May 16,2024
The Supreme Court has declared that the the fundamental right to health encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies.
To protect this right, the Court directed that henceforth, before an advertisement is printed/aired/displayed, a Self declaration shall be submitted by the advertiser/advertising agency on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994.
The direction was passed by a bench comprising Justices Hima Kohli and Ahsanuddin Amanullah in the Patanjali case (Indian Medical Assocaition v. Union of India and others) on May 7. In the copy of the order uploaded today, the Court made certain pertinent observations regarding the customers’ rights.
It may be recalled that the case was filed by the IMA seeking regulation of the misleading medical advertisements published by Patanjali Ayurved Ltd. During the course of the case, the Court initiated contempt proceedings against Patanjali Ayurved, its founders Baba Ramdev and Acharya Balkrishna.
Advertisers and endorsers are equally responsible for issuing false and misleading advertisements
In the order dated May 7, the Court commented on the responsibility of celebrities and influences who endorse products in advertisements.
“We are of the firm view that advertisers/advertising agencies and endorsers are equally responsible for issuing false and misleading advertisements. Such endorsemehat are routinely made by public figures, influencers, celebrities etc. go a long way in promoting a product. It is imperative for them to act with a sense of responsibility when endorsing any product and take responsibility for the same, as reflected in Guideline No.8 of the Guidelines, 2022 that relates to advertisements that address/target or use children for various purposes and Guideline No.12 that lays down the duties of manufacturers, service providers, advertisers and advertising agencies to ensure that the trust of the consumer is not abused or exploited due to sheer lack of knowledge or inexperience. Guideline No.13 requires a due diligence to be undertaken for endorsement of advertisements and requires a person who endorses a product to have adequate information about, or experience with a specific good, product or service that is proposed to be endorsed and ensure that it must not be deceptive.”
The Court also noted that there is no robust mechanism available for the customer to lodge complaints for violation of Guidelines for Prevention of Misleading Advertisements and Endorsements of Misleading Advertisements, 2022 framed by the Ministry of Consumer Affairs.
“In view of the above and in the absence of any robust mechanism enacted in law to ensure that the obligations cast on the advertiser to adhere to stipulations in the Guidelines, 2022 in letter and spirit, 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 by manufacturers, service providers, advertisers and advertising agencies.
The Court directed that the Self-declaration shall be uploaded by the advertiser/advertising agency on the Broadcast Sewa Portal run under the aegis of the Ministry of Information and Broadcasting. As for the advertisements in the Press/Print Media/Internet, the Ministry is directed to create a dedicated portal within four weeks from May 7.
Immediately on the portal being activated, the advertisers shall upload a Self-declaration before any advertisement is issued in the Press/Print Media/Internet. Proof of uploading the Self-declaration shall be made available by the advertisers to the concerned broadcaster/printer/publisher/T.V. Channel/electronic media, as the case may be, for the records.
No advertisements shall be permitted to be run on the relevant channels and/or in the print media/internet without uploading the self- declaration as directed above. The above directions shall be treated as the law declared by this Court under Article 141 of the Constitution of India.
Source: Livelaw
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Excellent decision in a era when the inoscent people are targeted for misuse of false claims