What are Disingenuous Advertisements?

An advertisement is a promotional tool used by producers/sellers in order to announce and make known to the people about their product. It is a promotional tool through which information about the product is broadcasted and reaches the potential buyers of the product/service. Many buyers make their decisions of buying a particular product or hiring a particular service on basis of the information they derive from these advertisements.

A disingenuous advertisement is an advertisement that is not sincere or an advertisement that is not straightforward. Therefore a disingenuous advertisement can be understood as an advertisement that is misleading and dishonest. 

According to Section 2(28) of the Consumer Protection Act, a misleading advertisement is one:

• Which describes the product or service falsely. This means that the description of the product in the advertisement does not match the actual product. 
• Which is likely to mislead the product, that is, it may confuse the consumers with respect to the description, use, quality, quantity, etc. of the product.
• That makes a representation, which, if made by a manufacturer or seller shall amount to unfair practices.
• Hides important information which may affect the buying decisions of the consumers.

Some examples of disingenuous advertisements are:

• Falsely advertising diesel cars as environment-friendly cars.
• Advertising an energy drink as some super drink/tonic.
• Stating that their shoes help in losing weight.

Disingenuous advertisements can thus lead to harm to the interests of the consumers as one who makes their decisions on such advertisements is surely being misled. 

Therefore, in order to protect the interests of consumers, several provisions have been brought into effect in order to make sure that the interests of the consumers are protected.

Consumer Protection Act, 2019

The Consumer Protection Act, 2019, as the name suggests, is an act that had been brought into effect to protect the interests of the consumers and for the establishment of authorities and offices for effective and efficient consumer grievance redressal. It has provided several provisions which prevent misleading advertisements and also provide for simplifying the grievance resolving procedure. 

Misleading advertisements are classified as unfair trade practices and Section 89 of the act provides for penalty and punishment for indulging in such practices.

According to Section 89, anyone who is guilty of indulging in the unfair practices of misleading advertisements shall be liable for a penalty exceeding up to Rs. 10 lakhs and imprisonment up to 2 years. For a subsequent offence of the same nature, one shall be liable for a fine extending to Rs. 50 Lakhs and imprisonment exceeding up to 5 years.

Section 10 provides for the establishment of a Central Consumer Protection Authority. This section states that the government shall ensure the establishment of a Central Authority for the protection of the interests of the consumers. It would deal with matters like a violation of consumer rights, false misleading advertisements and unfair practices. Therefore the Central Consumer Authority is the authority established by the government for matters relating to misleading advertisements.

Section 16 provides for the power of the District Collector. The District Collector can investigate matters relating to misleading advertisements and after thorough investigation submit the report to the Central Consumer Protection Authority.

Section 17 relates to the above provision as it states that any complaint about unfair trade practices/ misleading advertisements that have been made to the Central Consumer Protection Authority can forward those to the District Commissioner for investigation.

Section 18 provides the powers and also the functions of the Central Consumer Protection Authority . Section 18(1)(c) states that the Central Consumer Protection Authority  shall ensure that no misleading advertisements are made that are in violation of the rights of the consumers and regulations provided under this act.

Section 39(1)(l) provides that if the claims of misleading advertisement have been proved after sufficient investigation and trial, they shall order for a corrective advertisement at the cost of the responsible party to be issued. This is done so that the misleading effect caused by such disingenuous advertisement is neutralized.

According to Section 19(1), the Central Consumer Protection Authority has the power to direct the District Commissioner to conduct an investigation on matters which relate to a violation of consumer rights, unfair trade practices or misleading advertisements. Such an investigation may be done on receiving directions from the Central Government or own the Central Consumer Protection Authority’s own motion. They shall first conduct a preliminary inquiry and if they’re satisfied that a case of misleading advertisements exists, they shall order a complete investigation.

The Central Consumer Protection Authority can issue directions and penalties for misleading advertisements by virtue of Section 21. 

1. When the Central Consumer Protection Authority is convinced that the advertisement in question is misleading, they shall order/direct the trader/manufacturer to stop the broadcast of that advertisement. They may also ask him to modify the advertisement so as to make sure it’s not misleading.
2. If the Central Consumer Protection Authority feels that a penalty is necessary, a penalty exceeding Rs. 10 Lakhs shall be imposed. In case of a subsequent offence of the same nature, a penalty exceeding 50 Lakhs shall be imposed.
3. The Central Consumer Protection Authority may also prohibit the endorser from the endorsement of any product/service for a period of one year. In case of subsequent violation, the Central Consumer Protection Authority may prohibit the endorser from endorsing any product or service for a period extending to three years.
4. The Central Consumer Protection Authority shall impose a penalty of Rs. 10 Lakhs to the publisher of such advertisement.
5. If the endorser of such product has exercised due diligence in order to verify the facts which have been stated in such advertisement, they shall not be liable under subsections (2) and (3).

Conclusion

Disingenuous or misleading advertisements are a form of unfair trade practices. Such advertisements are prohibited by The Central Consumer Protection Authority which has been established in order to protect the interests of the consumers. In case a manufacturer or trader does indulge in such practices, the Consumer Protection Act, 2019 provides for the powers and procedure for an action to be brought against such endorsers.

The author is Om Gupta, a first-year law student pursuing BBA-LLB from the University School of Law and Legal Studies.

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