Consumer rights
A warning for advertisers
Pushpa Girimaji

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).