No more misleading ads: Supreme Court makes self-declaration mandatory before every advertisement

Misleading ads: SC verdict (AI image)

Targeting to safeguard consumers against misleading advertisements, the Supreme Court, on 07.05.2024, ordered that no advertisement shall be posted, broadcast, aired or shown without a prior self-statement by the advertiser purporting that the advertisement is not misleading. The Court relied on its constitutional authority to impose what it considered as the fundamental right to health and informed consumer choice. The order was passed while hearing the contempt proceedings against Patanjali over the publication of misleading advertisements, but the Court used the occasion to address the larger systemic problem of deceptive health and FMCG advertisements across India.The order was passed by a Bench of Justice Hima Kohli and Justice Ahsanuddin Amanullah in Indian Medical Association v. Union of India, a continuing matter concerning misleading medical and health claims in advertisements.The Court clarified that the current regulatory regime did not help to stem the spread of fraudulent promotions and thus the judiciary had to step in to “fill the vacuum”.Background:The writ petition was originally filed by the Indian Medical Association (IMA), raising concerns about misleading advertisements relating to medical treatments and health products. During the course of hearings, the Court expanded the scope of the issue to scrutinize the whole ecosystem of advertising regulation in India, the role of the Ministry of AYUSH, Ministry of Health, Government of Consumer Affairs, Government of Information and Broadcasting and state licensing authorities.The case also examined whether complaints received under the Grievances Against Misleading Advertisements (GAMA) portal were actually being acted upon and whether the Central Consumer Protection Authority (CCPA) guidelines were being meaningfully enforced.Other claims that were brought before the immediate proceedings included the allegations that some parties still continued to release deceptive advertisements despite earlier orders offered by the Supreme Court. Apologies were made publicly. Nevertheless, the Court became entangled into a bigger structural problem why deceptive advertisements still flourish even when several laws had already been enacted. Court’s Concern and AnalysisThe Bench examined affidavits of various ministries and discovered a very unsatisfactory enforcement image. Statistics showed that there was a considerable number of complaints that were received over the years, but very few cases led to any real action.The Court observed:“It is said that the consumer is a king. There has to be some answerability from some agency… Consumer should have a remedy. If there is a system in place, that should work.”The Court stressed that consumers cannot be expected to “run from pillar to post” in search of relief and that the system must provide a clear and effective remedy.The Court also noted that despite having statutory protections under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, the Drugs and Cosmetics Act, 1940, the Consumer Protection Act, the Food Safety and Standards Act, misleading advertisements continued to circulate “with little or no accountability”.The Court observed:“We are of the opinion that when the C.P. Act, 1986 has dedicated an entire chapter to the Central Consumer Protection Authority (Chapter III) that contemplates establishment of a Central Consumer Protection Authority by the Central Government to regulate matters relating to violation of the rights of the consumers, unfair trade practices and false/misleading advertisements which are prejudicial to the interest of the public and consumers and to promote, protect and enforce the rights of the consumers as a class, the said provisions ought to be used with much more vigour and intensity.” Another eye-catching section of the ruling concerns the recommendations of the celebrities. The Court provided a warning that celebrities and influencers cannot get off the hook of promotion of misleading goods.The Bench stated:“Advertisers/advertising agencies and endorsers are equally responsible for issuing false and misleading advertisements.”It pointed out that the influence of the recommendation of celebrities on customers is strong and thus should be subjected to due diligence. The Court relied heavily on the CCPA Guidelines, particularly Guideline 13, which requires due diligence before endorsement.The Court noted that there are already existing guidelines; such that the endorsers must have a sufficient knowledge or experience with the product and that the advert is not a misleading one- however these guidelines are being applied with a lack of seriousness. The Court also framed the issue not merely as consumer protection, but as a constitutional matter linked to the right to health.It held:“It is deemed appropriate to invoke the powers vested in this Court under Article 32 of the Constitution of India for the enforcement of the fundamental right to health that encompasses the right of a consumer to be made aware of the quality of products being offered for sale.”The Bench concluded that the absence of an effective enforcement mechanism created a legal vacuum that the Court was duty-bound to address.To plug this gap, the Court issued one of its most significant directions and described it as a “tide over measure” until a stronger enforcement structure is implemented.It directed:“Henceforth, before an advertisement is printed/aired/displayed, a Self-declaration shall be submitted by the advertiser/advertising agency…”. The Court said that the declaration has to affirm that the advertisement does not breach the law and neither contains false or misleading statements. The Court used the framework of Rule 7 of the Cable Television Rules that forbids advertisements that claim miraculous or supernatural properties, exploit social evils, mislead consumers, violate morality or decency, promote illegal substances, degrade women or communitiesIn order to operationalize this system, the Court directed the following: –

The Court ordered:“No advertisements shall be permitted to be run… without uploading the self-declaration.” “Immediately after the portal is activated, all ads in press/ print media, the advertisers shall file the self-declaration before issuing any advertisements in the print media,” the order added.It further clarified:“The above directions shall be treated as the law declared by this Court under Article 141 of the Constitution of India.”This means the ruling has binding nationwide effect.The Court also ruled that an administrative letter issued by the Ministry of AYUSH in 2023, which effectively paused enforcement of Rule 170 of the Drugs and Cosmetics Rules, could not override a statutory rule. It directed the Ministry to immediately withdraw the letter, observing that executive instructions cannot suspend a law that remains in force.The Court was further concerned that in many cases, complaints made by consumers were simply shuffled among various departments without taking any action on the matter, leaving hapless citizens without any clue as to what happened in the end regarding the complaints.Upon noticing the extent of this lack, the Court directed the Ministry of Health and the Food Safety and Standards Authority of India (FSSAI) to file detailed affidavits disclosing complaints received since 2018 and action taken in cases involving misbranded food, misleading food advertisements and substandard products. The Bench emphasized that FSSAI is empowered to act suo motu and cannot wait for complaints.The Court also examined government data showing that between 2018 and 2024, over 1600 complaints were received against broadcasters, yet enforcement action was taken in only a fraction of cases. The Bench described the enforcement record as deeply unsatisfactory.Finally, the Supreme Court highlighted that the misleading advertisements are not a minor regulatory issue but a direct consumer rights concern inherently connected with the health of people and trust in society. The Court further stressed that the whole set of statutes, rules, and guidelines have been modelled in such a manner that they would benefit consumers and ensure that consumers have unequivocal information on what they are buying particularly in the very sensitive area of food and health.In simple words, the Court has drawn a line that the advertisements which can affect the health issues and trust of people will no longer be treated as innocent exaggerations. The Supreme Court has shifted the priorities to the consumer by making advertisers, endorsers and the regulators responsible as well. The decision gives an indication that the right to health, in the current market, extends to the right to truthful information and this is a promise that should now be put into practice.Case Title: Indian Medical Association v. Union of India | W.P.(C) No. 645/2022(Vatsal Chandra is a Delhi-based Advocate practicing before the courts of Delhi NCR.)