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False Advertising

Advertising is common tools in industry. Many companies spend millions even


billions in this section to pay celebrities and ideas since surveys prove that advertising
plays big role in their income. They produce branding image which are unique, strong,
catchy, and easy-to- remember for their consumers. Talking about advertising, on the
one hand, it is good for its functions, displays, etc; on the other hand, sometimes it is too
good to be true, the way they bring the messages to the consumers which state “the
number one …”, “you may see the result in just...”, so on and so forth. Illogical sounding
absolutely has to be considered in big portion by consumers. Consumers have to be
aware of the dangers in health and safety of such false advertising.

False advertising might describe in two aspects, in term of definition and


requirements. Based on Tricia Ellis-Christensen, false advertising is any type of
advertising that deceives consumers. Consumers believe that they will earn several
benefits such as good deal, saving money, or buying something that will perform in a
specific manner, yet almost all of them are non-existing at all. While the definition that
might found in the glossary of research lawyer state that false advertising is the crime or
tort of publishing, broadcasting, or otherwise publicly distributing an advertisement
that contains an untrue, misleading, or deceptive representation or statement which was
made knowingly or recklessly and with the intent to promote the sale of property, goods,
or services to the public. To be considered as false, advertising has to pass five
requirements. Those are state a false statement of fact, potentially deceive a substantial
portion of its targeted audience, likely affect the purchasing decisions, involve goods or
services in interstate commerce (politics exclude), and resulted in or is likely to result in
injury to the plaintiff. We have to keep in mind that false advertising is deceptive,
misleading, untrue, criminal, even dangerous, just in case to highly persuade the
consumers to buy the goods and services.

The first dangers might happen after false advertising, which blowing up the
ideas of healthy ingredients and benefits, low non-healthy ingredients or nanoparticles
and chemical ingredients, are concerning health. Fast foods (fried chicken, pizza,
spaghetti, burger), candies and ice cream products claim that they contain suitable
healthy ingredients for consumers like carbohydrate, protein, fat, vitamin and mineral
in good portion. The facts are usually contrary to the advertising, they often lead to
obesity for daily usage. Olive oil products claim organic-brand classified in their
packages even yoghurt products claim might help digestion and boost immunity for
daily usage. They are all sued because of false advertising. Some of cigarettes products
claim the light or mild ingredient of lower tar and nicotine. Many people believe and
buy on the reason of minimizing the effect of smoking and gaining less health-risk. The
reality is smokers still yield about the same amount of smoke, tar and nicotine as regular
brands. After foods and cigarettes, we still have cosmetics. Natural, botanical, organic
cosmetics are usually claimed by several brands, which might be one of the reasons for
consumers to buy, yet it does not mean one-hundred-percent guarantee towards our
health. They still do not show transparent information about nanoparticles being used
in cosmetics which may directly or indirectly affect human health in their anti-wrinkle
creams and sun screens products. Those nanoparticles might contain carcinogens,
mutagens, reproductive toxins and few hundred other chemicals with long-term even
short-term effects. By those all proofs, consumers have to be aware of the dangers in
health of such false advertising or years later they might suffer from cancer as the
cumulative dangerous impact of the products.

Other dangers are concerning safety on the consumers which are in automotive
features, healthcare alternative practice and diet pills. Today’s new vehicles highlight
safety by simply listing the safety features included. The findings are not save even saver
that they should be. The automobile directly causes some 40,000 deaths a year in the
United States, some of these deaths attributable to automotive design flaws and failed
safety features (firestone tires equipped, noise warning system, anti

collision technology, etc). Another thing is not save as it seems to be is healthcare


alternative practice. Quack (a person who pretends to be educated and licensed to
diagnose or treat a patient with a health problem) diagnoses, treats and then sells herbal
supplements and offers therapies that will supposedly cure the patient. Despite of
getting good healthcare advice or treatment, they may get sicker and die sooner because
of illegal, fraudulent and harm practice. The last is about diet pills. Diet pills always
claim that instantly might lose fat even without exercising. Consumers have to accept
the reality that it just will lead to dehydration than truly losing fat. Dehydration might
cause dizziness, unconsciousness even death. By then, consumers absolutely have to be
aware of the dangers in safety of such false advertising or they might die sooner or later.

All in all, we have to be smart consumer in choosing which products best suit for
our needs considering health and safety. The keys to be remembered, false advertisings
are too good to be true and sounding illogical. What we have to do are asking ourselves
about the logic result of their promotion, searching as many facts as possible to support
our decisions, and learning as many experiences as possible from others. By doing so,
you will not be victimized by such kind of false advertising ever.

Why such acts need to be governed by Law?


Because it causes unjust allocation and use of economic and social resources, reduces
value of consumers’ expenditures thereby minimizes the economic welfare of the society.
How is false advertising looked upon in the eyes of Indian law?

It is atort. Consumers who have suffered damages from a business’ use of false
advertising are entitled to file a civil suit for recovery of damages in consumer courts of
India.
The cases relating to false advertising is primarily dealt under Consumer Protection
Act,
1986 and are heard in consumer courts at district, state and national level.

Depending upon the nature and type of the advertisement, it can also be brought into
the
court of law under different legal issues as discussed in this article.
India is a common law country, a federal republic with Judiciary separated and

independent from the legislative and executive functions of the central government. Any
amendments or new legislations by the center are enforceable in whole of India.

“The deeper problems connected with advertising come less from the
unscrupulousness of
our ‘deceivers’ than from our pleasure in being deceived, less from the
desire to seduce
than from the desire to be seduced.”

Daniel j. Boorstin.
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Consumer Protection Act, 1986
The Act provides for protection of the interests of the consumers.
Consumer- Any person who buys any goods or hires any services for a consideration
which has been paid or promised to be paid or partly paid and partly promised to be
paid under any arrangement of deferred payment and includes any beneficiary of such
good or service.
A consumer isnot a person who obtains such good for resale or for commercial
purposes.
The Act aims to promote and protect the following rights of the consumers:
• The right to be protected against the marketing of goods which are
hazardous to life and property
• The right to be informed of the quality, quantity, potency, purity and price
of goods so as to protect the consumer against unfair trade practices
• The right to be heard and be assured that the consumer interest will receive
due consideration at appropriate forums.
• The right to seek redressal against unfair trade practices.
Any advertising that misleads the consumer in India is treated as“unfair trade
practice” and a consumer has the right to get the remedy if such advertisement has
caused actual loss or injury to him/her under Consumer Protection Act.
An unfair trade practice (includes misleading advertisements) means:
• A trade practice which, for the purpose of promoting any sale, use or supply

of any goods or services, adopts unfair or deceptive method or unfair or


deceptive oral or written statement or representation that misleads the
consumer- Governed under consumer Protection Act 1986

• A trade practice that is in the nature of comparative advertisement that


promotes unhealthy competition with the good or services of other
manufacturers -Go ver n ed under Monopolies and Restrictive Trade
Practices Act also called MRTP Act. (Discussed in detail pge 14, 15, 16).
• Advertisements that are against public morality or involves harmful
publications or involves in improper use of the emblems and symbols of
national and international body- Governed by different legal provisions
(discussed in detail Page 11, 12, 13)
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Such misleading advertisement must have affected the purchase decision of the
consumers and hence caused actual loss or injury to the consumers,o r it is
against
public interest or morality.

The advertisements that amount to unfair trade practice and hence misleading
are
defined and categorized as under:
1. FALSE REPRESENTATION
The practice of making any oral or written statement or representation which:

Falsely suggests that the goods are of a particular standard quality, quantity, grade,
composition, style or model;

Falsely suggests that the services are of a particular standard, quantity or grade.

Falsely suggests 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 they do not have.

Makes a false or misleading representation concerning the need for, or the


usefulness of, any goods or services.

Gives any warranty or guarantee of the performance, efficacy or length of life of


the goods that is not based on an adequate or proper test.

Falsely makes to the public a representation in the form that purports to be:

a) Warranty or guarantee of the goods or services,

b) Promise to replace, maintain or repair the goods until it has achieved a

specified result.
If such representation is materially misleading or there is no reasonable prospect
that such warranty, guarantee or promise will be fulfilled

Materially misleads about the prices at which such goods or services are available
in the market.

Gives false or misleading facts disparaging the goods, services or trade of another
person. (This is the ambit of comparative advertisement as discussed later in this
article).