Supreme Court Mandates Self-Declaration for All Advertisements to Combat Misleading Claims
In a landmark ruling aimed at safeguarding consumers from deceptive marketing practices, the Supreme Court of India has issued a comprehensive order requiring advertisers to submit a self-declaration before publishing any advertisement. This directive, delivered on May 7, 2024, establishes a new framework to ensure that advertisements do not contain false or misleading claims, particularly in the sensitive sectors of health and fast-moving consumer goods (FMCG).
Constitutional Authority and Consumer Rights
The Court invoked its powers under Article 32 of the Constitution to enforce the fundamental right to health, which includes the consumer's right to accurate information about products. The Bench, comprising Justice Hima Kohli and Justice Ahsanuddin Amanullah, emphasized that existing regulatory mechanisms have failed to curb the proliferation of fraudulent promotions, creating a vacuum that the judiciary must fill.
The Court stated: "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."
Background and Scope of the Case
The order emerged from the ongoing case of Indian Medical Association v. Union of India (W.P.(C) No. 645/2022), initially filed by the Indian Medical Association to address misleading medical advertisements. Over time, the Court expanded its scrutiny to examine the entire advertising ecosystem in India, involving multiple government bodies such as the Ministry of AYUSH, Ministry of Health, Government of Consumer Affairs, Government of Information and Broadcasting, and state licensing authorities.
The Court's analysis revealed significant gaps in enforcement, with numerous complaints filed through the Grievances Against Misleading Advertisements (GAMA) portal and under the Central Consumer Protection Authority (CCPA) guidelines receiving inadequate action. Statistics presented showed that between 2018 and 2024, over 1,600 complaints were lodged against broadcasters, yet only a fraction resulted in meaningful enforcement.
Key Directives and Implementation
To address these systemic failures, the Supreme Court issued several critical directions:
- Self-Declaration Requirement: Advertisers must now submit a self-declaration affirming that their advertisements comply with the law and do not contain false or misleading statements before they are printed, broadcast, aired, or displayed.
- Operational Portals: For television and broadcasting, declarations must be uploaded to the Broadcast Sewa Portal. A new dedicated portal for print and internet advertisements must be established within four weeks.
- Binding Effect: The ruling, declared under Article 141 of the Constitution, has nationwide legal force, making it mandatory for all advertisers and endorsers.
The Court also addressed the role of celebrities and influencers, warning that they share equal responsibility for promoting misleading products. It highlighted CCPA Guideline 13, which requires endorsers to conduct due diligence and have sufficient knowledge of the products they promote.
Regulatory and Enforcement Concerns
The Bench expressed deep dissatisfaction with the enforcement record of various ministries, noting that consumers often face bureaucratic hurdles without receiving effective remedies. The Court observed: "It is said that the consumer is a king. There has to be some answerability from some agency… Consumer should have a remedy. If there is a system in place, that should work."
Additionally, the Court directed the Ministry of AYUSH to withdraw a 2023 administrative letter that had paused enforcement of Rule 170 of the Drugs and Cosmetics Rules, emphasizing that executive instructions cannot override statutory laws.
Broader Implications for Consumer Protection
This ruling reframes misleading advertisements as a serious consumer rights issue directly linked to public health and societal trust. By mandating self-declarations and strengthening accountability for advertisers, endorsers, and regulators, the Supreme Court aims to transform the advertising landscape in India.
The decision underscores that in today's market, the right to health inherently includes the right to truthful information, setting a precedent for future consumer protection initiatives. As the Court noted, this measure serves as a "tide over" solution until more robust enforcement structures are implemented, marking a significant step toward empowering consumers and ensuring transparency in advertising.
