ADVERTISING

Advertising is like electricity, which not

only illuminates but electrocutes. Its worth
to civilization depends upon how it is
used.

Advertising Laws: Laws that affect advertising in India

Consumer Protection Act
Monopolies and Restrictive Trade Practices Act, 1969
Drugs and Cosmetics Act
Trademarks Act
Cigarettes and Other Tobacco Products (Prohibition of Advertisement
and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003
Drugs Price Control Act,
Drugs and Magic Remedies (Objectionable Advertisements) Act,
Emblems and Names (Prevention of Improper Use) Act
Indecent Representation of Women (Prohibition) Act

 MRTP Section 36-A Unfair trade practise

falsely represents that the goods are of a particular standard,
quality, quantity, grade, composition, style or mode;
falsely represents that the services are of a particular standard,
quality or grade;
falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
represents that the goods or services have sponsorship, approval,
performance, characteristics, accessories, uses or benefits which
such goods or services do not have;
represents that the seller or the supplier has a sponsorship or
approval or affiliation which such seller or supplier does not have;
makes a false or misleading representation concerning the need
for, or the usefulness of, any goods or services

Consumer Protection Act

The MRTP Act 1969 was repealed, but Section 36A has
been adopted in section 2(1)(r) of the Consumer
Protection Act.

The Drugs and Magic Remedies (Objectionable

Advertisements) Act, 1954
Sec. 4 - Prohibition of misleading advertisements relating
to drugs
no person shall take any part in the publication of any
advertisement relating to a drug if the advertisement
contains any matter which(a)directly or indirectly
gives a false impression regarding the true character of
the drug; or
(b)makes a false claim for the drug; or
(c)is otherwise false or misleading in any material
particular.

ASCI
All 4 sections connected with advertising viz.:

Advertisers
Advertising Agencies
Media (owners of press, television, Radio etc.)
Related sectors (outdoor agencies, PR, market researchers, ad producers,
business schools etc.)

come together & agree to voluntarily comply with a set of guidelines or rules
ie the code to protect:
Consumer interest
Ensure fair play amongst competitors

Puffery
Puffery is where the advertiser seeks to draw the
consumers attention by making superlative claims
about his product which no reasonable person would
take literally
It is claims which cannot be proved or disproved eg: The
best bread in the world
Humorous and imaginative advertisements often use
this technique.

 a father reading a letter that was left behind by his son,

who has left the house. The son says that he has left his
house, as he wasnt given a 'Cadbury Perk'. He says he
has realized that he is not wanted in the family any
more.
Complaint was that while adults would understand the
humour in the ad, children who arent mature enough
and refused a chocolate may resort to some unwanted
act, as is seen in the ad. Kids do get very influenced
with what they see on television and other media.
ASCI decided humorous puffery

Comparative Ad
No specific legislation bans comparative advertisement
per se
Possesses Two elements Puffery and Denegration
Puffery is where the advertiser seeks to draw the
consumers attention by making superlative claims
about his product

Fundamental Law Governing Comparative

Advertisement
Trade Marks Act
Sec 29(8) A registered trade mark is infringed by any
advertising of the trade mark
if such advertising--(a) takes unfair advantage of and is contrary to honest
practices in
industrial or commercial matters or
(b) is detrimental to its distinctive character or
(c) is against the reputation of the trade mark.

Sec 30 Trademark Act

Nothing in section 29 shall be construed as preventing the use
of a
registered trade mark by any person for the purpose of
identifying goods or services as those of the proprietor
provided the use--(a) is in accordance with honest practices in industrial or
commercial
matters. and
(b) is not such as to take unfair advantage of or be
detrimental to the
distinctive character or repute of the trade mark.

Sec.103 - Penalty for applying false

trade marks, trade descriptions, etc.

Any person who

(a)falsifies any trade mark; or

(b)falsely applies to goods or services any trade mark;
or
(c)makes, disposes of, or has in his possession, any die,
block, machine, plate or other instrument for the
purpose of falsifying or of being used for falsifying, a

 Calcutta
High
Court
has
stayed
HULs
RIN
ADVERTISEMENT and has said that the ad is a clear case
of disparagement. An injunction has been granted on
the grounds that the voice-over in the ad spoke of Tide
whereas the ad showed Tide Naturals and that there
were inherent defects in the affidavits submitted by HUL
to support its claim of superior whiteness

Comparative advertisement can be best understood from the four cases between Reckitt
Benkiser (India) Ltd. v. Hindustan Unilever Ltd

1.

The first advertisement portrays Dettol Kitchen Gel killing 100X more germs
than the leading dishwash of the day

 Vim was the leading dish wash with 80 % market share

the Court held that S.30, Trademarks Act permitted
comparative advertisements to the extent that they were
the puffing up of the traders own product. However, a
serious comparative advertisement that lowered the
reputation of the other goods would be hit by S.30 as it
would be unfair or detrimental to the rival traders
trademark. The test was whether a reasonable person
would understand the comparative advertisement to be
making a serious claim disparaging the rival traders
product.

The

Court held that an unfair

comparison
is
made
between two products that
were not meant for the same
purpose. Dettol
is an
antiseptic that is supposed
to be used as a supplement
to soap/ bathing gel while
Lifebuoy
is
used
predominantly for cleansing.
Therefore, the Court held
that disparaging Dettol after
showing it in an improper
context and dilution was
unfair and hit by S.30.
Therefore, an injunction was
issued
against
the
advertisement

 Advertisement, did not directly refer to Dettol. Instead it

showed a bottle with an amber coloured liquid which
was termed as an antiseptic. This, the Court said would
be understood by reasonable persons to refer to Dettol.
Moreover, the Court held that the advertisements
reference to the dangerous nature of antiseptics when
consumed had a real possibility of deterring consumers
from purchasing the Dettol Kitchen Gel. The Court ruled
that this was a serious comparative advertisement that
declared one product to be safer and consequently,
more superior than the other. This resulted in
denigration of that product which lowered the
reputation of the product. The advertisement was
therefore held to be detrimental and violative of S.30.

Test of a misleading advertisement - in a

comparative ad
In relation to thetest of a misleading
advertisementthe court holds:
two essential elements must be satisfied.
First, misleading advertising must deceive the persons
to whom it is addressed or at least, must have the
potential to deceive them.
Secondly, as a consequence of its deceptive nature,
misleading advertising must be likely to affect the
economic behaviour of the public to whom it is
addressed, or harm a competitor of the advertiser.

Surrogate Advertising/Brand
Extension
Soda, Mineral Water, Music CD, Mega Cricket team
clubs, Friends clubs are shown in advertisement.
Eg: Bagpiper Club Soda. Intention behind such
advertisement is to popularize the whisky, liquor
products.
Deeply under-regulated in India courts have more often
taken the side of the advertisers.

WILLS were the

original sponsors of
Indian cricket
team. A PIL was
filed against the
sponsorship. ITC
withdrew the
sponsorship

Ex-Union Health Minister Mr .

Anbumani Ramadoss had
challenged the name of the
Bangalore Indian Premier
League (IPL) cricket team,
Royal Challengers, as a
form of surrogate advertising
for liquor brand Royal
Challenge. But the Supreme
Court of India has pointed
out that the team was not
named Royal Challenge the
liquor brand Only those who
drink can be attracted

 Some regulations do exist for example Indian Broadcasting Federation

has ruled that if liquor companies promote any juice, mineral water or
soda, these should be shown in a proper manner and not as trimmings
to liquor advertisement.
ASCI has very specific regulation for surrogate advertising as per ASCI
code
Brand Extension Product or Service should be registered with
appropriate Government authority eg. CENVAT /VAT/FDA/FSSAI/TM
etc.,

2a. In store availability of the product must be at least 10% of the

leading brand in category the product competes asmeasured in the
Metro Cities where the product is advertised.
2b. Sales Turnover of the product or service should exceed Rs.5 cr per
annum nationally or Rs 1 cr per annum perstate where distribution has
been established.

Fine Print Advertising

Dabur Chyawanprash on their packaging claims that it provides "3 times more immunity". The fine print says that
the claim of "3 times more immunity" is based on "preclinical study on NK cells". It also claims that it is
scientifically proven. 1. Preclinical studies means that it has not been tested on humans yet. Any drug or compound
cannot claim to bring said benefits unless Phase - III trials are done. If it works for rats then it doesn't mean that it
works for humans too.

Hence asked to discard 3 times more immunity claim.

Discrimination

Discrimination against female child, hence asked to

withdraw the advertisement

Traffic Rules
https://www.youtube.com/watch?v=m0ANuZBlcMI

 Riding bike without helmet. Advertisement had to be

withdrawn.

Disrespecting National Flag; flag

code of india

 Use of Flag for commercial purpose and writing on the

flag

Celebrity liability

Section 24 - Food Safety and Standards Act,

Restrictions of advertisement and prohibition as to unfair trade practices.(1)No advertisement shall be made of any food which is misleading or deceiving or
contravenes the provisions of this Act, the rules and regulations made thereunder.
(2) No person shall engage himself in any unfair trade practice for purpose of
promoting the sale, supply, use and consumption of articles of food or adopt any
unfair or deceptive practice including the practice of making any statement, whether
orally or in writing or by visible representation which(a) falsely represents that the foods are of a particular standard, quality, quantity or
grade-composition;
(b) makes a false or misleading representation concerning the need for, or the
usefulness;
(c) gives to the public any guarantee of the efficacy that is not based on an adequate
or scientific justification thereof: Provided that where a defence is raised to the effect
that such guarantee is based on adequate or scientific justification, the burden of
proof of such defence shall lie on the person raising such defence.

Section 53
Food Safety and Standards Act, 2006 (FSSA) expressly
provides that
"any person who is party to an advertisement" that falsely
describes any food, or is likely to mislead as to the nature
or quality of the food can be held liable for a penalty of up
to Rs 10 lakh.

 Indian Penal Code under

1. Sections 270 (malignant act likely to spread infection
of disease dangerous to life),
2. 273 (sale of noxious food or drink), and
3. 420 (cheating and dishonesty)

FTC - 2009 Guidelines

[t]he celebrity has decided to earn money by
providing an endorsement. With that opportunity
comes the responsibility for the celebrity or his or
her legal representative to ensure in advance that
the celebrity does not say something that does
not reflect honest opinions, findings, beliefs, or
experience.

FTC
Dot com disclosure.
"Required disclosures must be clear and conspicuous."
./ad/
Celebrities have a duty to disclose their relationships with advertisers while
endorsing outside the context of traditional ads