society.

Misleading Advertising In Medical/ Health Care/ Cosmetic Industry

In the past few years, a large number of false and misleading advertisements relating to cures and treatment for venereal diseases, stimulants and health improvement have been circulated from newspaper to magazine. As there is popular saying health is wealth or Quest for wellness therefore, people usually aren't hesitant to pay huge amounts of money for these products and end up losing money but also suffer from immense harm and bodily injury. Therefore, we have the drugs and magic remedies (objectionable advertisement) Act to censure, prohibit and regulate these advertisements. Few popular examples are from curing diseases like Cancer and AIDS, Epilepsy and getting tall by surgery.

Few important authorities
  1. Consumer Education and Research Society V. Godrej Soaps
    Hair dye manufacturing advertisement marketed by Godrej Soaps alleged that a consumer could be assured of the quality of the product and were totally safe. But the Results showed that the agent used in the manufacturing of the product caused tumour because of the carcinogenic agent inside it. This created a misleading impression on the consumers and therefore, direction has been issued to the company to delete and drop the word totally safe, from the advertisement.
     
  2. Smt. Divya Sood V. Ms.Gurdeep Kaur Bhuhi
    Times of India published an advertisement that alleged by The Body Care that weight can be reduced without dieting. A complaint has been filed in the consumer forum that even after paying prescribed amount and undergoing treatment her weight did not reduce and found out that the advertisement was totally bogus. Compensation has been awarded and held that such tempting advertisements mislead consumers and should be controlled.
     
  3. Dr. M. Kumar Vs Vijay Kumar Srivastava
    In this case a complaint was filed against a person who was practicing medicine in the name of Dr. M. Kumar B.D.S. even though he has No degree of B.D.S. or M.B.B.S. and had a degree from alternative medicine which is not recognized by Medical Council of India and in the course of this he performed extraction of teeth of a 8 year old boy.
The blunder he did is that he removed four teeth in the place of two. Court held him liable for false and misleading representation and unfair trade practices under section 2(r) of consumer protection Act.

The list of instances is big in number, every other day there is a case of such nature. When advertisements contain words and phrases like Ďnutritiousí, Ďhealthyí and Ďgoodnessí, we tend to believe them as true and get into the illusion that we are making the right decision by consuming those products.

Misleading Advertising In Educational Sector

Education presently is big business now. Earlier it was considered as a professional sector however, education is now being sold for cash. In India, money invested in professional private colleges is approx. Rs32,750 crore and money invested in coaching centers that helps students to prepare for entrance exams like JEE, NEET, CLAT etc. is approx. Rs3,740 crore.

These institutions publish their ads in newspapers, magazines, hoarding etc. regarding placements offered by colleges or no. of students being selected in the entrance exams. These educational institutions spend around Rs.38,000 crore for advertising in televisions and online platforms.
  1. Colleges
    Indian students are fascinated by the placement records. Colleges publish false information to get admissions for instance many universities claim hundred percent placements but do not disclose that only those students are counted who have opted for placements and passed their exams. After that for attending placement drives students have to first clear the eligibility criteria like minimum 7 CGPA 75% attendance. Those who are not able to clear the criteria do not get the chance to attend placement drive and are also not counted.

    After all the tantrums of college, students who have opted for placement, clears the eligibility criteria, paid extra fee for drives are counted and declared 100% placements.
    For example, imagine there are a total 1000 students in engineering courses, out of those only 600 opt for placement services. Now out of those 600 students 300 could not clear eligibility criteria the remaining 300 students attended placements drives and got placed. By placing 300 students the college condemned 100% placements.

    There are many cases which claim false data regarding placements for instance Manav Knowledge City, an educational institute based in Maharashtra published misleading advertisements saying Highest Academic Result, Highest Placement. The advertiser also claims lowest fees in their advertisement which was also held fallacious in nature by the consumer forum . On the other hand, Arihant Education Group- Arihant College released a manipulated advertisement where they claimed to be Recipient of 14 awards. The CCC review. Nowadays many courses are being advertised by various unauthorised institutions.

    For the sake of certificates online courses are being sold through online platforms, which are being touted by uneducated or unskilled academicians. Guidelines of GAMA, ASCI Consumer act etc. are working on such fake online courses.

    An incident happened in Gondia, Maharashtra, a technical was offering a diploma course and states that, it is a recognised and affiliated course. 70 students had enrolled in the course and paid thirty thousand rupees for the diploma course. Even after a year the institute did not conduct any examinations as promised. After getting nervous about the course they lodged FIR against the institute. With the due investigation it was seen that the institute was neither affiliated nor recognised.

    There are many cases where educational institutes advertise about their fake affiliation and recognition. Counterfeiting their recognition is prohibited under various laws. In 1994, National Consumer Disputes Redressal Commission ordered Buddhist Mission Dental College to pay compensation to its students for false affiliation and recognition.
    Frauds like this can ruin a personís career. To be aware of recognitions and affiliations there is an organization named All India Council for Technical Education (www.aicte-india.org), here affiliations of universities, colleges or any other educational institutions can be verified. Another scam which universities do is, whenever any student secured any job by their own either through reference or through their own arranged outside campus interviews, universities take all the credit of that also and claim all the efforts are done by the institution.
     
  2. Coaching Centers
    If we talk about coaching centers, they are doing huge business in the name of education. Thousands of students are enrolled for the preparation of entrance exams. All the fee is taken in advance and if a student is not satisfied or could not secure admission no refund of fee is there in the system.

    At the time of admission students are promised equal treatment and best faculty teaching but after getting inside the coaching center, potential students who could clear the exams are taught by the best and experienced faculty and the rest students are being taught by less experienced faculties. Potential students are given more attention and whereas weak students are treated as leftovers.

    After the announcements of results, those students who are able to crack the entrance exam their name and photographs are used for advertisements. Sometimes if the coaching center is not able to gather many achievements, they pay other students to claim that they have been taught by that very coaching center even though they haven't attended a single class.

There are some of the cases which are against ASCI Guidelines for Advertising of Educational Institutions.
BYJUís Classes: there advertising claims Best CAT Coaching Institute in India, GMAT Topper, Unique CAT Pattern Workshop, Canít Compare with Byju & Santosh 80% of the students have crossed 90 percentile over the last 5 years,etc. These claims were very vague. So many other things were also claimed like best teachers, study material, platform and so on, but there is no written clarification for all of these. These claims violate advertising norms.

CL Educate Ltd. (Career Launcher): cloudy affirmations like The No.1 Cat Test Series Program, Most recommended test series, Rated the best by students, True percentile predictor these all claims are not verified by any organisation.

Triumphant Institute of Management Education P. Ltd (TIME): They advertised about ranking of a student named Karnak Verma that she secured 3rd position in IAS CSAT exam. Though the Union Public Service Commission did not confirmed so.

It's easy to run coaching centers rather than running a college. Due to high pressure for college entrance exams parents are ready to spend lakhs for the preparation. These coaching centers do not provide any certificate for the coaching even though students have to first pass the entrance to get into the coaching center. Every coaching center claims to be no.1, if every coaching institute is in the first position, then who comes last?

Another question is, what is the benchmark to be no. 1? Coaching centers are just running business without any emotional values of the students. In 2017, Andhra Pradesh and Telangana had 50 cases of student suicide in just 60 days. They put a lot of pressure on students, and when they could not clear the entrance simply declare it's not our fault, the student did not study well. In India there is a huge requirement to make special laws concerning coaching centers. Satisfaction level of students also should be published in the advertisements.

Use Of Social Media To Promote A Brand

where consumers go, advertisers will soon follow
Social media platforms are swiftly evolving and expanding at a high scale. But interestingly social media are becoming a commercial focus of marketing and increasing sales opportunities. A 2010 study showed that social media has been used as the best way to communicate to consumers by 40% companies globally. Social media offer advertisers increased brand recognition, loyalty than traditional print, TV and radio. It has become an ideal landscape for advertisers. Over One- third of consumers spend their online time using social media sites. Whether itís YouTube, Facebook, Instagram, snapchat or twitter tops the ranks for use by consumers and all of these have their economic advertising.
  1. Covid-19
    This pandemic has drastically affected people's lives and also adversely affected several industries all over the world. Our lives are restricted to four walls and the only way to the outer world is through electronic media. The use of the internet significantly increased after the lockdowns. A large portion of the population spend their whole day scrolling through feeds of different social media platforms. Therefore, gave an opportunity to several industries to promote false and misleading advertisements and exploit the general public. We have come through various products that claimed to cure novel coronavirus on platforms like Amazon and Facebook.

    Every brand is using tactics to promote their brand and product to make consumers believe it helps protect from viruses. Recently Hindustan Unilever limited (HUL) manufacture of Lifebuoy contested a case against Brand Dettol for broadcasting an advertisement which indicated that their Soap and handwash offered better protection than any other soap, and contested that impugned, advertisement advocated false claims. Subsequently, Reckitt Benckiser removed the advertisement from the public domain.

    Another highlighted instance was from Patanjali founder Baba Ramdev after he announced an Ayurvedic cure for Coronavirus from a wonder drug Coronil. But this whole thing comes to an end as the ministry of AYUSH stopped Patanjali from false advertisement of the medicine. These instances give us a clear picture that different companies and brands just want to make profit out of this crisis by misleading consumers.
     
  2. Fake Ratings and reviews
    Believe or not but most of us check ratings and reviews before buying anything. It gives us confidence in the product's quality and genuineness. So therefore, ratings and reviews are the deciding factor for our decision to go for something or to drop the idea. But what if these ratings and reviews are fake and purchased. Even after a few shopping sites like amazon have come up with a solution like verified purchasers amazon sellers are still buying fake reviews for just 1200 bucks or so. Therefore, in the present times it makes a strenuous task for the consumers to buy a genuine thing and also remain safe from false and misleading activities.
     
  3. Data breach or retargeting
    When we search something at some online shopping site, we have seen ads for the same thing even when we visit other sites. It is a popular marketing practice to persuade us to go back to that shopping and complete the purchase. Maybe it comes to some consumers as a good way to persuade them to purchase what they want, but most of us donít buy this idea and usually get irritated with repeated ads following us everywhere.
     
Therefore, we can avoid this problem in two ways. The first is to visit these shopping sites in private-browsing or incognito-mode so that site won't be able to retarget your search preference. Second is to go to your account settings and change your advertising preferences and go to do not personalize ads from amazon for this internet browser.

Laws Governing Advertising Policies

As there is a need of advertising policies, Indian Legislature have enacted various laws to provide justice to the consumers and the following laws are:
The Consumer Protection Act, 1986
Consumer Protection Act, 1986, is considered as the principal legislation for the consumer rights also defines the term Ďunfair trade practiceí under section 2(1)(r). Under this Act, false and misleading advertisement was also treated as part of an unfair trade practice.

Although this Act gave a very exhaustive definition but still as interpreted in Maruti Suzuki India Ltd. v. Rajiv Kumar Loomba The Supreme Court has held that an unfair trade practice as defined in Section 2(1)(r) of the Consumer Protection Act, 1986 may be noted that is an inclusive one, and is not exhaustive of Sub-clauses (i) to (x) therein. Although the definition of UTP given in the Consumer Protection Act is the same as the one used in the MRTP Act, the mechanism for its regulation under the Consumer Protection Act is substantially different. The regulatory provisions of the Consumer Protection Act are to be enforced through the redress of grievance by a three-tier, quasi-judicial machinery, set up at the district, state, and the national levels.

The Indian Contract Act, 1872
The Sale of Goods Act, 1930 has laid down an implied warranty as to fitness and quality of the products and goods by the seller and promotes consumer interest. Section 16(2) The Sale of Goods Act,1930 introduced an implied condition of merchantability. Here the word merchantable means that goods must be reasonably fit for the ordinary purpose.

Section 15 was primarily inserted to provide legal regulation and to control false and misleading statements. It laid down that goods shall correspond with the description. Courts have interpreted that when a descriptive word or phrase is used to describe the good in a contract it creates an implied condition that the product will correspond to the description.

The above-mentioned implied condition of merchantability generally does not apply under The Sale of Goods Act, 1930 because of the rule of caveat emptor. But this rule has an exception wherein the responsibility of the quality and fitness of the product was expressly on the seller. Hence, when a consumer is purchasing something from an online store, the seller has responsibility as to the fitness of the goods.

Law of Tort
Remedies under tort were also available to consumers to make manufacture and sellers liable for fraudulent trade practices. Individuals could claim compensation for the damages incurred by him due to unfit, dangerous, defective product, willful negligence, fraud and deceit.

The Monopolies and Restrictive Trade Practices Act, 1969 and Consumer Protection Act, 2019
The Monopolies and Restrictive Trade Practices Act was introduced in 1969 with the objective to secure social and economic justice for all and to implement the directive principles of state policies as envisaged by the constitution. This Act was the result of the committee appointed under the chairmanship Dr. Mahalonobis to address the evil of monopoly of trade and business in the hands of few corporate houses. In nutshell the main objective of the Act is to stop monopolistic restrictive and unfair trade practices which adversely affect consumer interest. A commission has been established under this Act to investigate and pass necessary orders for above mentioned objectives.

Misleading advertisements was defined as an Unfair Trade Practice which encompass a broad array of torts, all of which involve economic injury brought on by deceptive or wrongful conduct. Section 36 A The Act lists unfair trade practices.

Section 36 A has five sub-sections covering different themes.
  • 36 A (1): False representation of products or services, including false description, guarantee, warranty or performance of a product or service
  • 36 A (2): Advertisement of false bargain price.
  • 36 A (3): Contest, lotteries, game of chance or skill for promotion of sale.
  • 36 A (4): Sale of goods not in conformity with safety standards provided by the law.
  • 36 A (5): Hoarding or destruction of goods or refusal to sell goods.

In most of the cases; the commission took the matter seriously and either passed a cease and desist order or ask for an undertaking from the respondents u/s 36D(2) of the MRTP Act that the said unfair trade practice would be stopped and would not be repeated in future. Shortcomings of the definition given by MRTP is that it is too specific and sellers and advertisers can come up with new forms of unfair trade practices and therefore we need a general definition which can curb unexpected and unspecified categories of unfair practice.

Other statutes
Above discussed legislations are the principal legislations in regulating false and misleading advertisement but there are various other legislations exist to check the same by contemplating other regulatory authorities.

The Food Safety and Standards Act, 2006
Food Safety and Standards Authority of India lays down scientific based standards for food items and their manufacture, storage, distribution, sale and import has been regulated to ensure availability of safe and wholesome food for consumption. The Act regulates the law in regards to advertising and UTP in the food sector. Section 24 of FSSA lays down general principles for advertisement and places restriction on them and Section 52 and 53 of the Act prescribe punishment for the same.

The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce Production, Supply and Distribution) Act, 2003
To implement the objective of the resolution passed by the 39th WHO, in 1986 which urged member states to involuntary exposure and addiction to smoking, the Act was passed to prohibit and put a total ban on the advertisement of cigarettes and tobacco products which is defined in section 3(A) of the Act.

The Drugs and Cosmetics Act, 1940
This law regulates the production, manufacture and sale of all drugs and cosmetics in the country and prescribes a fine of up to 500.

The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1955
Introduced to regulate advertisement in relation to drugs and magic remedies because it encourages self-medication of harmful drugs and costs the lives of many persons. Section 4 put an express prohibition on the participation of any person in publication of such advertisement.

The Cable Television Networks (Regulation) Act, 1995
For the purpose of regulating increasing numbers of cable television networks. Due to lack of licensing mechanism this cable operators broadcast programmes without regulations. Therefore provide a advertisement code (section 6) which should be followed by all cable services. Punishment is given in section 16. The Ministry of Information and Broadcasting has also made it mandatory also to comply with the ASCIs code of Self -Regulation in the broadcasting sector.

Industry based self-regulation

Advertising Standards Council of India (ASCI), Mumbai, which is a voluntary organization has adopted a code of internal and self-regulation in advertising for India. The UK and 71 countries across the globe are already following the same concept. It promotes honest advertising and to fair competition in the market-place.

The Code tries to achieve the situation of fair advertising practices in the interest of the consumer. It applies to every advertisement whether it is read, heard or viewed and directed towards consumers in India, even if it originates or is published in any other country. ASCI entertain complaints by the consumer or even an industry complaints council (CCC).

How To Win Over False Advertisements

It is rare to find any genuine advertisement nowadays, but there are ways by which one can note down the true meaning of the advertisement.

Do not omit key information: while purchasing a product or availing any service, always read full details regarding that. If any offer is given by the seller, always read the terms and conditions. In food items all the details of ingredients are mentioned. If anyone has sensitive health or is allergic to anything should always read that first.

Price and quantity ratio: while comparing to other products, one should always compare price and quantity ratio. If a productís price is low, that does not mean it is cheaper. Other products might be expensive but provide much more quantity or quality.

Determine exaggerated facts: always use rational mind to judge the features of a product and whether it is able to give claimed results or not. Any products claiming extraordinary results, donít believe it on the very first instance.

Check the authentication of products/services: there are plenty of authentication marks given to several products, for example electronics product is authenticated with ISI marks, gold jewellery is authenticated with hallmark. Educational sectors are also being approved by UGC. so, before buying any product or availing any service always check the authentication.
Report to ASCI: any unfair advertisement can be reported to ASCI. It is a voluntary organisation which works against misleading and fake advertisements.

Conclusion
In India, the first advertisement on television was shown in 1976. Since then the advertising industry has shown drastic changes. The impact of advertising on consumers is irrefutable, and that is the reason why commercial advertising should be reasonable and honest. It's been 30 years since the Consumer Protection Act, 1986 was enacted, yet misleading advertisements are still prevailing. Advertising industry holds a good part in our economy; hence it also has severe responsibilities towards the customers.

There is a saying by George Parker that - The only people who care about advertising are the people who work in advertising. However, it is the duty of the consumer to be aware of his rights, and should be able to raise his voice against any oppression.

Many of the customers have been victims of false advertising, even in highly respected professions like education, medical, etc. displays misleading advertisements.

The path nowadays to promote any brand is social media, which is highly affected by false commercials displays. Manipulation in ratings, fake likes and comments, paid audience etc. tries really hard to improve a brandís value. However Indian Legislature has put various attempts to curb the unethical behaviour of companies, but now laws can work efficiently if the society is not aware of that. To save ourselves from misleading advertising it is very much important to be aware of this and willing to work against false advertising. This research is an attempt to make society aware of the malpractice and incite the readers to avail their rights.

Written By:
  1. Saloni Jain &
  2. Chander Mohan Ashish

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