Misleading advertisements in the food industry and

Jus Corpus Law Journal Open Access Law Journal – Copyright © 2021 – ISSN 2582-7820 Editor-in-Chief – Prof. (Dr.) Rhishikesh Dave; Publisher – Ayush Pandey This is an Open Access article distributed under the terms of the Creative Commons Attribution- Non-Commercial-Share Alike 4.0 International (CC-BY-NC-SA 4.0) License, which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Pravertna Sulakshyaa

aRajiv Gandhi National University of Law, Punjab, India

__________________________________

consumer protection guidelines. Numerous advertising efforts convey a message about food products via exaggerated promises,

Keywords: advertisements, food industry, consumer protection.

Consumption of a person’s products and services begins right from birth and ends with a

coffin, again with services available to organise a funeral. Consumption is thus an inevitable

part of life, involving a wide array of products, ranging from short to long term usage, and

SULAKSHYA: MISLEADING ADVERTISEMENTS IN THE FOOD INDUSTRY AND THE CONSUMER….

brings the person to the centre stage of business and marketing. Had it not been a consumer,

no business industry would ever exist— a consumer is thus a king! Thus, every citizen must

understand one’s crucial role as a consumer and be aware of the rights and legal provisions to

avoid being unjustly exploited by unfair trade practices.

Buying any product or hiring a service is not a necessary condition to approach a consumer

commission. Buying goods may still not make a person a consumer, and in such a case, civil

courts become the appropriate commissions to file a case.

In India, section 2(7) of the Consumer Protection Act, 2019 defines a consumer as any person1

who buys a product or hires a service for consideration2 but not for any commercial purpose.

A product can be any article or goods, or substance as defined under section 2(33) of the Act.

However, a person qualifies as a consumer only if the product purchased is for personal use

and not for commercial or resale purposes. The payment can be made when purchasing or

partly paid/partly promised or arranged for any deferred payment system.

If a person qualifies the requirements of the provisions mentioned above, one is eligible for

redressal before a consumer commission with eligible jurisdiction.

In India, the Consumer Protection Act, 2019 is dedicated to providing better protection of

consumers’ interests and settlement of consumer disputes in a convenient, inexpensive, and

speedy manner. It seeks to protect the rights against:

 Goods and services which may be hazardous to life and property3

 Being informed about the quality, purity, quantity, potency, standard, and price of the

goods or services to protect against unfair trade practices4

1 Consumer Protection Act 2019, § 2(31) 2 Indian Contract Act 1872, § 2(d) 3 Consumer (n 1), § 2(6)(v) 4 Consumer (n 1), § 2(47)

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 Being heard and receiving due consideration at appropriate forums5

 Consumer education and awareness6

With the ever-increasing demand for products in the market and busy schedules in the lives of

consumers, it is easy to imagine sellers luring the consumers for their profits and the

consumers falling into the trap of being betrayed by deceptive goods and services. When a

product being sold is misrepresented about its characteristics through unfair methods, the act

of doing so is termed as unfair trade practice (UTPs).

In the Consumer Protection Act, 2019, the term “unfair trade practice” involves trade practices

that adopt unfair methods to promote the sale, use, or supply of goods or services.7 The

methods can involve oral or written statements or visible representations through electronic

records to represent a particular standard, quality, grade, quantity, composition,

characteristics, benefits, or usefulness that such goods or services do not have.

The wide array of unfair trade practices lead to financial and emotional harm to the

consumers, which, though prohibited by law, is in application in the markets and businesses.

The Consumer Protection Act aims to widen its scope to curb the same.

Food is an inevitable element of our daily lives. The busy routines and increasing health-

conscious mindset of the masses provide wonderful opportunities for advertisers to make

health claims about their products. Indian markets themselves have witnessed a vast

complexity in advertising, especially with regards to the food industry. These include the

higher reach of mass media, more extraordinary assortments to products of one kind, more

options of choice, and a promise for a worthy product in exchange for the money spent.8 Thus,

5 Consumer (n 1), § 2(9)(iv) 6 Consumer (n 1), § 2(9)(vi) 7 Consumer (n 1), § 2(47) 8 Priyanka Singh and others, ‘Deceptive Food Advertisements in India’ (2013) 3 IJBAMR 132

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the influence of advertisements on consumer imperatively becomes undeniable. Therefore, the

advertisements must be truthful about their claims.

However, due to the high pressure of demand and competition in the market to be unique,

there is an excellent possibility for advertisements to be false and misleading, which are

unethical to consumer choice and unjust to a consumer’s health.

Promotion of food products are likely to include exaggeration; however, when the claims

become utterly false and misrepresent the facts at entirety, this becomes objectionable and

violated the fundamental rights of a consumer, i.e., right to choose, right to information, right

of being protected against unsafe goods and unfair trade practices.9 Thus, discerning

misleading advertisements in the food industry is a crucial matter of research and awareness.

As per section 2(28) of the Consumer Protection Act, 2019, “misleading advertisement” is

defined as an advertisement concerning any product or service which—

 falsely describes the good,10

 gives a false guarantee likely to mislead a consumer with regards to nature, substance,

quality, or quantity of the product,11

 conveys express or implied representations which constitute unfair trade practice12; and

 deliberately conceals important information.13

 When an edible oil advertisement claims a person to be free of heart problems as long as

one uses their oil, it misrepresents the facts.

9 Pushpa Girimaji, Misleading Advertisements and Consumer 1 (Centre for Consumer Studies, Indian Institute of

Public Administration 2013) 10 Consumer (n 1), § 2(28)(i) 11 Consumer (n 1), § 2(28)(ii) 12 Consumer (n 1), § 2(28)(iii) 13 Consumer (n 1), § 2(28)(iv)

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 When a toothpaste manufacturer claims its product to prevent cavities without having any

data to prove, this constitutes a false guarantee.

 When an advertisement of noodles claims that it is made of wheat flour, but the

constituents include wheat flour only up to 20% of the composition, it becomes

concealment of important information.

The 2019 Act also extends to include misleading online advertising in its scope of the

definition of unfair trade practices.14 With specific regards to the term “goods” in the

definition of consumer, it has been defined as any movable property, including “food.”15 The

definition of food here is regarding clause (j) of sub-section (l) of section 3 of the Food Safety

and Standards Act, 2006.16 Various cases have shown the widespread unfair trade practice

regarding misleading food advertisements and their impacts.

The widely debated and pompous 2015 Maggi noodles case17 is a landmark example of unfair

trade practices, false labelling, and misleading advertisements. A complaint was filed by the

Consumer Affairs Ministry before the NCDRC (National Consumer Disputes Redressal

Commission) in 2015 against Nestle India for its misleading advertisement that Maggi noodles

were “healthy.” The instant noodles brand Maggi was banned from selling the product after

FSSAI (Food Safety and Standards Authority of India) found an excessive level of lead and

presence of MSG (monosodium glutamate) in the samples, making it “unsafe and hazardous”.

Nestle was also alleged for violating labelling regulations on taste enhancer MSG and for the

first time, an action under section 12(1)(d) of the Consumer Protection Act was taken through

14 Gaurang Kanth, ‘The Consumer Protection Act, 2019: An Overview’ (Mondaq, 10 April 2020)

<https://www.mondaq.com/india/dodd-frank-consumer-protection-act/876600/the-consumer-protection-act- 2019-an-overview> accessed 01 June 2021 15 Consumer (n 1), § 2(21) 16 Consumer (n 1), § 2(21) 17 Nestle India Ltd v Union of India & Anr Civil Appeal No 14539 of 2015

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which both the Centre and States have powers to file complaints. Damages of Rs 640 crores

were imposed.

Figure 1. After the case, the Maggi Noodle campaign started in 2015, which claimed Maggi to

be safe again.18

The Saffola versus Fortune oil case19 involved a long series of allegations dealing with

disparagement and misleading advertisement. The plaintiff’s product Saffola oil had been

disparaged by commercials and advertisements issued by the defendant cooking oil product

Fortune with misleading claims of Fortune Rice Bran Oil (RBO) being “healthiest oil in the

world,” “healthier than Saffola Oil,” and “100% RBO being 100% healthy.” The plaintiff

contended that the false and misleading health claims and statements in the advertisement are

prima facie unlawful, violative of the Food Safety and Standards Act and Rules. Marico’s

allegation, however, lost the court battle since RBO was found suitable for health, but the

“healthiest oil in the world” contention caught wide criticism in the public eye.20

18 Tingmin Koe, ‘”No lead in Maggi": Nestle India again defends product quality amid lawsuit challenge’ (Food Navigator- Asia, 14 January 2019) <https://www.foodnavigator-asia.com/Article/2019/01/14/No-lead-in-

Maggi-Nestle-India-again-defends-product-quality-amid-lawsuit-challenge> accessed 01 June 2021 19 Marico Limited v Adani Wilmar Ltd (2013) 199 DLT 663 20 Priyanka Pani, ‘Ad row: Adani Wilmar wins court battle against Marico’ (The Hindu Businessline, 22 April 2013)

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Figure 2. Fortune Oil claimed its product to be better as compared to other cooking oils.21

In this case, Justice Usha Mehra noted that “The vast majority of the viewer of the commercial

advertisement on electronic media are influenced by the visual advertisements as these have a

far-reaching influence on the psyche of the people, therefore, discrediting the product of a

competitor through commercial would amount to disparagement.”22 The plaintiff drink Pepsi

was portrayed as a “kids drink” against Thums Up, the product drink of the defendant. Pepsi

was represented as sweet and not meant for small kids. The advertisement was found not only

disparaging but also misleading.

Keywords: misleading advertisement, consumer protection, unfair trade practices, food

industry, false advertisement.

21 BestMediaInfo Bureau, ‘Saffola vs Fortune Rice Bran Oil: Marico withdraws petition’ (Best Media Info, 6 May

2013) <https://bestmediainfo.com/2013/05/saffola-vs-fortune-rice-bran-oil-marico-withdraws-petition/> accessed 02 June 2021 22 Pepsi Co Inc & Ors v Hindustan Coca Cola Ltd & Anr (2004) 1 Raj 570

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The study has been undertaken to understand to what extent do consumers find food

advertisements false or misleading and how aware they are about their rights.

 Research hypothesis: It is hypothesised that with the decreasing amount of time and an

increasing amount of influence that food advertisements hold on the consumers, it is

necessary to be aware of one’s rights as a consumer and prevent oneself from

misleading advertisements.

 Disciplines and sub-divisions: Law (consumer laws), Psychology (media psychology)

 Hypothesis as a question: How strong is the impact of misleading advertisements in the

food industry, and how effective are the consumer protection laws with the same

regards?

 Paper Title: Misleading Advertisement In The Food Industry And The Consumer

Protection Laws

o Primary research methods: Exploratory research, online survey

o Secondary research methods: Analytical research using case laws, eBooks, journal

articles, research papers, and news articles.

The research questions in the present study are:

 How wide is the reach and impact of food advertisements?

 How much impact such advertisements make on consumer purchases?

 What is the reaction of consumers to the prevailing advertisements and claims made by

them?

 How much awareness do consumers have about their rights against the consequences of

such misleading advertisements?

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Due to the prevailing pandemic situation, an online survey was conducted to find answers to

the research questions dealing with the proposed hypothesis.

An online survey was made up of multiple-choice questions that helped provide better

insights into consumer awareness and make it easier for the respondents to understand

questions easily and promptly answer them.

In order to respond to the research questions, the chosen population was from India to assess

the impact of misleading advertising on consumers and how they perceive it.

Realizing an online survey to be necessary and suitable for the research hypothesis and

research questions, primary data collection was collected through Google Forms to complete

the secondary data already found.

The survey will allow asking consumers how they perceive misleading advertisements and

what their reactions are. This will allow for a better understanding of how aware consumers

actually are about their rights and the remedies available.

A keen academic observation highlighted an abundance of research papers and reports that

discussed the impact of misleading advertisements in the food industry. However, not many

papers highlight that the consumers themselves are aware of their rights and their notions

regarding deceptive food advertisements. This paper tries to fill the gap mentioned above.

 Time constraints led to a collection of only 100 responses.

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 Due to the prevailing pandemic situation, ground research or interview could not be

conducted; thus, the research was delimited to an online survey only.

 Not many choices could be provided in the questionnaire's options to obtain a precise

response, which delimited the scope of categories that could have been included

otherwise.

1. DEMOGRAPHICS  Gender

 Age

 How often do you see

advertisements related to food

products?

 What is the most common source of

food advertisement that reaches you?

 What products are you likely to buy

based on its advertisement?

 What is your product purchase based

upon?

 To what extent is your purchase

dependent on the advertisement?

 Are the food products really as

nutritional as claimed in the

advertisements?

 Are false food advertisements easy to

identify?

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 Have you ever complained against

any false food advertisements?

 Are you aware of the fact that false

advertisement is an unfair trade

practice?

 Do you know where can a consumer

file complaint regarding false food

advertisements?

 What will you do if you purchase a

food product based on its

advertisement but later find it

misleading?

First of all, the gender of the participants can be helpful in the analysis. Out of 100

respondents, almost equal participation can be seen from both men and women, with 49

females and 51 males.

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The second graph represents the age of the participants. For the study, the chosen age

categories were relevant because it is believed that consumers differ in their choices based on

their age, and almost everyone is affected by misleading advertisements these days.

It was observed on the graph, the significant rate of respondents was 94% belonging to the first

category “16-20” years old. The second category of “21-30” years of age displayed zero

participation. The other prominent age group was from the third category of “31-40” years of

age with 4% participation. The last category of the “41 or above” age group showed the most

negligible participation of 2%.

The first graph shows that both men and women pursue consumerism to an almost similar

extent. Thus, modern-day consumerism is not limited to only one gender and impacts both

men and women.

The second graph highlights the maximum participation from the youngest age criteria,

signifying that young people are more attracted to food product advertisements. However, the

higher age groups showed less participation, which does not mean that advertisements do not

affect them, but do less.

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This pie chart represents how often do the participants come face to face with advertisements

related to food products. The responses suggest that a maximum number of respondents, with

76% see advertisements related to food products on an “everyday” basis. The second most

frequency lay in the category of “3-4 times a week” with 18% responses. The “once a week”

criteria showed 2% response, and “2-3 times in a couple of weeks” showed 3% response. No

response was seen for “once a month criteria”, and a small 1% response came up for “once in a

few months” criteria.

This pie chart represents what the most common source of food advertisement that reaches the

participants is. This allowed the researcher to notice that “social media platforms” are the most

suggestible type with a 53% response. The second most response was for “television”, with a

42% response. Then, the percentages are very low for “newspapers and magazines” with a 4%

response. “Billboards and posters” are less suggestible in the mind of people with a low rate of

1%. No “other” source was given any response.

The first pie chart shows that food advertisements are a significant part of people’s lives and

they see it daily. Those who do not see it every day perhaps agree the frequency be 3-4 times a

week, which holistically shows that 94 respondents agree with the food advertisement

frequency to be really high.

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The second pie chart reveals what the most common source of food advertisements is. Social

media platforms were seen as the most prominent source, with 53 respondents agreeing with

the same. The second-highest impact comes from television.

As earlier analysed through the demographics, young people of the age group “16-20” years

face food advertisements on an everyday basis, primarily through social media platforms and

television. This highlights that the engagement of younger age groups towards food

advertisements is more prominent via print media, making it evident that advertisers are more

likely to engage in producing such ads through these quick reaching sources.

To understand the influence of such advertisements, it was crucial to know what products

commonly influence the respondents. The pie chart showed the following responses:

 Commercially prepared food burgers, fries, pizzas: 33% (Highest)

 Savoury Snacks like chips, crisps, namkeens: 23% (Second Highest)

 Breakfast Products like cereals, bread, biscuits: 15%

 Sweet Foods like cakes, muffins, ice-creams, chocolates: 10%

 Beverages like juices, cold drinks, energy drinks: 9%

 Dairy Products like milk, yoghurt, cheese: 4%

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 Regular Items like oils, spices, flour, sauces: 4%

 I do not base my choice on advertisements: 1%

 All: 1%

This pie chart represents what element actually influences a consumer to purchase a particular

product based on its advertisement. The responses for the feature categories are as follows:

 Qualities of the product being advertised: 40% (Highest)

 Need or requirement: 30% (Second Highest)

 Graphical representation of the advertisement: 23%

 Price of the product: 6%

 Brand Ambassador: 1% (Least)

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This questionnaire was done to identify how much a food advertisement can make the

consumer decide his purchase of the advertised product. Respondents showed the criteria of

“moderate dependency” with a 57% response. 37% of people found their purchase to be

“minimally dependent” on the advertisement. 6% of people showed “high dependence” on

their food product purchased based on its advertisement.

From the first pie chart, it is clear that commercially prepared foods like pizzas, burgers, fries

lure the consumers more through the advertisements. The second highest response was shown

to savoury snacks like crisps, chips, and namkeens. It shows that processed foods or quick-to-

have snacks are more favourable to consumer purchase via their advertisements. It can also be

inferred that such food items are preferable in the fast-moving lives of people. Thus, the

advertisements of the same are likely to influence profoundly.

Furthermore, as per the demographics, it is clear that young people are attracted to such food

items more, and luring advertisements can easily catch their attention.

The second pie chart highlight was undoubtedly attracting the consumer from the

advertisement. It is seen that the product's qualities being advertised mark the highest

importance, along with the need or requirement. If a product is advertised to be beneficial or

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imposed as a requirement, consumers will likely consider purchasing the same. Thus, claims

made in food advertisements play an essential role in deciding the purchase.

The third pie chart shows that purchase moderately depends on the advertisement. Thus, the

influence can vary with exaggerating the claims made about food products and may shift the

purchase likeliness either way.

This highlights that misleading food advertisements are an easy tool to lure the consumers

through unproven claims, imposed needs, and the quality of quick consumption of the

product.

This question aimed to know if the consumers find the advertisements really as nutritional as

claimed? “Neutral” and “Disagree” categories earned an equal response. Only 4% of

participants agreed the claims to be correct.

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It was observed that most consumers say “no” to ease of identifying a false food advertisement

with a 45% response. 37% of respondents showed doubtfulness with a “maybe”, and only 18%

responded to find it easy.

The first pie chart shows that consumers are equally disagreeing and neutral towards the food

advertisements' nutritional claims to be true. This shows that people intrinsically believe the

claims made in such ads are not valid, which is, however, contrary to their response to the

highlighted qualities.

The other chart highlights that consumers do not find it easy to identify false food

advertisements, which again contradicts their response to disagreeing with false claims. This

means that even though consumers believe that food advertisements are likely to make false

claims and convey false qualities of their products, consumers cannot find what

advertisements are true and what are not. This brings another point that advertisers are

already believed to be deceptive, but their unfair trade practices are so professional that

customers are likely to get fooled by the lure they create in their advertisements.

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This pie chart represents that most respondents disagree that they have ever complained

against misleading food advertisements, with a 92% response. 8% of respondents claim to

have complained against these when faced.

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This pie chart shows that 95% of the participants are aware of the fact that misleading food

advertisements fall under the category of unfair trade practices. 5% of participants show

unawareness.

This pie chart shows that 86% of consumers are aware of their right to complain if they face

any such misleading advertisements. However, 14% of participants denied being aware of

where they can file a complaint.

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This question was asked to understand what a person would do if he or she faces the

consequence of falling into the trap of a misleading advertisement. The highest response of

49% came up for “avoiding using the product again.” 36% of participants agreed to both

complaining and avoiding using the product later. Lastly, 15% of respondents agreed to

“complain and seek compensation” for their suffering.

The first pie chart shows that most participants have never complained against any false food

advertisements, even though they agree to be aware of it being an unfair trade practice and

they know where to file a complaint, as seen in the second and third pie chart. This indicates

an ignorant tendency of the consumers not to take up a stand when facing such malpractices.

However, as analysed above, such advertisements are not easy to identify, consumers are

likely to avoid any complaint.

Nevertheless, the last question was framed to know what happens if a consumer faces an

issue. The last pie chart clearly highlighted that if a consumer purchases a food product based

on its advertisement but later finds it misleading, most consumers agree to avoid the product

use again. This confirms that most consumers, although aware of the redressal mechanisms,

are likely to avoid going through the legal procedures. However, if the “avoiding percentage”

is combined with the “do both criteria,” consumers are majorly in favour of avoiding the

product use instead of seeking redressal. This highlights the need for more consumer

awareness in the present society.

 How wide is the reach and impact of food advertisements?

 As per the empirical data, the reach of such food advertisements are seen to be on an

everyday basis, primarily through social media platforms and television (print

media)

 How much impact such advertisements make on consumer purchases?

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 The claims made regarding the features and qualities of the food product play a

significant role in influencing consumer purchase. Thus, if advertisements are

exaggerated and luring about the product's features, it is likely to attract consumer

attention.

 What is the reaction of consumers to the prevailing advertisements and claims made by

them?

 Consumers intrinsically feel the nutritional claims made by the advertisers to be

fake, but the advertisements are made so captivating and authentic that most

consumers fail to identify false advertisements and cannot decide their choice to

depend on their opinions strictly

 How much awareness do consumers have about their rights against the consequences of

such misleading advertisements?

 Consumers are primarily aware of where to file a complaint but show neglect to

engage in court proceedings. Instead of seeking compensation for the suffering,

most consumers are likely to avoid using the product again instead of taking action

against the endorser.

It is noted that the food advertisement industry has a considerable impact on consumer

purchase preferences, and most consumers fall into the captivating claims made by such

advertisements.

However, there is a lack of awareness regarding the speedy remedy that the consumers can

avail of if they suffer any damage. Most people prefer to ignore seeking compensation, which

signifies a need to spread more awareness about consumer protection forums' speedy nature

and a wide array of remedies and monetary compensations that the consumers can easily avail

themselves of.

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The Consumer Protection Act, 2019 empowers the set up of a Central Consumer Protection

Authority (CCPA) by the Central Government to protect, promote and enforce the rights of a

consumer by incorporating a special chapter- Chapter III [Section 10-27]. CCPA is empowered

to investigate and impose penalties in matters related to violation of consumer rights, unfair

trade practices, and misleading advertisements.

As per section 17 of the Act, a complaint relating to the matters mentioned above can be

forwarded either in writing or in electronic mode to a District Collector or the Commissioner

of the regional office, or the Central Authority.

Section 21 of the Act empowers the Central Authority to issue directions and penalties against

false or misleading advertisements. If it is opined for a penalty to be necessary, the

manufacturer or endorser can be imposed with a penalty extending to Rs 10 lakhs.23 For every

subsequent contravention, the penalty may extend to Rs 50 lakhs.24 As deemed fit by the

authority, the endorser can also be prohibited from making such endorsements regarding any

product for up to 3 years.25

This relatively new law has provisions to deal with misleading advertisements about food.26

Here, the word “advertisement” includes publicity even through electronic media. Even

promotional material on labels, wrappers, and invoice are brought under the definition of

advertisement.27 Section 24 of the Act lays down restrictions on advertisement and prohibition

as to unfair trade practices. If any advertisement contravenes to the provisions of this Act, and

if proved by the suffering consumer, shall be provided with damages extending to Rs 10 lakhs

23 Consumer (n 1), § 21(2) 24 Ibid 25 Consumer (n 1), § 21(3) 26 Consumer (n 1), § 2(28)(i) 27 Ibid

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as per section 53 of the FSS Act. In case of death, compensation of up to Rs 5 lakhs is provided,

while in case of grievous injury, it extends to Rs 3 lakhs.28

Media is now the most promising network, with the highest viewership and the most effect on

beneficiaries. As a result, and in particular, in certain goods and target markets such as the

food industry, the monitoring carried out on ads, in general, is more demanding and more

stringent. However, there is room for growth as much quality broadcasting is not accurate or

omits facts essential to making the appropriate purchasing decision for consumers.

Many advertisement campaigns deliver a message on this topic regarding food goods, based

on an exaggerated promise, immediate benefits, unbeatable consistency, or complete

guarantees, leading to a loss of economic value or health risk for the customer. Consumers

may wait or fail to attend a doctor’s appointment since they think they already take a specific

food product to treat a diagnosed condition, such as high cholesterol or bone loss.

Food ads aimed at the general population call for further legal oversight and public

conscientiousness to curb the influence of all kinds. Suggestions could be as follows:

 Speedy methods such as filing an online complaint should be provided to consumers.

 Online complaint mechanisms should be accessible in the interface and must be cost-

effective.

 Consumers must complain about any malpractice they face to encourage less unfair

trade practices.

 Young children must be made aware of identifiable health claims made about some

particular variety of products.

 Checking the nutritional label before making a purchase must be the consumer’s

responsibility regardless of the authenticity being shown in its advertisement.

28 Akanksha Rana, Consumer Claims 158 (EBC Reader 2020)

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Only this way, a better consumer market can be developed and protect the health of the

citizens.