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Consumer rights Advertisers
had better beware. Corrective advertisements are finally here to stay
and those that issue false or misleading or even surrogate
advertisements can no longer escape the consequences of their actions.
They may well be forced to come up with fresh advertisements to
correct the erroneous impression created by the earlier messages. To
discourage advertisers from issuing false and misleading
advertisements, the Consumer Protection Act provides for issuance of
corrective advertisements. That is, in addition to claiming damages
for any loss or injury caused on account of such advertisements,
consumers can also ask the consumer court to issue appropriate
directions to the erring advertiser to ensure that fresh messages are
issued to neutralise the effect of the misleading
advertisements. Unfortunately, even though consumer courts in many
cases have held advertisers guilty of issuing false or misleading
advertisements and thereby committing an unfair trade practice, the
provision for corrective advertisement has barely been effectively
used. All this, however, has changed with the order of the Maharashtra
State Consumer Disputes Redressal Commission directing United
Breweries to issue corrective advertisements to neutralise the effects
of their earlier surrogate advertisements promoting liquor
brands. And now by upholding this and saying that the State
Commission’s direction to United Breweries to issue corrective
advertisements for a week was in fact not appropriately commensurate
with the harmful influence of the surrogate advertisements issued
earlier, the apex consumer court has finally ensured that the CP Act
is enforced in letter and in spirit — in so far as advertisements
are concerned. The order of the National Consumer Disputes Redressal
Commission should therefore act as a warning to all advertisers, while
at the same time signalling to all lower consumer courts in the
country to tackle false, misleading and surrogate advertisements the
way they should be. The apex court’s order has its origin in a
complaint filed by Mumbai-based consumer group Mumbai Grahak Panchayat
against surrogate liquor advertisements on Western Railway coaches.
Following this, the Maharashtra State Commission directed United
Breweries to issue corrective advertisements for one week and the
Railways to display them prominently on coaches of Western Railway.
The corrective advertisements were to say: "Keep liquor away
from young generation" and "India’s number 1-only natural
fruit drink" and "Limbu paani, nariyal paani, yehi hai
apna alag andaz". While examining the appeal filed by United
Breweries against this, the National Commission referred to the fact that the Advertising
Standards Council of India (ASCI) had also asked for the withdrawal of
two of these advertisements. These advertisements appeared to be
surrogate advertisements for an alcohol product brand and hence
contravened Chapter 1.4 of the ASCI’s code. The ASCI had commented
that the mention of the word ‘soda’ in an inconspicuous manner,
while boldly stating the brand name "Bagpiper" with the
baseline, "India’s largest, World’s no 3" was misleading
by its ambiguity and hence contravened the code. Criticising the
advertisements, the apex consumer court observed that the
advertisement had referred to London Pilsner soda, and proclaimed
"ab cold drink out". Enquiries by the complainants
had, however, shown that the company had come out with 250 ml bottle
of London Pilsner beer and there was no soda available in the market.
Observed the commission: "This was an attempt to induce the young
generation to switch over from cold drinks to beer. There was a third
advertisement of Derby Special soda. On inquiry, it was found that
there was no Derby Special soda anywhere in the market and Derby
Special whisky was available with wine dealers. These attempts were
highly objectionable, deplorable and also patently
illegal". Pointing out that the state commission had not asked
for corrective advertisements on TV nor had it asked for such
advertisements on railway coaches for three months, but only for a
week, the apex consumer court said what has been asked for, in terms
of corrective advertisements, was not appropriately commensurate with
the harmful effect of the earlier advertisement. In this entire
episode, the Railways come out in very poor light. As the state
commission pointed out, the advertisements contravened the Railways
own guidelines for commercial advertising, which prohibited not just
liquor advertisements but also surrogate advertisements. Yet, when the
consumer group first approached the Railways to remove the
advertisements, the response of the Railways was certainly not that of
a law-abiding, responsible, public sector undertaking. Apparently, the
Railways refused to discontinue the advertisement on the ground that
the agreement had already been executed (for carrying the ad). This
forced Mumbai Grahak Panchayat to file the case before the State
Commission. (United Breweries Limited vs Mumbai Grahak Panchayat, FA
no 491 of 2005).
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