Open Access Research Article
Food Advertisement Standards in India: A Critical Analysis - by Athira Mathew
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Article Details
Food Advertisement Standards
in India: A Critical Analysis
Authored by – Athira Mathew
Abstract-
Advertising lies at the core for spreading awareness among people. It
forms the heart of commercial speech
and has been protected under the ambit of free speech and expression under Article 19 of the Indian
Constitution by the Apex Court through various landmark judgments. One may comprehend the importance of the same by considering its impact on the economy
and the employment market. Although
there are numerous
statutory requirements, India does not have a single unified code
of law that deals with and regulates all aspects of advertising. Despite the
absence of a uniform integrated legislation, there are certain other national legislations that lay down certain
guidelines for advertisements. One such
legislation that governs food advertisements is the Food Safety &
Standards Act, 2006.
As per this act, no advertisement that is misleading or deceptive or that violates
the requirements of this law or the rules and regulations imposed
thereunder can be made regarding the standard, quality, amount,
or grade-composition, or regarding the necessity for or utility of any food. Furthermore, the Food Safety and Standards
Authority of India (FSSAI) set up under the Food Safety and Standards Act, 2006 holds food businesses accountable for misleading claims. The present paper briefly
analyses the provisions given in the
abovementioned statute with regards to food safety. The paper mainly focuses on
whether or not these regulations
are just and fair and whether they violate the Constitution and the basic guarantee of freedom
of speech and expression.
Keywords-
Food Advertisements, Food
Safety, Misleading Advertisements, Freedom
of Speech and Expression, FSSAI.
Introduction-
“Stopping
advertising to save money is like stopping your watch to save time.” – Henry Ford
The significance of this crucial promotional activity is encapsulated in
this famous American industrialist's
quote. The Institute of Practitioners in Advertising have defined Advertising
as “Advertising presents the most
persuasive possible selling message to the right prospects for the product or service at the lowest possible cost”. Therefore, advertising is a practice
undertaken with the aim to sell a product or service to a target
audience and is one of the oldest
forms of marketing which attempts to influence the actions of its target
audience. Advertising, which has been
referred to as the heartbeat of a corporation, reflects the product or service itself,
as well as its naming,
packaging, pricing, and distribution. Without
advertising, goods and services cannot be distributed to retailers and
sellers, who then pass them on to
buyers or users. A thriving national economy also depends on advertising to
boost sales so that manufacturing is
kept up, people are employed and have money to spend, and the money keeps flowing. Mass production, which is essential to the
current industrial civilization, necessitates mass consumption, which in turn necessitates mass market promotion via mass media. As a result,
advertising is necessary in the modern world.1
From the individual who publishes a small classified ad in the newspaper
to an MNC that places an
advertisement on a TV channel, advertising has a very broad scope, many uses,
and many advertisers. Depending on the inventive presentation and use of media required, it could be divided into consumer, business-to-business, trade,
retail, financial, direct response and
recruitment advertisements. The first goal that advertisements try to
accomplish is to tell the public
about a good or service. It helps people become aware of and knowledgeable
about a new product. Second, it
makes an effort to persuade the potential customer by gradually and consistently establishing an impression
of the business and its goods.
Additionally, it serves to remind the
potential customer about the good or service. All of the roles of advertising ultimately work toward achieving the aims
of the marketing communication system, namely
the creation of demand and sales promotion, much like all other
components of the marketing mix.
The qualities of a successful advertisement and the essence of advertising include creativity to draw in and hold the interest
of consumers as well as the selection
and usage of the most
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1 Frank Jefkins, Advertising
23-27 (4th ed. 2009).
cost-effective media.2
There are many people who oppose advertising, despite its economic
justification. It has frequently been
charged with being an immoral and parasitic force that elevates false values and persuades individuals to purchase
items they do not need or cannot afford. It has drawn criticism for fostering
fictitious consumer demand and adding to the issue of overconsumption. This industry is also rife with dishonest activities.
Despite the scale and nature of this industry, there remains no central
legislation to regulate the same in
India. The advertising market is generally regulated by or controlled by a non- statutory body i.e., ASCI (Advertising Standards Council of India). Apart from this code there
are some laws which specifically govern specific media. These laws include those laws
which specifically govern media, secondly, laws which protect both
society and the consumer and lastly
laws which are specifically related to industry. Code of Conduct of the News Broadcasters Association, Norms for
Journalist Conduct issued by the Press Council of India, The Press Council Act 1978, Cable Television Network Rules,
1994 and Electronic Media Monitoring
Centre (EMMC) are some of the laws
that govern media that help regulate advertisements. Furthermore, Emblems and Names (Prevention of
Improper Use) Act, 1950; Young
Persons (Harmful Publications) Act, 1956; Standards of Weight & Measures
Act, 1976; Indecent Representation of
Women (Prohibition) Act, 1986; Consumer Protection Act 1986; Companies Act, 2013 and Consumer Protection Act 2019 are
few legislations that oversee
advertisements and mainly deal with society and consumers.
Additionally, there are certain industry-specific statutes that also lay
down certain guidelines for
advertising like The Drugs and Cosmetic Act, 1940, The Drugs and Magical
Remedies (Objectionable Advertisements) Act, 1954, Public Gambling Act, 1867, the Lotteries (Regulation) Act, 1998 and the Prize
Competitions Act, 1955, Advocates Act, 1961,The Prize Chits and Money Circulation Schemes (Banning) Act, 1978,
Infant Milk Substitutes, Feeding Bottles
and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992, Securities and Exchange Board of India
Act, 1992 8. The Transplantation of Human Organs Act, 1994, The Prenatal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act, 1994, Cigarettes and other Tobacco
Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply
and Distribution) Act, 2003 and The Food Safety & Standards
Act, 2006 etc.3
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2 Id at pg. 55.
3
Dr. R. M Kamble, Laws Governing Advertisement in India: An Overview, 9 International Journal
of All Research Education and Scientific
Methods (IJARESM) 836-837.
Major legislations that pertain to advertisements in India
include the following-
Firstly, The Consumer
Protection Act 2019, which replaced
the erstwhile Consumer
Protection Act 1986, has brought much relief to consumers. It has
provided provisions to deal with
new challenges that have been faced by consumers in the new digital era. Section 2(1) of the Act defines "advertisement” to mean any audio or
visual publicity, representation, endorsement
or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes
any notice, circular, label, wrapper, invoice or such other documents.4 Further,
the new act also has clear provisions against misleading advertisements and has also defined
misleading advertisements. Additionally, the Central Authority has been granted
the power to issue directions and penalties against
false or misleading advertisements as per Section 21 of the Act.5
Secondly, The Cigarettes and other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade
and Commerce, Production, Supply and Distribution) Act, 2003, the statute that prohibits advertisement of
cigarettes and other tobacco products. Section 22 of the Act provides the penalty for contravening the same. Whoever contravenes the provision i.e., Section 5, is to be punished with
imprisonment up to 2 years or fine extendable up to Rs.1,000/- or both (applicable for first conviction); further in
case of successive convictions imprisonment up to 5
years and fine extendable up to
Rs. 5,000/-.6
The Transplantation of Human Organs Act, 1994 has also defined the term
„advertisement? and has prohibited
any advertising inviting individuals to provide any human organ for payment.7
Finally, the Bar Council
of India Rules
(specifically before amendment of Rule 36 of BCI Rules) formulated
under the Advocates
Act 1961 also govern advertisements and this piece
of legislation has effectively set a ban on advertisement for publicity and also provided
for control on fake
advertisement of practicing lawyers to a public at large to attract the
clients.8 Therefore, despite
the absence of a uniform
integrated legislation, there are certain
other national legislations that lay down certain guidelines for various kinds of
advertisements.
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4 The Consumer Protection Act, 2019, §2(1).
5 The Consumer Protection Act, 2019, §21.
6 The Cigarettes and other Tobacco Products
(Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act,
2003, §22.
7 The Transplantation of Human Organs Act, 1994, §2(a).
8 Bar Council of India Rules, 1975, §36, (6th September, 1975).
Laws pertaining to Food Advertisements-
Now, advertisements pertaining to food have been mainly regulated through
the Food Safety and Standards Act,
2006. This Act was passed to consolidate the laws relating to food and to establish the Food Safety and Standards
Authority of India for laying down science-based standards for articles of food and to regulate their
manufacture, storage, distribution, sale and
import, to ensure availability of safe and wholesome food for human
consumption and for matters connected therewith or incidental
thereto.
This Act explicitly defines
unfair business practises and imposes penalties
for the use of deceptive and misleading advertising. Section 24 of the Act deals with same. It stipulates that 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. Further,
it prohibits individuals from partaking 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–falsely represents that the foods
are of a particular standard,
quality, quantity or grade composition, makes a false or misleading representation concerning the need for, or the usefulness of a particular article of food, or which gives to the public
any guarantee of the
efficacy that is not based on an adequate or scientific justification thereof.9 Additionally, Section 53 of this legislation lays down the punishment for publication of food related
advertisement. It provides that any person who publishes, or is a party to the publication of an advertisement, which falsely describes
any food or which is likely to mislead as to the nature or substance or quality of any food or gives false guarantee,
shall be liable to a penalty which may extend
to ten lakh rupees.10
In addition to this, The Food Safety and Standards Authority of India
(FSSAI) set up under the Food Safety
and Standards Act, 2006 has finalised certain guidelines to regulate claims and advertisements by food business
operators in relation to consumable food items. By holding food enterprises responsible for such claims and promotions, these regulations seek to uphold
fairness in the marketing of food
items and safeguard the interests of consumers.
These regulations have laid down general principles for claims and advertisements; criteria
for nutrition claims (including nutrient content or nutrient comparative
claims), non-addition claims (including
non-addition of sugars and sodium salts), health claims (reduction
of
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9 Food Safety
and Standards Act, 2006, §24.
10 Food Safety
and Standards Act, 2006, §53.
disease risk), claims related to dietary guidelines or healthy diets, and
conditional claims; claims that are
specifically prohibited; and procedures for approval of claims and redressal of non-compliances under these regulations.
General guidelines established by the FSSAI for food industry operators
and marketers to follow while advertising include
the following: assertions must be verifiable, clear-cut, relevant,
and not deceptive. They should not promote or support excessive food
consumption. The quantity of
servings of the meal per day necessary to achieve the claimed benefit must be specified in the claims.
A food's nutritional or health claims must also be supported
scientifically by procedures that are approved for quantifying the
ingredient or substance that forms
the foundation of the claim. Words/phrases such as natural, fresh, original,
traditional, authentic, genuine, real
etc. are not to be used on the food labels except under specific conditions where the meaning of a
trademark, brand name or fancy name contains these adjectives. Finally, every declaration which is required to be made
on advertisements under these regulations need to be conspicuous and legible.11
These regulations have also prohibited certain types of claims such as
those that refer to the suitability
of the food for use in the prevention, alleviation, treatment or cure of a
disease, disorder or particular
physiological condition unless specifically permitted under any other regulations made under the Act. Claims
which do give rise to doubt or suspicion about the safety of similar
food or which may arouse fear are also not to be made. Further,
no advertisements or claims for
articles of foods shall be made by
any food business operator that undermines the products of any other
manufacturer for the purpose of promoting their products or influencing consumer
behaviour.12
Overall, these guidelines have been a good way to keep food companies in
check and not indiscriminately use the words
„natural?, „fresh?, „original?, „traditional?, „authentic?,
„genuine? etc. in food advertisements. These guidelines have been wide in scope and has been able
to provide solutions for the
challenges of the modern world.
Constitutionality of Advertisement Regulations-
Article 19(1)(a) of the Indian Constitution stipulates that everyone has
a right to freedom of speech and
expression.13 Judicial activism and inventiveness have enlarged the
scope of this right to include
various other aspects such as right to silence, freedom of press etc. Article 19(2) of the Indian Constitution lays down
the reasonable restrictions to the aforementioned fundamental right. This provision states that the State can make
laws that impose reasonable restrictions
on the exercise of the right conferred Article 19(1)(a) in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement
to an offence.14
Now, the constitutionality of regulations on advertisements can be traced through a number of landmark
judgements put forth by the Apex Court.
In the case of A. Suresh v. State of Tamil Nadu, it
was held that where an activity involves questions
of freedom of speech as well as questions of freedom to carry on a business, profession or vocation, it is legitimate
for the State to regulate the business aspect in terms of Article 19(1)(g).15
Later, in Romesh Thappar v. State of Madras, the Supreme Court held that
Article 19(1)(a) includes the freedom
of press.16 In Hamdard
Dawakhana v. Union of India, the Court
observed that, an advertisement is a form of speech but its true
character is reflected by the object
for the promotion of which it is employed and brought it under the ambit of
Art. 19(1)(a) as it is to the notice
to the public at large. Further the Court held that the moment these activities take the form of a
commercial advertisement it no longer falls within concept of freedom
of speech.17
However,
in Indian
Express Newspaper v. Union of India, the Supreme Court held that commercial speech is protected
under the ambit of free speech and expression under Article
19 and the Supreme Court observed that “We are of the view that all commercial advertisements cannot be denied the protection of Article
19(1)(a) of the Constitution merely because
they are issued by businessmen and its true character is detected by the object
for the promotion of which it is employed.”18
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13 Ind. Const. § 19, cl. 1(a).
14 Ind. Const. § 19,
cl. 2.
15 A. Suresh v. State of Tamil Nadu (AIR 1997 SC
1889).
16 Romesh Thappar
v. State of Madras (1950 AIR 124).
The above position was also elaborated upon in Tata Press Ltd v. Mahanagar
Telephone Nigam Ltd., wherein
the Supreme Court observed the right of the consumer as a recipient of commercial speech. In this case, the Court
held that Article 19(1)(a) not only guarantees
freedom of speech and expression but that it also protects the rights of
individuals to listen, read and
receive the said speech. Further, the Apex Court also clarified that misleading
and deceptive advertising would not fall within the protection of Article 19.19
Furthermore, in Sushil Chowdhary v. State of Tripura,
wherein the action of the State Govt. was
challenged when the State Govt. Tripura, departing from its established policy,
started allowing 24 percent of its
advertisements to only one newspaper and allowing only 6 percent to another newspaper. The Court held that
the action of the State policy violated two articles of the Constitution i.e., Article 14 and Article 19(1)(a). The
High Court further pointed out that
freedom of speech and press, are not so much for the benefit of the press, as
for the benefit of the general
community. It also observed that a duty to
ensure circulation of newspaper
arises on the part of the government because the community has a right to be supplied
with information and as the government owes a duty to educate
the people within
the limits of its recourses.20
Therefore, through various
pronouncements Indian courts have brought
advertisements, which lie at
the heart of commercial speech, within the ambit of freedom of speech and expression but have also held on various
instances that reasonable restrictions can be placed on misleading and deceptive advertisements. Hence, regulations
on advertisements are to be held constitutional and just.
Conclusion-
To conclude, advertisements in India have been governed mainly by
voluntary bodies due to the lack of a
central legislation. Despite the absence of a uniform integrated statute, there
are certain other national
legislations that lay down certain guidelines for advertisements. One such statute is the Food Safety &
Standards Act, 2006. This legislation governs food related advertisements and lays down certain
guidelines regarding the same. Such guidelines are constitutional and justified
in nature considering the sheer amount of misleading trade practices that
are followed in the contemporary digital era and taking into account various landmark judgments put forward by the Apex
Court. Hence, food advertisement standards in
India are to be deemed fair
and justifiable.
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Article Information
Food Advertisement Standards in India: A Critical Analysis - by Athira Mathew
Authors: Athira Mathew
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/22
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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