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No More Misleading Ads: Centre Mandates Self-Declaration Certificate For Advertising Agencies

June 24,2024

An advertisement is considered misleading when it misleads people from reality and influences their behaviour toward purchasing a product or service from the market. Recently, the Supreme Court took a step to stop misleading ads by advertising agencies. As per the Indian Medical Associations & Anr. Vs. Union of India & Ors. 2022, Advertising companies must provide a self-declaratory certificate to the competent authority before any content (Advertisement) is displayed, as per the Supreme Court’s directive.

Now, advertising agencies and media have to file a self-advertising form to ensure that the content is not misleading in any way.

On June 3, 2024, the Ministry of Information and Broadcasting, in compliance with a Supreme Court directive, announced new regulations requiring a self-declaration certificate (SDC) to be submitted before the publication or broadcast of any content. This mandate, effective from June 18, 2024, stipulates that all advertising agencies must file their SDCs via the Broadcast Seva Portal managed by the Ministry. Meant for print and digital media, the SDCs are to be give in to through the Press Council of India’s portal.

Ads play a pivotal role in establishing a brand in the market. However, they become problematic when they contain false information and manipulate customers’ emotions by providing misleading information about the brand. An evaluation done through the Advertising Standards Council of India in the year 2023-24 on 8,299 advertisements found that around 81% fell into the category of misleading advertisements, with 94% of the infringements identified through proactive monitoring.

Online platforms also play a crucial role in spreading misleading advertisements because a large population is connected to social media and consumes content through fake news articles or social media posts. Influencers and celebrities in India also spread misleading advertisements.

A survey conducted by the community media social media platform LocalCircles found that during the pandemic, an average of 70% of Indians encountered misleading advertisements through social media or various online sources. After watching these advertisements, they often purchase the products or services of the particular brand being advertised.

Patanjali claimed during the COVID-19 pandemic that its medicine “Coronil” was sufficient to cure COVID-19 and was certified and approved by the World Health Organization. However, later the WHO denied this claim and criticized it. Following this, while attacking the medical pharma industry, Patanjali made claims about several diseases, asserting that its medicines were sufficient, well-suited, and could cure them completely.

Patanjali’s dispute began in 2022, when the company ran a poster named “Misconceptions Spread by Allopathy: Save Yourself and the Country from Misconceptions Spread through the Pharma and Medical Industry.” In this advertisement, Patanjali claimed that its medicines are scientifically proven to cure various diseases and asserted that allopathic medicine has severe side effects. Following this event, the Indian Medical Association sent a 1000 crore defamation notice under Section 499 of IPC (Indian Penal Code 1860) in the month of May 2022.

After this, the Indian Medical Association filed a petition before the Supreme Court about the disparaging advertisement in August 2022. In the first hearing in November 2023, the Supreme Court warned and threatened Patanjali against using terms like “permanent relief” in the Drugs and Magic Remedies Act, 1954, to sell its products.

Earlier, Patanjali gave assurance that they would not publish such misleading advertisements in the future. This undertaking was recorded by the court in its order. However, the company continues to publish misleading advertisements related to medicinal cures.

Upon prima facie observation that Patanjali has infringed on the undertaking, the court issued a contempt of court notice for violation of court order and asked them to file a reply within two weeks. The court also cautioned them against making any statements adverse to any system of medicine in any form.

After the company failed to respond to the contempt of court notice, the Supreme Court issued a summons on March 19, requiring Baba Ramdev and Balkrishna to appear personally before the court.

On March 21, Balkrishna, the company’s managing director, issued an unequivocal apology.

The supreme court warned Baba Ramdev and Balkrishna about disobeying the law and scolded them for their “absolute defiance” in failing to file a suitable affidavit in response to the deceptive ads in a follow-up hearing on April 2. The Supreme Court rejected their apologies and directed them to provide an affidavit within a week.

On April 15, the apex court suspended the manufacturing licenses of 14 products of Patanjali Ayurvedic Ltd. and Divya Pharmacy under Rule 159(1) of the Drugs and Cosmetics Rules, 1954, with immediate effect, and ordered the Uttarakhand State Licensing Authority to file an affidavit by April 29.

The apex court judgment on 7 May 2024, in this case is significant since it directed the Centre to notify all advertising companies to give in a self-declaration certificate prior to broadcast any type of advertisement online or in print. Additionally, celebrities and influencers are equally liable for promoting and endorsing misleading advertisements online.

This case played a pivotal role in strengthening current regulations and striking against various giant companies that mislead consumers in the name of authenticity. This case opened the door for legislation to frame new rules and guidelines to tackle real-world problems and protect consumers’ rights

Source: Livelaw

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