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Synopsis

The Supreme Court has said the fundamental right to health encompassed the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies. 

A bench of Justices Hima Kohli and Ahsanuddin Amanullah, however, noted absence of any robust mechanism enacted in law to ensure that the obligations cast on the advertiser to adhere in letter and spirit to stipulations in the 'Guidelines for Prevention of Misleading Advertisements and Endorsements of Misleading Advertisements, 2022' that deals with prohibition of surrogate advertising, free claims advertisements, children.

"It is deemed appropriate to invoke the powers vested in this Court under Article 32 of the Constitution of India for the enforcement of the fundamental right to health that encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies," the bench said.

To fill up this vacuum, the court directed that henceforth, before an advertisement is printed/aired/displayed, a self declaration shall be submitted by the advertiser/advertising agency on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994.

The court said the self-declaration shall be uploaded by the advertiser/advertising agency on the Broadcast Sewa Portal run under the aegis of the Ministry of Information and Broadcasting.

"As for the advertisements in the Press/Print Media/Internet, the Ministry is directed to create a dedicated portal within four weeks from today. Immediately on the portal being activated, the advertisers shall upload a Self-declaration before any advertisement is issued in the Press/Print Media/Internet. Proof of uploading the Self-declaration shall be made available by the advertisers to the concerned broadcaster/printer/publisher/TV Channel/electronic media, as the case may be, for the records," the court ordered.

The bench also said no advertisements shall be permitted to be run on the relevant channels and/or in the print media/internet without uploading the self declaration.

"The directions shall be treated as the law declared by this court under Article 141 of the Constitution of India," the bench ordered.

The court noted a status report of the action taken by the Central Authority on false and misleading advertisements including food and health products showed that from July, 2020 to April, 2024, the total notices issued by the Central Authority for misleading advertisements is 163. 

Out of the said 163 notices, 58 were closed and the remaining 105 are stated to be under process. Not much light has been thrown on the nature of action taken and the activities of the Authority which is empowered to take even suo moto action, whenever false/misleading advertisements are noticed, the court said.

The court directed the Ministry of Consumer Affairs is directed to file an additional affidavit setting out the action taken by the Central Authority on noticing/being informed of false/misleading advertisements, particularly in the food and health sector.

"We are of the firm view that advertisers/advertising agencies and endorsers are equally responsible for issuing false and misleading advertisements. Such endorsements that are routinely made by public figures, influencers, celebrities etc go a long way in promoting a product. It is imperative for them to act with a sense of responsibility when endorsing any product and take responsibility for the same," the bench said.

The court pointed out the Guidelines laid down the duties of manufacturers, service providers, advertisers and advertising agencies to ensure that the trust of the consumer is not abused or exploited due to sheer lack of knowledge or inexperience. 

The Guidelines required a due diligence to be undertaken for endorsement of advertisements and requires a person who endorses a product to have adequate information about, or experience with a specific good, product or service that is proposed to be endorsed and ensure that it must not be deceptive, the court noted.

"All the provisions including statutory provisions/rules, regulations and guidelines have a salutary object, which is to serve the consumers and ensure that they are made aware of the kind of product that is being offered for purchase, particularly in the food and health sector. We are of the opinion that the Ministries ought to set up and promote a mechanism which encourages the consumer to lodge a complaint and for the said complaint to be taken to its logical conclusion, instead of simply being marked/forwarded to the concerned State authority, thus leaving the consumer clueless as to the final outcome of the complaint made," the bench said.

Having noted the provisions of the Food, Safety and Standards Act, 2006, the court directed the Ministry of Health and Family Welfare to file an affidavit furnishing the relevant data with regard to the complaints received by the Food, Safety and Standard Authority of India and the action taken on such complaints relating to penalty for selling food not of the nature or substance or quality demanded (Section 50), penalty for sub-standard food (Section 51), penalty for misbranded food (Section 52), penalty for misleading advertisement (Section 53) and penalty for food containing extraneous matter (Section 54).

"FSSAI is authorised to take action on its own in the event such misleading advertisements coming to its notice, without waiting for any complaint to be received," the court noted.

The bench directed FSSAI to file an affidavit on nature of action taken by it on its own, besides on complaints received under the FSSA, 2006 from the year 2018 onwards and the action proposed to be taken by it to deal with misleading advertisements.

The court scheduled the matter stemming from a petition filed by Indian Medical Association against Yoga Guru Baba Ramdev and Patanjali Ayurved, for consideration on July 9, 2024.