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*SOURCE: https://www.thehansindia.com/hans/opinion/news-analysis/let-the-rule-of-law-prevail-not-the-law-of-rulers-693985*

Author: Snigdha Parvathy

(BBA.LLB, 2022-27, Alliance University, Bangalore)

Consumer-Protection-and-Ethics-in-Advertising-A-Legal-Evaluation Download

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Abstract

Consumers are protected from dishonest business practices, unsafe goods and services, and defective products by consumer protection laws. Because they help keep sellers honest and free of unpleasant surprises, they are essential to a reliable market economy. In today’s competitive, globalized, and liberalized market, all advertisers are permitted to publish anything after exploitative practices to combat the challenge posed by various brands. For a considerable amount of time, the advertising industry has practiced and developed a deliberate self-guideline.

This paper examines the legal framework surrounding consumer protection and ethics in advertising. It analyses the role of various legal instruments in safeguarding consumer interests and regulating the conduct of advertisers. The paper delves into the ethical considerations that advertisers must take into account while creating advertisements and presents a comprehensive evaluation of the regulatory mechanisms in place to ensure that they comply with legal and ethical norms.

Keywords: Consumer Rights, Advertisement Ethics, Consumerism, Consumer Protection Right, Advertisement Guidelines.

Table of Content

1. Chapter-1 Introduction

1.1. Introduction

1.2. Research Problem

1.3. Research Objective

1.4. Research Question

1.5.Hypothesis

1.6.Methodology

2. Chapter-2 Advertising Ethics and Consumer Protection

2.1. Meaning of Advertising Ethics

2.1.1. Unethical Practices in Advertisement

2.2.Meaning of Consumer Protection

2.3.Misleading Advertisement and Consumer Protection Act 2019

4.Consumerism

2.4.1. Consumerism in India

Chapter-3 Role of Indian Judicial System in ensuring Consumer Protection and Advertising Ethics.

3.1.Consumer Rights as per Indian Constitution

3.1.1. Preamble

3.1.2. Article 19 of Indian Constitution

3.1.3. Article 21 of Indian Constitution

3.1.4. Article 32 and 226 of Indian Constitution

3.1.5. Article 38 and 39 of Indian Constitution

3.1.6. Article 47 of Indian Constitution

3.2.Consumer Rights as per Consumer Protection Act

3.Law And Act Governing Advertisement in India

3.3.1. Consumer Protection Act ,1986 and Advertising

3.3.2. Cable Television Regulations Act,1995,Cable Television Amendment Act

3.3.3. The Indian Penal Code And Criminality Of Advertisement

Guidelines by IAE
- Guidelines by ASCI
- Self-Regulation and Consumer Protection Laws
7.Case Laws

3.7.1. Landmark Judgements related to Advertisement

3.7.2. Case Laws Related to Misleading Advertisement

Finding 5. Conclusion 6. Bibliography

1. Chapter-1 INTRODUCTION

1.1 Introduction

Legislation aimed at safeguarding consumers from dishonest business practices, unsafe goods and services, and faulty products is known as consumer protection legislation. They are crucial to a dependable market economy because they help keep sellers honest and free of unpleasant surprises. Consumer protection is enforced by state agencies and statutes, with some states being more consumer-friendly than others. Federal laws may be expanded by state laws. Because everyone in a country, rich or poor, buys goods and services on any given day or at least once in their lives, they are all consumers. In our economy, consumers have been elevated to a higher status since ancient times. A government’s primary responsibility is to safeguard its welfare and interests. As a result, any product is now manufactured according to the preferences of the customer. The idea of treating the consumer in a market as “king” or “supreme” is referred to as “Consumer Sovereignty.”

The Supreme Court of India has ruled that commercial speech is centred on Advertising, which is included in freedom of speech and expression, which is a Fundamental Right under article 19(1)(a) of the Indian Constitution. Advertising is one of the methods of mass communication, along with other methods like publicity, sales promotion, and public relations. Indeed, without its services in communicating with the public, many industrial and commercial businesses would have to close, their employers would lose their jobs, and the economy would collapse, according to the definition of advertising. It is a promotional message and a selling idea because it offers the most persuasive selling at the lowest cost. Established in 1985, the Advertising Standards Council of India (ASCI) supports selfregulation in advertising to safeguard consumer interests. Advertisers, Advertising Agencies,

Media (including Broadcasters and the Press), and others like PR Agencies and Market

Research Companies all contributed to the formation of ASCI. ASCI is centred on the Consumer Complaints Council (CCC). ASCI’s work and self-regulation in advertising have greatly benefited from the devoted efforts of this elite group.

1.2 Research Problem

While Indian society is well aware of its fundamental rights and responsibilities, other rights are not adequately defined. The purpose of the Consumer Protection Act is to safeguard consumers’ rights. However, the act’s instability aids the market in manipulating customers.

Advertising plays a significant role in manipulating customers. Even though there are rules to follow when making an advertisement, businesses get away with it because customers don’t know much. Because customers control the market, it is necessary to address this issue.

1.3 Research Objectives

A study on Advertising Ethics and Consumer Protection
To examine the role of Indian Judicial System in ensuring Consumer Protection and Advertising Ethics.

1.4 Research Question

 Is Consumer Protection Act of India Stable enough to ensure that the companies follow Advertising ethics?

1.5. Hypothesis

In this research paper, the hypothesis suggests that a legal evaluation of consumer protection and ethics in advertising will shed light on the existing gaps in regulations and enforcement mechanisms. The theory assumes that the findings will support the argument that comprehensive regulations are necessary to protect consumers from deceptive advertising practices and promote ethical standards within the industry.

Supporting Arguments:

Deceptive Advertising: The legal evaluation is expected to reveal instances of deceptive advertising, where companies mislead consumers through false claims, exaggerated statements, or manipulation of information. Such practices can harm consumers by misleading them into purchasing products or services that do not meet their expectations. The findings will demonstrate the need for robust legal frameworks to identify and prohibit deceptive advertising.
Ethical Concerns: The evaluation will also explore ethical concerns in advertising, such as the use of harmful stereotypes, objectification of individuals, or manipulation of emotions to manipulate consumer behavior. The research is likely to uncover instances where advertising campaigns have crossed ethical boundaries, potentially causing harm to vulnerable individuals or perpetuating social inequalities. This will highlight the importance of ethical guidelines and legal regulations to ensure responsible advertising practices.
Inadequate Regulations: The hypothesis assumes that the legal evaluation will identify gaps or inadequacies in current advertising regulations. The research will likely reveal inconsistencies across different jurisdictions, variations in enforcement mechanisms, or loopholes that allow deceptive or unethical practices to go unchecked. These findings will support the argument for comprehensive and updated regulations that address emerging challenges posed by new advertising channels and technological advancements.
Consumer Empowerment: By examining the legal landscape surrounding consumer protection in advertising, the research will underscore the importance of empowering consumers to make informed decisions. It is expected that the evaluation will reveal areas where consumer education and awareness programs are lacking, limiting consumers’ ability to recognize and respond to deceptive or unethical advertising practices. The hypothesis suggests that effective regulations should prioritize consumer empowerment through transparent information, accessible complaint mechanisms, and educational initiatives.

Based on the legal evaluation of consumer protection and ethics in advertising, this research paper aims to provide evidence supporting the need for comprehensive regulations to safeguard consumers and promote ethical advertising practices. By identifying instances of deceptive advertising, ethical concerns, regulatory gaps, and the importance of consumer empowerment, the study will contribute to the ongoing discussions on improving consumer protection measures and ethical standards in the advertising industry.

1.6.Methodology

This is a Doctrinal Research. The study is based on Primary and secondary sources. Primary sources referred to in this paper include Statutes, Cases and Books. Secondary sources include various articles and journals that have been referred to for the purposes of this paper. All the necessary and relevant materials which form a part of the study are collected from a wide range of sources that include books, articles, journals, newspapers, reports and various seminars. The present study is basically a doctrinal one and as such field study was not conducted.

2. Chapter-2 Advertising Ethics and Consumer Protection

2.1 Meaning of Advertising Ethics

Communication with consumers of a product or service is known as advertising. The Advertising Association of the United Kingdom defines commercials as messages that are paid for by the senders and are intended to inform or influence those who receive them. The message of advertising today is conveyed through every available medium. This can be accomplished through direct selling, hoardings, mailers, challenges, sponsorships, notices, garments, events, colours, sounds, and even endorsements. Television, printed media (such as journals, newspapers, and other publications), direct selling, radio, the press, and the internet

Businesses that are hired by businesses that want to advertise their products make up the advertising industry. Advertisements that catch the eye of the viewer are frequently requested from these businesses. These advertisers add “MAGIC MASALA” to a product in exchange for a lot of money. This sometimes affects the sale of a product that no one wants, causing demand to go from zero to infinity. These ads may occasionally target a particular group of people, like children or certain peer groups. Frequently, advertisers engage in unethical conduct, such as making product claims that are not necessary^{.^[1]}

An Advertisement Can Be Misleading Because of the Following Reasons:

If a product or service’s description is false or deceptive; from the nature of the product or service to its quantity and quality, every little aspect of the product should be explained in detail.^[2]
Unfair trade practices are not allowed; the product or service’s manufacturer should not deliberately conceal crucial information.^[3]
Advertisers who do not abide by ASCI’s rules may face severe penalties from the

Advertising Standard Council of India (ASCI).^[4]

If a letter asking for answers regarding the content of their advertisement is sent to advertisers, they must record all of the details of their advertisement within ten days.
If the Authority requests it, an advertisement must be corrected. Before it can be advertised, additional requirements must be met after the changes are made by the Authority’s recommendations; the corrected advertisement will receive the same amount of attention as the original before the correction.
The Authority has the authority to fire or take action against advertisers to safeguard consumers’ interests.
Advertisers can ask for more time if they follow the Authority’s rules and instructions.
The Authority has the authority to decide whether or not to extend the deadline because advertisers frequently require additional time to delay the process. Advertisers are subject to punishment or even a penalty if they do not comply with the Authority’s decision.^[5]

The moral principles that guide a company’s communication with its target audience are known as advertising ethics. How a seller of goods or services and a potential buyer can communicate is outlined by a set of clearly defined principles in advertising. An advertisement that presents truthful statements in a dignified manner is an example of ethical advertising, though individual definitions of decency may differ.

2.1.1 Unethical Practices in Advertisement

Advertising is a pervasive process that is omnipresent because products tend to produce, so it is necessary for selling. Advertising contributes to having both negative and positive effects on society. There is no doubt that it is very important to inform consumers about various products.^[6] It is criticized for encouraging materialism and persuading customers to purchase unnecessary items; fraud, stereotyping, and so on. To avoid these criticisms about the influence of today’s market on consumers and to understand why these ethics are necessary and how they relate to the rights of an honest consumer, we need advertising ethics and some self-regulation.⁷ Some of them are as per the following:

Puffery/Fraudulation

Nowadays, the most important part of advertising is “puffery,” also known as a “metaphor of idea.” It is criticized by critics and pundits, but supporters argue that it protects sponsors and helps operators differentiate their brands from those of competitors. Experts in advertising disagree.^[7] Instead of “truthful data,” puffery is regarded as an “assessment.” Publicists make sure that customers are knowledgeable enough to tell the difference between what is true and what is false. In addition, they won’t ponder everything in a promotion in a haphazard manner. However, the investigations reveal that frequently, a significant number of individuals begin to trust them and purchase products whose notices contain overstated claims.^[8] With enhancements that misrepresented the “quality” and various “offers,” promoters performed their products to such an extent that reality takes a backseat. For instance, a wellknown slipper exaggerates the claim that one can fly after purchasing one, and a mountain climber must purchase a mountain dew to reach a mountain range’s highest peak.^[9]

Falsehood or deception in a product

According to a study, consumers are compelled to purchase a product when misleading information about it is repeatedly presented in the media.¹¹ Although subjective and false claims about the products are occasionally believed, they are false and misleading.^[10] For instance, a retailer is deceiving customers if he claims to be offering a special discount on his products as part of a festival celebration while simultaneously using the festival as an excuse to get rid of outdated goods.^[11]

Nudity and Offense

Advertising can negatively impact consumers’ mental health in a wide range of ways.¹⁴ For instance, how advertisements for personal hygiene and contraception influence people’s attitudes and have a significant impact on children.^[12] As a result, strict regulation is required.

It is not necessary to use one sex to represent something.

Getting people to buy things they don’t need

Numerous critics have stated that advertising should not attempt to persuade consumers by playing with their emotions, tensions, mental needs, and desires, such as status, confidence, or allure. However, they should simply provide useful raw data, such as value, execution, and other target criteria, to help make buy decisions. An advertisement for a bathroom deodorant, for instance, might show that wealth can be valued.

Stereotypes

It includes demonstrating a group of people in a way for example that requires singularity.^[13] We frequently make broad assertions about our society, such as that South Indians are intelligent; Punjabi is raucous, among other things. The father is out of the house, the relatives and the daughter-in-law constantly argue, and so on. Ladies. The most contentious of the advertising stereotypes is that of women and failing to recognize the changing roles played by women in our society. Promoters are criticized for frequently portraying women as preoccupied with success, family responsibilities, and parenthood.^[14]

Women used in advertisements as sex symbols

The most vulnerable segment of society is the primary target of these peanut-minded marketers, who use advertisements for deodorants and condoms to portray women’s modesty in a negative light. These advertisements frequently feature them in a sinister state.^[15]

Aiming at children and adolescents

According to a study, children between the ages of 2 and 11 watch 22 hours of television each week and see approximately 30.000 commercials. Additionally, studies indicate that children are the most sophisticated age group, paying close attention to advertisements, allowing advertising agencies to target these groups by featuring children in their campaigns to gain a large market share or market share in a nation. In one way or another, children are the target audience for nearly 80% of advertisements.

Comparisons of Unhealthy Brands

Nowadays, advertisements engage in unhealthy competition practices, making it difficult and tedious for customers to choose products.¹⁹ The customer’s mind often becomes clouded by this practice. The disagreements that exist between various brands of toothpaste, such as Pepsodent, Colgate, and Patanjali, provide an excellent illustration of the situation.^[16]

2.2.Meaning of Consumer Protection

The term “consumer protection” refers to a collection of laws that regulate advertisers to protect consumers’ rights. But what exactly are consumers?

A consumer is defined by Section 2(f) of the Competition Act of 2002 as anyone who purchases goods or services for a consideration that has been paid and guaranteed under any arrangement of conceded payment and includes any client of such goods or services other than the person who purchases such goods for consideration paid or guaranteed or incompletely paid or somewhat guaranteed, or under any arrangement of conceded payment when such use is made with the endorsement of such person, regardless of whether the purchase is made for resale, business, or personal use.^[17]

As a result, these misleading, false, and misrepresented advertisements continue to violate some legal rights, which authorities frequently overlook, but this should not always be the case when it comes to a person’s rights.^[18]

The significant shifts in consumer markets that have taken place since the old Consumer Protection Act was enacted in 1986 have resulted in the development of a new method for the delivery of goods and services. Global supply chains, an increase in international trade, and the widespread use of e-commerce are examples of these shifts. This made a customer vulnerable to novel forms of unethical and unfair business practices in a similar way. As a result, to address the recurring new issues faced by customers, the Act had to be amended. The current Act was altered in this manner, and the Consumer Protection Act of 2019 was enacted.

Numerous provisions in the 2019 Consumer Protection Act protect consumers’ interests and prevent market participants from exploiting them.^[19]

2.3.Misleading Advertisement and Consumer Protection Act 2019

The Consumer Protection Act of 2019 was approved by parliament and became law on July 20, 2019. The 2019 Consumer Protection Act includes new provisions regarding class-action lawsuits, celebrity endorsements, e-commerce, product liability, and unfit contracts.²⁵

Any audio or video representation, endorsement, or pronouncement made using light, sound, smoke, gas, print, electronic media, the internet, or a website is considered an

“advertisement” under Section 2(1) of the Consumer Protection Act of 2019. It also includes any notice, circular, label, wrapper, invoice, or another document.

The IPC 420 or Contract Act’s definition of fraud and misrepresentation in an advertisement is interpreted more broadly. There are legal options for bringing charges against misleading advertisements.²⁶

The Consumer Protection Act of 2019 contains numerous provisions that provide consumers with numerous legal recourses against advertising fraud and misrepresentation. When purchasing a product, customers have certain options, which must be protected. When trying

Consumer Protection Act, 2019 (drishtiias.com)
https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1897389
https://lawcorner.in/false-or-misleading-advertisements-under-consumer-protection-act-

2019/#:~:text=An%20advertisement%20is%20termed%20to%20be%20misleading%20when,then%20such%20 statements%20are%20false%20and%20misleading%20ones.

to sell their products or services, manufacturers may at times use deceptive advertisements, which will eventually make it harder for customers to choose what to buy.^[20]

Consumers’ right to information is violated or harmed by misleading advertisements. Information regarding all of the products and services on the market must be accurate for customers to exercise their right to do so. Misleadingly disapproving of a competitor’s goods or services and making use of false references are examples of misleading behavior.

The Consumer Protection Act of 2019 contains a separate section that deals with misleading advertisements. This section specifies severe penalties, including imprisonment.^[21]

According to Section 21 of the Central Consumer Protection Authority, deceptive advertisers may be liable under product liability; Advertisements’ creators, as well as the endorsers of the particular misleading advertisement, are responsible and subject to punishment.

The Central Consumer Authority can impose fines and prohibit deceptive advertisements. A monetary fine of Rs. 100 is included in the severe punishment. 10 lakhs.

Consumers can also file complaints about fraudulent advertisements through online consumer redressal platforms.^[22]

2.4.Consumerism

“Consumerism” has been credited with the spread of industrial capitalism and the European industrial revolution, which were characterized by expanding production and large-scale economies, since the 18th century and beyond. As a direct result of the commercialization of goods and the entry of innovative manufacturers, products became more readily available in European society.^[23] As a result, consumption increased and purchasing habits were strengthened. They made their products appealing through a variety of business strategies, which led to an addiction to buying and consuming. Producers and manufacturers employed additional strategies to ensure the demand for addictive products. The result was a negative impact on customers. Consumption became a trend.³¹

Consumerism is an organized and collective movement led by citizens and the state to protect consumer rights in comparison to producer rights and increase consumer power. A societal force is encouraging businesses to be more trustworthy and accountable to customers.^[24]

The first consumer organizations were established in Denmark in 1947, and the Consumer Council was established in Great Britain in 1955 by the government to give consumers a chance to express their opinions on issues that were reserved for producers and traders. However, actual consumerism began in the United States, where Ralph Nader and other advocates for consumer rights set the example.^[25]

Misleading advertisements violate or harm consumers’ right to information. Customers can only exercise their right to do so if the information they receive about any products and services on the market is accurate. Examples of misleading behaviour include using false references and disapproving of the goods or services of a competitor in a misleading way.

A separate section of the 2019 Consumer Protection Act addresses misleading advertisements. Serious penalties, including confinement, are outlined in this section.

Advertisers who deceive consumers may be held liable under product liability, as stated in the Central Consumer Protection Authority’s Section 21; both the endorsers of a particular misleading advertisement and the creators of the advertisement bear responsibility and are subject to punishment.

The Central Consumer Authority has the authority to levy fines and ban misleading advertisements. A fine in the amount of Rs. The severe punishment includes one hundred dollars. 10 lakhs.

Through online consumer redressal platforms, customers can also complain about fraudulent advertisements.^[26]

2.4.1. Consumerism in India

Consumerism is a social force that organizes consumer pressure on businesses to safeguard consumer interests in the marketplace. A consumer’s protest against unfair business practices and injustices is known as consumerism.

Misbranding, unsafe products, planned obsolescence, adulteration, fictitious pricing, price collusion, deceptive packaging, false and misleading advertisements, defective warranties, hoarding, profiteering, black marketing, short weights and measures, and other unfair marketing practices are among its goals.^[27]

To combat unfair marketing practices and ensure consumer protection, consumer organizations could offer coordinated efforts. In most cases, the seller holds the balance of power in the market. Society’s attempt to correct this imbalance in the exchanges between sellers and buyers is known as consumerism.³⁶

3. Chapter-3 Role of Indian Judicial System in ensuring Consumer Protection and Advertising Ethics.

3.1.Consumer Rights as per Indian Constitution

The entire Indian legal system is based on the Constitution of India. This implies that every law or legislation enacted in India will conform to the spirit of the Constitution and contribute in some way to the achievement of the principles and goals outlined in the Indian Constitution’s preamble.^[28]

A constitutional mandate on consumer protection is required to study consumer protection law within the context of the constitution. Now, one might wonder if there were any articles discussing the idea of consumer protection. Yes is the response to this question. The Preamble of the Constitution, Fundamental Rights, and Directive Principles of State Policy (DPSP) all resonate with the idea of consumer justice, even though it is not explicitly stated anywhere in the Constitution.

Let us investigate consumer protection law within the context of the Indian Constitution.

3.1.1. Preamble

Preserving and advancing social, economic, and political justice are emphasized in the Preamble. If justice were a tree, consumer justice would be one of its branches, for a better understanding. The State ought to guarantee both social and economic justice for its citizens, and consumer justice is composed of and essential to both.^[29] The goal of the state should be to make sure that the customer gets the right amount and quality of the goods for what they want to buy. In addition, consumer justice entails responding to complaints from customers, providing appropriate remedies, and providing consumers with a variety of steps and measures to protect them from the various instances of abuse, evil practices, and exploitation by market players that ultimately harm consumers.^[30]

To achieve a significant degree of economic equality in any market, every consumer in a nation needs legal protection, and the idea of social justice serves as a cover because consumers currently have a weaker bargaining position than manufacturers, traders, sellers, and distributors. A subfield of economic justice known as consumer justice seeks to establish an “economic democracy” and a “welfare state” in this manner.^[31]

In addition, the 42nd Amendment added the term “socialist” to describe a form of government in which the state has control over essential industries and encourages private industries to play a positive and constructive role in reducing poverty and income disparity and giving working people a decent standard of living. Consumers are protected from producers’ unfair trade practices by this socialist democracy concept.

3.1.2. Article 19 of Indian Constitution

When we look at how consumer rights are put into practice, the right to information about a product’s quantity, quality, potency, standard, purity, and price is very important.

Additionally, according to John F. Kennedy, every consumer has the fundamental right to be informed.^[32] On the other hand, the right to know, as well as the right to receive and impart knowledge, are integral components of the freedom of speech and expression guaranteed by Article 19(1) (a) of the Indian Constitution. Additionally, the right to obtain and access information is a fundamental right, as the Supreme Court has stated numerous times.

In the case Tata Press Limited v. Mahanagar Telephone-Nigam Limited and Ors. The

Supreme Court explicitly acknowledged the freedom to access information about goods and services from print media advertisements. 1995).^[33] Justice Kuldeep Singh, a judge on the Supreme Court, made the following observations regarding this case:

“Commercial speech” is a right of the general public. Freedom of speech and expression is protected by Article 19(1) (a), as are an individual’s rights to listen, read, and receive that speech. The information disseminated through advertisements must serve as a guide for the fulfilment of a citizen’s financial needs. The speech’s recipient as well as the speaker are eligible for Article 19(1) (a) protection. It’s possible that the person hearing the “commercial speech” is more interested in the advertisement than the businessman who is behind the publication. Advertising a life-saving drug may be more important to the general public than to the advertiser, who may be motivated solely by commercial considerations.^[34]

Based on the preceding observation, we can determine that the Supreme Court affirms the significance of consumer access to advertisement-based information about goods or services and its connection to Article 19’s fundamental right. As a result, Article 19 will guarantee that every customer will receive information about the particulars of any products or services they purchase.

3.1.3. Article 21 of Indian Constitution

“No person shall be deprived of his life or personal liberty in our country except by a procedure established by law,” states Article 21 of India’s Constitution.^[35] Both Article 19 and Article 21, which were expanded by several judicial decisions, are connected to the right to be informed. The proprietors of Indian Express Newspapers, Bombay Pvt. v. Reliance Petrochemicals Ltd.^[36] One of these assertions was made by the Supreme Court. Ltd. (1988), which stated that the general public has the right to be informed for them to contribute to the industrial expansion of the economy. According to Article 21 of the Indian Constitution, the right to know is one of several constitutionally guaranteed rights to which all citizens are entitled. In addition, the Supreme Court stated in this case that the aforementioned right has reached a new level of seriousness and depth, requiring greater accountability from those who provide information.

As a result, by incorporating it into Article 21 of the Indian Constitution, the aforementioned Article has given consumers a consumer right—the right to know.

3.1.4. Article 32 and 226 of Indian Constitution

The authority to issue writs to enforce fundamental rights are granted to the Supreme Court by Article 32 of the Indian Constitution. This article provides peace of mind to everyone by enabling individuals to petition the Supreme Court of India to safeguard and enforce their fundamental rights, particularly in instances of their violation. However, the High Court is authorized to issue writs regarding any fundamental rights issued by Article 226 of the Constitution.^[37]

Because the Supreme Court of India frequently weakened the concept of judicial discretion and permitted public-spirited individuals or groups to enforce the rights of disadvantaged and backward sections of society, Articles 32 and 226 of the Indian Constitution are also essential to consumer protection. Additionally, the consumer has the right to approach either the Supreme Court or the High Court in the event of a violation of the “right to be informed,” which is an essential component of Articles 19 and 21.^[38]

3.1.5. Article 38 and 39 of Indian Constitution

Article 38(1) of the Indian Constitution states, “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic, and political, shall inform all the institutions of the national life.” Even though it cannot be enforced in court, the Article obligates the State to eliminate any disparities in the country’s status, facilities, and opportunities. A customer who is also a citizen of the country is entitled to social justice, as stated in this article.^[39]

The Constitution’s Articles 38 and 39 also discuss “distributive justice.” It is important to note that the idea of distributive justice entails, among other things, the elimination of economic injustices and inequalities caused by deals and transactions involving people from different social classes.

In addition, the aforementioned articles stipulate that the state must shape its policies to ensure that citizens have equitable ownership of and control over their economic assets to reduce wealth concentration and enhance public welfare. As a result, large corporations and monopolies must protect consumers from unfair and monopolistic business practices.

According to Article 39(a), both men and women have the right to a sufficient means of subsistence. The article mandates that the state provide free legal aid to ensure that no citizen is denied justice due to financial or other obstacles. We can also interpret the phrase “any citizen because of economic or other disability” from a consumer’s perspective. Some customers are unable to assert their legal rights because they are poor, ignorant, or feel powerless. The State is required by Article 39 of the Constitution to provide low-income clients with free legal representation.^[40]

Under the State’s implementation of Article 39, a consumer has the right to approach the court for the enforcement of their rights despite financial incapacity.

3.1.6. Article 47 of Indian Constitution

The state is obligated by Article 47 of the Indian Constitution to improve public health, raise citizens’ standard of living, and enhance their nutrition. Article 47 is governed by the Directive Principle of State Policy, while Articles 21 and 32 are governed by fundamental rights.^[41] As a result, it is expected of the state to ensure that consumers’ health is further protected by providing products that are safe and suitable for consumption. Consequently, the state must effectively monitor the market for contaminated food products and other supplies that threaten public health and safety.^[42]

Consumer protection is further bolstered by these and other Constitutional provisions that grant citizens broad authority and consumer power.^[43]

3.2. Consumer Rights as per Consumer Protection Act

The Consumer Protection Act was enacted by the Indian Parliament on December 24, 1986, and was celebrated as National Consumers Day in India. It was based on the abovementioned eight-fold path for consumerism, i.e., the four basic consumer rights granted by John F. Kennedy and the additional four rights granted by UN Guidelines. However, it should be noted that the Consumer Protection Act of 1986 has been completely repealed by Section 107 of the new Consumer Protection Act of 2019.^[44]

The Consumer Protection Act was enacted in India in 1986 right after the United Nations consumer guidelines were approved in April 1985. After the 1930 Sales of Goods Act, this is the next significant consumer protection measure that ensures the protection of consumer interests and significantly increases consumer power. It is considered to be one of the world’s most remarkable pieces of consumer protection legislation.^[45] Customers are granted the following six rights by this Act:

Consumer Councils are permitted to concentrate on the aforementioned consumer rights under Section 6 of the Consumer Protection Act of 1986. The same thing was moved to definition clauses and added, specifically to Section 2(9) of the 2019 Consumer Protection Act. The Consumer Protection Act, a statutory statute, is to thank for the first time consumer rights are recognized as legal rights.^[46]

3.3. Law And Act Governing Advertisement in India

India’s advertising industry has undergone significant change. From Doordarshan and Prasar Bharti’s advertising methods to today’s television channels and media, however, the government was forced to enact several laws to restrict such advertisements due to rising misuse, including the promotion of illegal drugs and alcohol. The following laws are in charge of regulating deceptive advertising.^[47]

3.3.1. Consumer Protection Act ,1986 and Advertising

The right to information regarding quality, quantity, potency, and purity, among other factors, as a safeguard against unfair trade and practice is discussed in Section 6 of this Act. Nevertheless, the definition of an unfair trade practice found in Section 2(r) of the Act encompasses both false advertising and false allurement.^[48]

3.3.2. Cable Television Regulations Act,1995,Cable Television Amendment Act ,2006

The act stipulates in Section 6 that no advertisement will be transmitted via cable service unless it complies with the advertisement code. Rule 7 makes sure that the advertising code doesn’t hurt people’s morals, decency, or religious beliefs.^[49]

3.3.3. The Indian Penal Code And Criminality Of Advertisement

The Indian Penal Code makes advertising related to terrorism, hiring contract killers, inciting violence, or the crime legal and punishable.^[50]

3.4. Guidelines by IAE

Guideline 1: Publications, news, advertising, and marketing interactions all serve the public good by emphasizing truth and high moral standards. According to research, consumers are highly motivated by legitimate and ethical advertising. Professionals should also improve their advertising ethics to build and maintain customer trust, even though the industry has long been focused on the highest expectations of truth and precision.
Guideline 2: All marketing and advertising professionals agree to uphold the highest standards of personal ethics when creating and disseminating company information to customers. The primary objective of IAE is to educate experts in the field about the significance of ethical and honest advertising. The goal is to teach them to consistently demonstrate polished skills.
Guideline 3: Advertisers should be able to distinguish advertising, corporate interactions, and advertising from content and entertainment in news articles, both online and offline. Customers are becoming increasingly deceived and treated dishonestly as we continue to blur the distinction between business correspondence and publication content. The industry must make an effort to clearly distinguish paid advertising from genuine news to avoid customer confusion and scepticism.^[51]
Guideline 4: In light of a legitimate concern for total honesty and straightforwardness, advertisers should disclose every material condition, such as payment or receipt of a free item, influencing support in social and traditional channels, as well as the character of endorsers. The believability of substance is questioned by the popularity of online networking and verbal marketing. Advertisers must be clear about whether bloggers communicate their conclusions or if a brand is paying them. In addition, there must be complete honesty regarding the veracity of comments made on Facebook, Twitter, and other online life platforms.⁶¹
Guideline 5: Advertisers should treat customers fairly based on the target audience for promotions and the image of the product or service that is made public. When advertising to children and other helpless groups, extra care needs to be taken to avoid misleading or abusing them. Advertisers should also use caution based on the idea of the product or service, especially when it comes to alcohol and drugs that have been approved by a doctor.
Guideline 6: Advertisers should never compromise customers’ privacy in marketing communications, and they should make it easy for customers to decide whether or not to give their information. Consumers worry about their safety as advertisers develop increasingly advanced methods for online social focusing. Marketing and media exchange organizations are pushing for online self-administrative activity to give customers more control over the collection and use of web-based review information in response to customer concerns and government alerts.
Guideline 7: Advertisers should adhere to advertising laws from the federal, state, and local governments, as well as assist industry self-administration projects for advertising practices. Advertisers can seek moral guidance from a variety of administrative bodies, including the Food and Drug Administration, the Better Business Bureau, and the Federal Trade Commission. The National Advertising Review Council (NARC), which promotes both adult and child advertising, is another excellent self-administrative program developed by the advertising industry.^[52]
Guideline 8: Advertisers and their organizations, as well as online and offline media, should secretly investigate potential moral issues, and members of the group responsible for promotions should be permitted to voice their ethical concerns. Saving the work to discuss and determine moral predicaments is critical to practicing the most imperative moral models. The business must maintain an open atmosphere in which experts are free to voice their opinions, both positive and negative. What’s best for the customer should be the primary consideration in all advertising, which will lead to the best strategy.^[53]

3.5. Guidelines by ASCI

The Advertising Standards Council of India (ASCI), a body that includes media, advertisers, and ad agencies, has developed a comprehensive and elaborated code on the subject. The four chapters of the Code of the Advertising Standards Council of India are listed below.

Chapter 1: Honesty is required for promotions. Commercials must not twist facts or mislead customers using suggestions or oversights, and promotions will not be allowed to contain any case so overstated as to cause grave dissatisfaction in the psyches of consumers. All portrayals, cases, and examinations associated with issues of unbiasedly ascertainable certainty should be fit for substantiation, and they are required to deliver such substantiation as and when required created by ASCI.⁶⁴
Chapter 2: Nothing profane, obscene, or terrible to cause grave or far-reaching offense will be included in advertisements to ensure that they do not violate generally accepted guidelines for open fairness.
Chapter 3: No commercials will be allowed that, in general, encourage wrongdoing, issue, cruelty, or prejudice, divide any race, position, shade, ideology, or nationality, or negatively influence positive relations with a distant state. Promotions sent to children will not include anything that could harm their physical, mental, or moral well-being or abuse their powerlessness. Advertisements should not include anything that is against the law.
Chapter 4: Advertisements must not use the name or initials of some other company, organization, or establishment, nor take an image of another company and its products. Advertisements must not be so similar to other promotions when all is said and done design, duplicate, trademarks, visual introduction, music, or audio cues as to probably misdirect or befuddle consumers. Notices containing correlations with other makers or providers or with the products, including those where a competitor is named, are admissible in light of a legitimate concern for the.^[54]

3.6. Self-Regulation and Consumer Protection Laws

Self-Regulation

Despite the ASCI’s sanctions and regulations, as well as some important regulations, there is still a legal loophole that leads these advertisers to believe they can take things for granted. Unethical advertising is still a concern. As a result, advertising agencies and businesses must exercise strict self-regulation in order to protect a consumer’s rights.^[55]

Self-regulation by advertisers and agencies

Self-regulation begins with communication between the customer and the agency when creative ideas are generated and considered. The majority of businesses must adhere to specific guidelines, principles, and advertising strategies. Sponsors carefully examine all messages to ensure that they align with the company’s desired image because they believe that their promotions influence the company.^[56]

Self-Regulation by Trade Associations

Numerous industries have also developed self-administrative initiatives, which are especially relevant to industries whose public relations are prone to discussion, such as those that promote drugs, alcohol, and other products for children. Part organizations are expected to adhere to the promoting rules or codes developed by numerous industry associations and exchanges.^[57]

Self-Regulation by the Media

Another significant mechanism for self-regulation in the advertising industry is the media. Except for political ads, the majority of media maintain some form of the advertising review process and may reject any they find objectionable.^[58]

To avoid these unethical practices, which are even followed by the top 1000 companies listed in Forbes magazine, there should also be self-regulation in the policies and bylaws of the companies themselves.^[59]

3.7. Case Laws

3.7.1. Landmark Judgements related to Advertisement

 Dabur India v. Colortek Meghalaya Pvt.Ltd

In this case the Supreme Court had said that an advertisement is protected under Article 19 (1)

(a) of the Constitution as long as it is not false, misleading, or deceptive

Pepsi Co. Inc v. Hindustan Coco Cola Ltd

It was held by the court that an advertisement can glorify the product keeping in mind that it does not disparage a rival product

Reckitt and Colman of India Ltd. v. M.P Ramachandran

In this case it was held that an advertisement can declare its products the best (even if untrue) and also compare its advantages to the goods of others as long as it does not disparage the product of its rivals. Otherwise, it will amount to slander.^[60]

3.7.2. Case Laws Related to Misleading Advertisement

Francis Vadakkan v. The Proprietor, A-one Medicals

Facts: The plaintiff in this instance had purchased a hair growth cream after seeing an advertisement for it. Anoop Menon, an actor in Malayalam films, gave the advertisement his approval. The plaintiff was persuaded to purchase the product because the advertisement promised hair growth in six weeks. After using the cream for seven weeks with no positive results, the plaintiff then filed a complaint against the defendant.

Judgement- The plaintiff in this instance had purchased a hair growth cream after seeing an advertisement for it. Anoop Menon, an actor in Malayalam films, gave the advertisement his approval. The plaintiff was persuaded to purchase the product because the advertisement promised hair growth in six weeks. After using the cream for seven weeks with no positive results, the plaintiff then filed a complaint against the defendant.^[61]

Horlicks limited v. Zydus Wellness Product Limited, 2020

Facts- The plaintiff sought a permanent restraining order against the defendant in this instance. The defendant had demonstrated in the advertisement that one cup of Complan contains the same amount of protein as two cups of Horlicks and that two cups of Horlicks are equivalent to one cup of Complan. The plaintiff argued that, even though the plaintiff and the defendant have different serving sizes, the cup size used in the advertisement was the same, resulting in customer confusion.

Judgement – The interim injunction was granted after the court ruled in the plaintiff’s favor. It is claimed that the advertisement was broadcast for only six seconds, leaving viewers with insufficient time to read the serving-size disclaimer. This only gives the viewers enough time to compare two cups of Horlicks to one cup of complaint, not enough time to read the disclaimer about the different serve sizes. As a result, the advertisement was deemed deceptive by the court.^[62]

Ajay Kumar Sharma v. Zomato Pvt. Ltd.

Facts- For this situation, Ajay Kumar Sharma requested food from an eatery through the Zomato application. In any case, he was not happy with the nature of the food conveyed to him. He then sought compensation for the subpar food that was delivered to him by filing a complaint against Zomato for inadequate service.

Judgment: The case was heard by the National Consumer Disputes Redressal Commission (NCDRC), which decided that Zomato cannot be held accountable for the restaurant’s food quality. The NCDRC stated that the restaurant was responsible for ensuring the quality of the food and that Zomato was only serving as a facilitator between the customer and the establishment.

In addition, the NCDRC stated that Zomato was only responsible for ensuring that the food was delivered on time and that the restaurant had the appropriate permits and licenses to carry on business. As a result, Zomato cannot be held liable for poor service or poor food quality.

The NCDRC also turned down the complainant’s claim for compensation because he didn’t show that the food that was delivered to him was of poor quality.^[63]

 Bata Indian Limited v. Pyare Lal & Co, Meerut City and Others

Facts: In India, there is a well-known footwear company called Bata India Limited. Under the Trade and Merchandise Marks Act of 1958, the business registered “Bata.” Without the company’s permission, Pyare Lal & Co., Meerut City, and others manufactured and sold shoes under “Bata.” Bata India Limited sued Pyare Lal & Co., Meerut City, and others for trademark infringement.

Judgment: Because they used the name “Bata,” which Bata India Limited had already registered, the Delhi High Court ruled that the defendants had violated Bata India Limited’s trademark. The court also decided that the defendant’s use of the name “Bata” was likely to mislead customers and could hurt the company’s reputation.

The defendants’ claim that Bata India Limited could not exclusively use the name “Bata” because it was widely used in the footwear industry was also rejected by the court. The court decided that the company’s long and consistent use of the name “Bata” had given it a distinctive character and reputation.

In addition to requiring the defendants to cease using the name “Bata immediately,” the court ordered the defendants to compensate Bata India Limited for the damage caused by the infringement.^[64]

 Colgate Palmolive(india) Ltd v. Hindustan Lever Ltd

Fact: A television commercial for the toothpaste brand “Close-Up” by Hindustan Lever Ltd. (HLL) directly compared the product to a competing toothpaste brand, “Colgate Dental Cream.” The business included two models, one utilizing Close-Up toothpaste and the other utilizing Colgate Dental Cream, with a voice-over that featured the predominance of Close-Up toothpaste over Colgate Dental Cream. The makers of Colgate Dental Cream, Colgate Palmolive (India) Ltd. (CPIL), filed a lawsuit against HLL, claiming that the commercial was deceptive and violated their trademark.

Judgement: In 1995, the Delhi High Court ruled that HLL’s comparative advertising was not deceptive and did not violate any trademarks. The court ruled that comparative advertising is legal as long as it doesn’t mislead customers or damage the reputation of the competitor’s product. The court also decided that the exclusive use of a descriptive term or common word, like “dental cream,” which is frequently used in the toothpaste industry, does not qualify for trademark protection.

The court also decided that the claims made in the commercial were supported by scientific evidence and that HLL’s advertisement did not harm Colgate Dental Cream’s reputation. The court also said that a trademark can be used in a comparison advertisement as long as it is not used in a way that makes people confused or misleads them.^[65]

Research Finding

The Consumer Protection Act of 2019 safeguards a variety of consumer rights, including the right to information and knowledge. Under the guise of freedom of speech and expression, it ensures that manufacturers do not misappropriate Article 19 of the Constitution by providing consumers with inaccurate and misleading information. In the past, manufacturers were asked to remove misleading advertisements, but there was no severe penalty or punishment. However, as a result of the amended law, the appropriate authority may penalize the endorser and even the manufacturer for providing false information without verifying it. Therefore, instances of unfair business practices will be reduced as a result of this stringent law.

Conclusion

Adverts and product marketers must adhere to advertising ethics in order to safeguard consumers’ rights and avoid misleading consumers. In the event of a violation of any advertising ethics, consumer rights come into play to protect a consumer’s rights; However, these laws ought to be strictly enforced to protect consumers’ rights, which are frequently violated by unethical practices like using children and adolescents as target groups, women as a sex symbol, deceptiveness or the falsity of a product, nudity or offensiveness, and many other unethical practices that are used to violate consumer rights today.

To effectively enforce stringent laws that censor all deceptive or false advertisements and to curb unethical practices, the COPRA Act of 1986 mandates consumer councils for the swift or quick resolution of cases.

Advertising firms and advertisers ought to try to implement some forms of self-regulation in their organizations as well, on ethical grounds, so that customers also trust their products and that consumer rights are protected. All advertising agencies should adhere to the stringent self-regulation practices of Forbes’ top 1000 companies.

To ensure that the rights of innocent consumers are not violated, all consumer protection laws must be stringent or the government must attempt to persuade advertising companies to adhere to certain standards or guidelines established by them or anyone else.

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