With the widespread use of advertising, came many of the typical advertising abuses such as false claims, where the advertisers claim that their product does something that other products fail to do; product disparagement, where the advertiser unjustifiably attacks or denigrates the other competitor’s product and false representation, where the information is misleading and untruthful.

The law needs to respond to these abuses since mere judicial pronouncements are not enough. A statute codifies and consolidates the fundamental principles, rules, methods, values, aims and objectives of a particular idea or practice which is exactly what is required for false and misleading advertisements in India as it not only affects the traders in the market but also the welfare of the consumers.

Further, the objective behind advertising was not only being informative and being an important tool to promote competition but also for comparisons, like in case of comparative advertising wherein the comparison is made not only for sale of its products but also for comparisons to serve as benchmarks to help consumers focus on the product’s main qualities. Today every company is indulged in making its brand more superior than the other as a result of which the Indian economy is facing a cut throat competition as market forces are not only attracting the consumers and their likelihoods but also trying to retain them as patrons. In addition to this, the judicial precedents have created complexity rather than simplifying the law on comparative advertisements. The established position is such that advertisers are benefitting from the loopholes created by the contradictory precedents.

OBSERVATIONS AND RECOMMENDATIONS

It is necessary to devise a set of effective sanctions to curb deceptive or unfair practices and to evolve correct advertising guidelines. It is inevitably essential to protect the interest of the consumer and equally to help the advertiser to desist from using deceptive advertising practices. However, there should be some guidelines in order to curb the misleading advertising and regulate today’s advertising. In this regard the important recommendations on the Law and the Consumer, adopted at a seminar held in Hongkong from 6^th January – 10^th January, 1980, are relevant to serve as guidelines which shall also be adopted by India.”

The recommendations are as follows:

• There should be effective measures to control advertisements to eliminate those that are misleading, untruthful or otherwise unfair to consumers
• There should be studies on the impact of advertisements, particularly in respect of vulnerable groups like children and low-income consumers
• The Consumer Organizations should have the right to challenge misleading and false advertisements.
• The provision should be incorporated in appropriate legislations that the onus of proof that the advertisement was true should be upon the advertiser
• The importance of the consumer education to help the consumer to develop critical attitude towards advertisements should be recognized.
• The examples of misleading advertisements between consumer groups, both in the home and the host countries, should be exchanged to control multinational advertisement practices.
• The usefulness of press statements and other forms of publicity in response to particular undesirable advertisement should be considered.
• The media owners should be encouraged to take greater responsibility for the advertisements published by them.
• The effective measures for securing compensation for damage or other appropriate relief for the consumers caused by misleading or false advertisements should be implemented.
• The effective representation should be given to the consumer organizations to protect the interests of the consumers in the advertisements control bodies and there should be publication of appropriate correction of objectionable advertisement claims, as early as possible.
• The review committee on advertisements should be established to guide the Government vis-a-vis the rights of the consumers and the producers.

Corrective Advertising

False or misleading advertisement once viewed has a life of its own. Once a false and misleading advertisement has been successful in creating an image among the masses, there will be residual effects of the unlawful advertising which will continue to influence the consumer’s decision whether to purchase it even after the unlawful advertising itself has been discontinued. Studies have indicated that there is normally a delayed response by consumers to advertisements. This delayed consumer response to or residual effect of an advertisement is a recognised phenomenon in advertising and has been analogized to a capital asset with a predictable rate of depreciation. The cease and desist order rightly called an order “to go and sin no more” is often ineffectual, as it does not help to dissipate the false impression previously created by the false or misleading advertisement. The premise of corrective advertising is that it can prevent this continuing deception by eliminating the false impression that may result from the lingering effect of a false or misleading advertisement. It is aimed at correcting this false impression in a manner calculated to gain exposure equal to that of the initial deception.

In the recent years the concept of corrective advertising has become an issue of considerable concern to advertiser, academic and government decision maker. It generally refers to an order that a firm not only cease and desist from its deceptive advertising, but also refrain from future advertising of a product for a specified period of time, unless it corrects the misleading impression that its prior false misleading advertisement had created.

In India, it is necessary to have a National Advertising Review Board and it should be a joint creation of the advertising industry and the government for regulating healthy and growth-oriented advertising process in the country. This kind of beginning must be made in India if the bad effects of advertising are to be checked in the interests of the vast population of consumers in India. This board will make serious efforts to check irrational approach in the advertising process and could suggest better methods of advertising whereby consumers could be benefited and may help in the growth of commerce and industry in the country. If the consumers are provided with truthful data, then it will help the consumers in making the right purchase decisions. Advertising should also be regulated with the object of increasing effective competition in the market. Governmental regulation of advertising will result in the efficient purchase decisions by the consumers at large. In every advanced country of the world, the informed consumers are essential part of the free, fair and efficient functioning of a free market. Packages and labels must enable the consumers to obtain accurate information with regard to the quantity and quality; it will be easy for the consumer to value the product in appropriate, efficient and rational manner. Therefore, it is necessary to assist the vast consuming public and the manufacturers for various products and the government must come forward in regulating advertising process to achieve highest goal in the marketing of consumer goods in a developing country like India.

Monetary awards

Dishonest comparative advertising is a flagrant attempt to abase the competitor’s product. Since it causes special damage to the product, that is pecuniary harm, damages must be awarded to the aggrieved party. For a country like India where there is no specified law on comparative advertising it becomes all the more important for the judges to delve into the complications of the matter in hand and explain to all the parties concerned the consequences of such advertisements by imposing appropriate punishment in the form of monetary awards.

By Mehr Kaur,