New draft guidelines on advertising released
The government has come out with a comprehensive set of draft guidelines on advertising under which ‘disclaimers’ that are not easily noticeable by or legible or easily understandable to an ordinary consumer will be treated as misleading advertisements under the Consumer Protection Act. The violation of these guidelines would face action by the recently established Central Consumer Protection Authority. The draft guidelines, on which the Consumer Affairs Ministry has sought public comments by September 18, are applicable to companies whose products or services are advertised as well as to advertisement agencies and endorsers.
- According to the draft guidelines, a disclaimer should be clear, prominent enough and legible. “It should be clearly visible to a normally-sighted person reading the marketing communication once, from a reasonable distance and at a reasonable speed.”
- The disclaimers used in advertisements should be in “same language” as the claim of the advertisement, the font should be in the “same font” as the claim and place disclaimers on packaging in a “prominent and visible space”.
- If the claim is presented as voice over (VO), then the disclaimer should be displayed in sync with the VO.
- That apart, a disclaimer should not attempt to hide material information with respect to the claim, the omission/ absence of which is likely to make the advertisement deceptive or conceal its commercial intent. A disclaimer should not attempt to correct a misleading claim made in an advertisement.
- The draft guidelines also specify that an advertisement should not describe a product or service as “free”, “without charge” or other similar terms, if the consumer has to pay anything other than the cost while purchasing a product or service for delivery of the same.
- On those who endorse advertisements, the guidelines propose that they should take due care to ensure that all descriptions, claims and comparisons that they endorse or that are made in advertisements they appear in are capable of being objectively ascertained and are capable of substantiation.
- Endorsers should also take due care to ensure that an advert “does not convey … express or implied representations that would be false, misleading or deceptive if made by the trader or manufacturer or advertiser of the relevant product or service.”
- If an endorsement of a product or service is made through a testimonial, the guidelines propose that such endorsement should reflect the genuine, reasonably current opinion of the endorser, and should be based on either adequate information about or experience with the product or service being endorsed.
- The draft guidelines state that besides companies, even brand ambassadors will need to do due diligence to ensure that all “descriptions, claims and comparisons” made by products that they endorse or that are made in advertisements they feature in, are capable of being objectively ascertained.
- The draft guidelines also aim to address issues concerning misleading “bait advertising” and “surrogate advertising”.
- With regards to “free claims”, the proposed guidelines state that an advertisement cannot describe a product or service with terms such as “ free” or “without charge”, if consumers are required to “pay anything other than the unavoidable cost of responding to the advertisement and collecting or paying for the delivery of the item” .