Misleading Advertising may Go Nowhere

On 14 June 2012, the Advertising Standards Agency (ASA) – the UK’s independent regulator of advertising across all media – published this ‘quick guide’ to assist brand owners in avoiding the common pitfalls of misleading advertising.  If an advertisement is likely to deceive consumers (by including ambiguous or false information, or omitting important information), and is likely to cause consumers to take transactional decisions they would not otherwise have taken (for example purchasing a product or visiting an advertiser’s website), they will be deemed misleading by the ASA.

Advertisers should therefore ensure they can substantiate any claims before they make them (other than claims which are obvious exaggerations and which are unlikely to be taken literally by the average consumer), and be as clear and honest in communications as possible.  Advertisers are also responsible for substantiating claims made in testimonials, and must hold documentary evidence and contact details for people providing the testimonials.

The Confederation of Indian Industry (CII) in its very recent whitepaper, entitled ‘Self-Regulation in Advertising in India — A Critical Evaluation’, has suggested that Advertising Standards Council of India (ASCI) co-regulate ad content along with bodies like Department of Consumer Affairs (DCA), Food Safety & Standards Authority of India (FSSAI) and Ministry of Information & Broadcasting, among others.

The whitepaper is in response to growing concerns of false and misleading advertising, which leads to unfair competition, litigation and increased resentment among consumers. Inevitably, there has been heated debates on whether the advertising industry needs to be muzzled, and how, to protect the legitimate interests of consumers. The paper also analyses the issue from an independent point of view, and evaluates the role and responsibilities of stakeholders such as regulators, industry bodies, activists and consumers. It also takes into consideration concerns raised by the DCA and the Ministry of Consumer Affairs, Food and Public Distribution seeking greater (and more stringent) government intervention.