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
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.
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 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
There can be three elements for false advertisement:
- Fraud (when the product is displayed and what is received is different.)
- Falsity (it refers to inconsistency in the facts)
- Misleading (when the product is shown in such a way which creates impression of
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,
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.
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
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
- 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
- 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.
- 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.
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.
There are some of the cases which are against ASCI Guidelines for Advertising of
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
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.
- 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 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):
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
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.
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.
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.
- 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.
- 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
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
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
- 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.
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
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.
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
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.
- Saloni Jain &
- Chander Mohan Ashish