Profits over Pandemic: False Advertising in the COVID-19 Scenario
Author: Tamanna Gupta
RGNUL, Punjab.
ISSN: 2582-3655
“All our advertising is propaganda, of course, but it has become so much a part of our life, is so pervasive, that we just don’t know what it is propaganda for”
-Pauline Kael
Abstract
Advertisements, while originally meant to display the utilitarian aspect of a product, have gone beyond the call of duty in the present scenario, and have become a form of imposition on the human mind. Advertisements in the bygone era began innocuously, meant solely to display the features and specificities of products, but in the contemporary era, adverts are omnipresent and all-encompassing. Advertisers now resort to toying with sentiments such as emotions, fear, and insecurities in order to sell their products. There is no way to hammer out a solution for responsible advertising, as companies and firms will circumvent the guidelines laid down for advertising in some way or the other.
The outbreak of COVID-19, which originated in December 2019, at Wuhan, China, has complicated the advertising matrix even further, with advertising companies trying to cash in on the fear created by the pandemic. Several companies are now sending social messages in their adverts, linking the product in question with COVID-19 in some way or the other. Taking a step further, several advertisers have claimed that their products can miraculously cure or reduce the symptoms of COVID-19. This has lead to a deluge of adverts that are false and misleading in nature. While the government and other regulatory bodies have stepped up, further action needs to be taken. This article analyses the actions taken by several authorities to curb this malpractice and suggests further changes that can be undertaken to strengthen existing agencies, in order to curb this menace.
Introduction
The COVID-19 outbreak has not only toppled economies and disrupted human activities worldwide, but has also negatively affected businesses. In order to cope with the economic losses induced by the pandemic, several advertisers have resorted to portraying their products as a panacea for COVID-19, claiming that their products are effective in curing or reducing the symptoms of the deadly strain of novel coronavirus. Presenting their products as an elixir, such advertisers dupe several trusting customers who further internalize dangerous ideas about the cure of COVID-19, which can mislead customers from seeking medical interventions, and directing their attention towards such unreliable, untrustworthy and deceptive claims.[1]
The target audience for such advertisements is generally huge sections of the general population who lack the requisite sense of judgment in order to distinguish between true and false claims, which leads to serious risk of such persons buying or utilizing such products, which can pose as a health hazard. While several legislations are already in place in order to combat the problem, several advertisers are sending implied messages along with the products, displaying them as a cure for COVID-19. This article analyses the actions taken by several authorities to curb this malpractice and suggests further changes that can be undertaken to strengthen existing agencies, in order to curb this menace.
Status Quo: Unethical Advertisements
Despite the gravity and seriousness of the all-encompassing pandemic, contemporary advertisers are holding on for dear life, when it comes to using the topic of COVID-19 in their advertisements, mostly in order to present a relevant front to its consumer base and to increase revenue by presenting their product in relation to COVID-19. While some advertisers using COVID-19 sentiments right off the bat to promote their products have done so innocuously, several advertisers have recklessly promoted their product as a cure for COVID-19, hence falling under the scanner, leading to subsequent proceedings against them.
In recent times, a mattress manufacturing company and an Ayurveda medical firm were at the receiving end of such action, when the Maharashtra government registered a case against both the firms separately for depicting false advertising claiming their respective products as a cure for COVID-19. While the offenses against the mattress manufacturing firm have been filed at the Napoli police station, the Ayurveda company was charged at Mulund police station.[2] It has been stated by the government, that the head of Arihant mattresses claimed in an ad in a leading Gujarati daily, that Arihant mattresses are “Anti-coronavirus” mattresses. The Ayurveda company in question had claimed that consuming its products helps in curing COVID-19. The government official stated that action shall be taken against both companies, further cautioning people not to be lured by such advertisements.[3]
Several ads projecting “gaumutra” as a cure for COVID-19 have also been going viral over internet platforms, leading to further misinformation. It has been reported that the state of Gujarat has witnessed a marked increase in the consumption of cow urine, in lieu of testimonies by several politicians and small Ayurveda companies about the efficacy of the same in curing COVID-19. This trend is disturbing, considering the fact that there is no proven study stating that any natural substance, including “gaumutra”, is a proven cure for COVID-19. Subsequently, reports surfaced of people falling ill after consuming cow urine at an event in Kolkata.[4] In another case, Mr. Davinder Dev, who claimed to be an insurance agent, solicited customers to buy insurance policies under the garb of COVID-19, misrepresenting the nature of the insurance policy by relating it with COVID-19, when there was no proven relationship between the two.
Social Media Giants like Facebook has also sprung into action, and in order to combat the malaise of fake and deceptive advertising, filed a lawsuit against an Indian national who headed a software company responsible for deceptive advertisements related to COVID-19, coupled with fake news, unverified cures and other unreliable information related to COVID-19. The said company successfully circumvented ad filters and review processes, posting such content.[5]
Recently, a former Apprentice contestant’s claims in an ad about Vitamin C rehydration sachets as a cure for COVID-19 also came under fire, subjecting the former Apprentice contestant, Daniel Elahi, to a volley of abuse from several quarters. The said ad has now been taken down both from Facebook and Instagram. Such instances are symptomatic of the contentious and unsolved issue of false advertising.[6]
Turning Point: Government Crackdown on Advertisers
However widespread the prevalence of misleading and false COVID-19 related advertisements are, the government has been a step ahead when it comes to cracking down on such advertisers, which has in turn prompted several authorities to take action against such advertisers. Taking note of a false and misleading advert that appeared in a local newspaper, police recently filed a case against Mr. Davinder Dev, who claimed to be an insurance agent and hence solicited customers to buy insurance policies under the garb of COVID-19. Several provisions of the Indian Penal Code and the Disaster Management Act were invoked against Mr. Dev, for soliciting customers by misrepresenting the nature of the insurance policy by aligning it with COVID-19, where no such relation existed.
The Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha, and Homeopathy (AYUSH), in its correspondence with all states, and Advertising Standards Council of India (ASCI), directed the nodal agencies to report instances of, and take action against misleading, false and deceptive ads with relation to COVID-19. A notification released by the ministry stated that in the present context, it is imperative to take action against wrongdoers in order to maintain public safety.[7]
Several nodal agencies are working with the Advertising Standards Council of India in order to take action against such alleged offenders.
The Advertising Standards Council of India (ASCI) has already directed the removal of false claims of ads claiming cure or reduction of COVID-19 symptoms, such as the adverts of Dr. Batra (Homeopathy clinic) and Arihant Mattresses.[8]
Reports surfaced stating that the Secretary of Advertising Standards Council of India (ASCI) is looking into erroneous claims, and appropriate action will be taken.
In the present scenario, it is clear that the respective state governments cannot micromanage and curb false and erroneous adverts relating to COVID-19. While the Advertising Standards Council of India (ASCI) has stepped in to take action, the status of the Advertising Standards Council of India (ASCI) is not backed by any legislation, and hence ineffectual in the long run.
Legislative Gamut: Indian Scenario
India has laid down a comprehensive framework laying down the rules and regulations regarding production, dissemination and coverage of advertisements on televisions and in print media, amongst other mediums.
Several legislations such as the Press Council Act 1978[9], Cable Television Networks Rules 1994[10], The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954[11], and The Advertising Standards Council of India (ASCI) Code Book[12] lay down rules, regulations and guidelines for specific categories of ads.[13]
In the COVID-19 scenario, the following provisions[14] can be invoked in order to hold advertisers liable-
| Act | Section | Provision |
| Press Council Act, 1978 | 14 | Lays down the power to censure an advert on receipt of complaint.[15] |
| Cable Television Networks Rules, 1994 | 7(5) | The Advertising Code lays down specifications that need to be met in order to air an advertisement. Sub section (5) further states that no advertisement shall contain references that leads to an inference that its ingredients have miraculous or supernatural properties to cure ailments.[16] |
| The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 | 5 | Entitled “Prohibition of Advertisement of Magic Remedies for treatment of certain drugs and disorders”, it states that no advertisements can be circulated which purport a cure for any disease or ailment, subject to several considerations.[17] |
WhileThe Advertising Standards Council of India (ASCI) is also a major stakeholder when it comes to regulating advertisements, the fact that it is a self regulatory mechanism impairs the powers accorded to it, to curb such advertisements. Advertising Standards Council of India (ASCI) has a code, called Advertising Standards Council of India Code Book, which states in its preamble that the provisions of the code are meant to complement the existing laws in advertising. The Cable Television Networks Rules, 1994 summarily mentioned that Advertising Standards Council of India Codebook guidelines may be invoked for the purposes of prosecution. The relevant guidelines of the codebook[18] are as follows-
- Chapter 3 of the Codebook lays down guidelines for specific categories of ads, which includes several categories under which false advertising can be done.
- Chapter 5 of the Codebook lays down Complaint Procedure, stating that complaints may be made by public, members of an industry, or can be taken up suo-moto.
- Chapter 6 lays down the procedure for processing complaints.
- Chapter 8 lays down the “Consumer Complaints Council” meeting procedure. Consumer Complaints Council is a body created by ASCI for speedy disposal of complaints.
Several other provisions of the codebook lay down rules and regulations for the process and procedure for advertisements. However, it must be noted that ASCI’s Consumer Complaints Council’s decisions can easily be challenged in a court of law, and are not legally binding (unlike a court’s decision) thus casting a shadow on the powers ASCI wields in the present context. Several Consumer Complaints Council has been challenged in the court of law, and have been effectually overturned, thus further eroding the strength of ASCI vis-à-vis other legislations such as the Press Council Act 1978, Cable Television Networks Rules 1994, The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954.
The Way Forward: Requisite Changes in Advertising Spectrum
The Advertising Standards Council of India (ASCI), established in the year 1985, is a self-regulatory voluntary mechanism, registered under Section 25 of the Indian Companies Act as a not-for-profit company. The Supreme Court, in Common Cause (A Regd. Society) v Union of India and Ors. (2017) W.P. No. 114/2014, recognized the self-regulatory mechanism laid down by ASCI, hence according its legal status. ASCI has also partnered with and has been recognized by the Department of Consumer Affairs-Government of India, Food Safety and Standards Authority of India (FSSAI), etc. It has entered into agreements with government departments in order to regulate consumer affairs. ASCI’s code regarding self-regulation in advertising has been referred to in Indian Norms of Journalistic Conduct 2010. ASCI has also been a part of several high power committees aimed at drafting policies for the general population.
However, it has not been formally recognized as a statute vis-à-vis other legislations, and hence stands as a toothless tiger in the present scenario. The Non-statutory status of ASCI poses several challenges that affect compliance with the directives etc. While the government has partnered with ASCI when it comes to clamping down on such miscreants, the government should accord legal recognition to ASCI, and accord it wider powers under legislation in order to curb the menace of false COVID-19 related advertisements. Granting legal recognition to ASCI shall go a long way in regulating the advertising gamut in India.[19]
Conclusion
While the government already has a comprehensive mechanism in place by way of numerous legislations, it has been observed that such legislations are ineffectual in tackling the false advertisements, deceptive adverts, and misinformation related to COVID-19.
While the Advertising Standards Council of India (ASCI) is taking action against such alleged offenders, more needs to be done in order to strengthen the position of ASCI, the backbone of the compliance mechanisms in India at present.
If the government grants statutory recognition to ASCI, ASCI shall have increased powers in order to tackle offenders in the advertising domain. COVID-19 should also serve as a wake-up call to companies and firms that engage in shady and deceptive advertisements tacking on to a grave and serious illness in order to make commercial gains. Urgency must be displayed by several nodal agencies in curbing such practices, in order to ensure public safety in the longer run. Only then shall COVID-19 be effectively handled.[20]
[1] Pushpa Girimaji, As COVID-19 peaks, beware of advertisers peddling false claims regarding the virus, HT India, May 03, 2020.
[2] PTI, Coronavirus outbreak: Two pvt firms booked for false claims of COVID-19 cure, IT India, March 19, 2020.
[3] PTI, Two booked for ‘misleading’ advertisements about COVID-19 in newspaper, TI India, May 04, 2020.
[4] Web Desk, Gujarat sees increased demand for cow urine amid COVID-19 scare, theweek.in, April 02, 2020.
[5] PTI, Facebook sues Indian Techie for Running Deceptive Ads, COVID-19 Fake News, NDTV.com, April 10, 2020.
[6] Coronavirus: Apprentice Star’s firm rebuked over COVID-19 ads, bbc.com, May 27, 2020.
[7] Ratna Bhushan, Govt clamps down on misleading ayurveda ads, IT India, April 04, 2020.
[8] Supra Note 3.
[9] The Press Council Act, 1978, Act No. 37 of 1978.
[10] The Cable Television Networks Rules, 1994.
[11] The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954, Act No. 21 of 1954.
[12] The Code for Self Regulation, Advertising Standards Council of India.
[13] Rupin Chopra, Rise in False and Misleading Advertisements Amidst Coronavirus Outbreak, Mondaq.com, May 13, 2020.
[14] Pushpa Girimaji, Fighting COVID-19: Don’t be misled by ads, TI India, May 17, 2020.
[15] Section 14,The Press Council Act, 1978, Act No. 37 of 1978.
[16] Section 7(5),The Cable Television Networks Rules, 1994.
[17] Section 5,The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954, Act No. 21 of 1954.
[18] The Code for Self Regulation, Advertising Standards Council of India.
[19] TFE, Virulent Ads: Give ASCI more teeth against misleading corona-related ads, FE India, March 19, 2020.
[20] Ibid.