Vice principal, CSI Institute of Legal Studies, Parassala, Thiruvananthapuram
CONSUMER RIGHTS AND MISLEADING ADVERTISEMENTS
Producers and consumers are the moving forces of an economy. As per the concepts of the modern philosophy consumer is considered as the sovereign of the king under a capitalist economy. Economic principle says that resources of a country are utilized to satisfy the unending wants of the consumers. It is no doubt for the growth and development of the economy level of production should increase. Especially so in view of the fact that strength of economy is measured in terms of the quantum of products manufactured over an economic period. In terms of a legal point of view the economic factors have to meet the requirements of protection of interests of the consumers. It is more so given the fact that producers are highly placed with control over production and greater access to modern technologies and availability of trained brain for implementation of marketing methods.
Production of goods depends upon the demand in the market. Advertisement is definitely a demand generating tool in the hands of the producers. In our legal frame work manufacturers have the legal right to advertise their products. It even gets Constitutional protection. Right to advertise has been held to be part of the fundamental right to speech and expression guaranteed under Article 19 of the Constitution. “Commercial speech is a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.”i
Now, the question is the extent and scope of the right of the producers to publish advertisements in order to attract the potential consumers to buy their goods of avail of the services they offer. Competition among the producers gives way to competition in the filed of generating more and more enchanting advertisement in different ways and forms. Is the right to advertise an absolute one? Definitely not.
LEGAL PROTECTION OF CONSUMERS
A welfare state has the duty to protect the interests of the consumers from being violated by the greedy producers. One of such protection should extend to cover them form the grip of misleading advertisements.
India, being a welfare state, it is the duty of the government to protect and enhance the welfare of the people. There is no dispute that every person is a consumer. We need food to eat,
clothes to wear and house to live in and therefore, these basic things are to be purchased by every human being unless he is the producer of the same.ii
Constitutional source of such protection can be traced to Clause 2 of Article 19 of the Constitution. It empowers the state to place reasonable restriction on the rights of the producers to advertise their goods and services in the light of public interest.
LEGAL FRAME WORK OF PROTECTION
There are various provisions of law which ensures the protection of consumer interests. Evolution of the protective legal principles can be traced from Indian Contract Act 1872 to the newly introduced Consumer Protection Act 2019. One of the principles of the law of contract is that what is offered need be performed. In Carlill v Carbolic Smoke Ball Coiii, the defendants advertised their product “Carbolic Smoke Ball’ a preventive remedy against influenza. The plaintiff (Mrs. Carlill) relying on the advertisement purchased a Smoke Ball from a chemist, used the same in accordance with the directions of the defendants, but still caught influenza. Holding the advertisement as an offer to the world the plaintiff was held to be entitled for compensation.
Sale of Goods Act 1930 provides for the contractual aspects with respect to sale of consumer goods. There are provisions of condition and warranty in a contract of sale. In accordance with these provisions if the goods are not delivered as per the terms of the offer the consumer gets right to either repudiate the contract or to claim damages as the case may be.
Similarly certain kinds of advertisements are prohibited as per the provisions of the Drugs and Magic Remedies (Objectionable Advertisement Act) 1954.
SPECIAL LAW
Consumer protection Act 2019 specifically deals with misleading advertisements. Act has defined both the terms of advertisement as well as misleading advertisement. Section 2(1) defines advertisement as “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”. According to section 2(28) misleading advertisement means an advertisement which –
- falsely describes such product or service; or
- gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity of such product or service;
- conveys an express or implied representation which, if made by the manufacture or seller or service provider thereof, would constitute an unfair trade practice; or
- deliberately conceals important information
It is a much welcome move from our legislature that in the current era of explosive growth of information technologies and cut-throat competition in the market special protective measure has been brought into legal system by defining the misleading advertisement and providing for their punishment.
Section 89 says that any manufacturer or service provider who causes a false or misleading advertisement to be made which is prejudicial to the interest of consumers shall be punished with imprisonment for a term which may extend to two years and with fine which may extend to ten lakh rupees, and for every subsequent offence, be punished with imprisonment for a term which may extend to five years and with fine which may extend to fifty lakh rupees.
So, the intention of the legislature to treat the misconduct of the producers by misleading the innocent consumers with severe blow is writ large in the punitive provision.
PROCEDURAL FORMALITY
In case of any misleading advertisement made by a trader, now, the consumer can seek legal remedy by way of filing a complaint before the Consumer Dispute Redressal Commission. As per the provisions of law any consumer who alleges unfair trade of misleading advertisement can file a complaint before the District Commissioniv.
If the District Commission is satisfied that there is any unfair trade practice of making misleading advertisement as alleged by the complainant consumer, the Commission can issue order directing opposite party to issue corrective advertisement to neutralise the effect of misleading advertisement and direct the opposite party to cease and desist from issuing any misleading advertisement.
Non-compliance of the order of the Commission is a punishable offence. The Commission has got power to punish the defaulter who fails to comply with its order with imprisonment which
shall not be less than one month, but which may extend to three years and to impose fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees or with both. Such offence can be summarily tried for which Commission shall be deemed to be a Judicial First-Class Magistrate of first class.
STATUTORY RIGHTS OF CONSUMERS
Apart from the remedy granted against misleading advertisement latest Act also confers certain rights on the consumers. Consumer has got right to be informed about quality, quantity, potency, purity, standard and price of goods and services as the case may be for being protected against unfair trade practices. Similarly Act also provides for consumer awareness.
Central Consumer Protection Authority has been empowered to ensure that no false or misleading advertisement is made of any goods or services which contravenes the provisions of the Act. The Central Authority has power to ensure that no person takes part in the publication of any advertisement which is misleading. If the Central Authority is satisfied after investigation that any advertisement is false or misleading and is prejudicial to the interest of any consumer or is in contravention of consumer rights, it may order the trader, manufacturer or endorser or advertiser or publisher to discontinue such advertisement or to modify the same. The Central Authority may impose on manufacturer or endorser a penalty which may extend to ten lakh rupees. Likewise, the Authority can prohibit the endorser of a false or misleading advertisement from making endorsement of any product or service for a period which may extend to one year.
As explained above Consumer Protection Act lays down elaborate mechanism for protection of the consumers falling from the pitfalls of the misleading advertisements by the traders or manufacturers who try to make economic advantages with no heed to ethics and values.
It is also relevant to not that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other laws. So, the consumer will be protected by the legal provisions of other statues as well.
STATE TO STRIKE THE BALANCE
In the commercial world rights of the producers to advertise their products and services and the rights of the consumers to be protected from the trap of misleading advertisements are to be perfectly matched. In the present world such a balance requires more equitable consideration to the consumers the producers and businessman being far better equipped and positioned. Constitutional provisions also stand for the protection of the public interest. Directive Principles of State Policy casts a duty upon the state to ensure the welfare of the people. Welfare of the people results from the enjoyment of better goods and services. That can be achieved only by strong consumer protection laws. Stringent consumer protection law is one of the most important needs of the hour. For exploitation of consumers by the businessman is inevitable. In the words of Dr. J N Barowalia “Due to the international character of trade and industry-having well organized and highly professionalized producers and sellers on one hand and the illiterate and unorganized consumers with little time to make selection on the other-the exploitation of consumers is inevitable”. The vice that only law can wipe out.!
END NOTE
| Any person can register a complaint along with a copy / video / audio of such commercial using the GOI’s web page | |
| http://gama.gov.in Grievances Against Misleading Advertisements (GAMA) |
i Tata Press Ltd. Vs Mahanagar Telephone Nigam Ltd. 1996(1) KLT SN
ii Commentary on The Consumer Protection Act, Dr. J N BAROWALIA
iii (1893) 1 Q.B 256 at 268 iv Clause (a)of Sub-section 1 of Section 35
