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October 13, 2020

Summary: Guidelines For Prevention Of Misleading Advertisements And Necessary Due Diligence For Endorsement Of Advertisements

Author: Sunidhi Bansal

The Ministry of Consumer Affairs released a draft of the “Central Consumer Protection Authority (Prevention of the Misleading Advertisements and Necessary Due Diligence of Endorsement of Advertisements) Guidelines, 2020”. The guidelines cover, “all types of advertising/ marketing communications regardless of form, format or medium”. It is applicable to manufacturers, service providers, as well as to advertisement agencies and endorsers of products/services.

The guidelines lay down the criteria of valid advertisement, which includes, inter alia, truthful and honest representations; not misleading consumers by exaggerating the capability or performance of the product; not suggesting that the claims made in it are universally accepted.

The guidelines permit comparative advertising if “…factual, accurate and capable of substantiation… not present a good or service as an imitation or replica of a good or service with a protected trademark or trade name”. The guidelines lay down that comparative advertisement in which the competitor is named is permitted in the interest of promoting competition, but the features of the advertiser’s products need to be specified clearly within the advertisement and the subject matter of the comparison shall not be of the nature that confer an artificial or unjustifiable advantage upon the advertiser.

The guidelines also deal with the issue of misleading endorsement by putting an obligation on the endorser of a product or service, to take due care to ensure that all descriptions, claims and comparisons, endorsed or made in advertisements, are capable of being objectively ascertained and substantiated. The endorsement shall not convey any express or implied false, misleading or deceptive representations.

The guidelines further lay down the provisions on, bait advertising, surrogate advertising, puffery, free claims, advertisements targeted at children, prohibited advertisements, disclaimers made in supporting, limiting or explaining claims made in advertisements, duties of manufacturer, service provider and advertising agency, etc.

The MCA invited views/comments/suggestions on the draft guidelines, to be submitted by October 1, 2020 : https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Date_Extend.pdf.  The MCA notification itself along with guidelines can be accessed here: https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Draft%20guidelines%20for%20stakeholders%20consultation.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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