January-20: COVER STORY

CERS takes advertisers to court for misleading advts 

We see advertisements everywhere, on TV, in newspapers, on various social media platforms, websites, mobile apps, and while playing games online. Advts may lure us to buy a product even if we do not need it. Many advertisers use celebrities to endorse products and make claims about their performance or benefits. Are all these claims true? What to do if they aren’t?

Consumer Education and Research Society (CERS), Ahmedabad has been working relentlessly against the menace of misleading advts for many years. Recognizing this work in a vital area of consumer protection, the Department of Consumer Affairs (DoCA), Govt of India, awarded us a Project on Misleading Advertisements. Under the project, CERS monitored and questioned several advts and successfully prevailed upon many advertisers to withdraw or modify those with misleading or false claims. 

In a few cases, CERS filed Class Action Suits against the advertisers. It is the first time in India that a consumer group has filed Class Action Suits against companies for misleading advts. We have prayed for remedial action by issuing a corrective advt and award of exemplary punitive damages in each case as a disincentive. CERS has also prayed that the companies be directed to refrain from further broadcast of the advt. The aim is to protect consumers from irresponsible advertising and to hold companies accountable for it. We give you a gist of some of these cases filed by CERS.

What is a Class Action Suit?

A class/collective/representative action is a lawsuit in which a single person or a small group of individuals represent the interests of a large group with common rights and grievances before the court. It is in this context that CERS together with the individual complainant has filed complaints related to misleading advts before the Consumer Disputes Redressal Commission.

Amazon delivers fake Lakme Eyeconic Kajal

Pritee Shah purchased a pack of two Lakme Eyeconic Kajal from Amazon by making online payment of Rs. 204. On receiving the product, she realized that it was a fake and immediately complained to Amazon. In response, the Amazon vendor Sublime sent her a replacement. Being a vigilant consumer, Pritee decided to pursue the matter further. She wanted Amazon to intimate all the other buyers about the fake product they had received. Use of the fake product on the eyes, a sensitive area, could cause serious health issues as its quality was suspect.

Amazon informed the consumers: “As a gesture of goodwill, Hindustan Unilever, the manufacturer wishes to send a free replacement of the product to all customers through Amazon”, not admitting that the earlier product was a fake. Moreover, Amazon did not take any legal action against Sublime for the unfair trade practice of selling spurious products. Ironically, the website of Amazon assures customers of “Genuine products – 100% original”!

Ultimately, CERS filed a Class Action Suit against Amazon. CERS appealed to the court to direct Amazon to recall Lakme Eyeconic Kajal and intimate all buyers that the product was a fake, give a public apology for supplying a spurious product, and give refund to all buyers. Amazon should also be awarded exemplary damages of Rs. 15 lakhs and should pay Rs. 25,000 to the complainant for mental pain and harassment.

Complan’s claim 2x faster growth busted

Mohit Oza saw an advertisement on the Complan website claiming: “The new best ever Complan and 2x faster growth”.  Impressed, he purchased a pack for his son aged nine years and started giving it to him daily expecting remarkable physical growth. He was disappointed that even after taking Complan for 60 days, his son did not show any noticeable growth. He later came to know that Advertising Standards Council of India (ASCI) had upheld CERS’s complaint against the Complan advt making these claims.

Mohit approached CERS for guidance. CERS agreed to file a Class Action on behalf of all those consumers who have been misled by the advt. The complaint has been admitted in the court against Heinz. Complan has now been acquired by Zydus Wellness.

Lifebuoy advt equated the soap to antiseptic cream

A class action suit has been filed against Hindustan Unilever Limited (HUL) for their misleading advt of Lifebuoy Haldi soap. The TVC featuring actors Ajay Devgn and Kajol, shows a teenage girl with abrasions on hand being told by Ajay Devgn to apply antiseptic cream so it does not get infected. Kajol stops him saying “Nahi infection se pehle naya lifebuoy haldi”. She puts on a doctor’s coat and says “we use haldi on bruises because haldi fights germs that cause skin infections. Lifebuoy Haldi gives protection from infection causing germs.”

CERS had earlier complained to ASCI questioning the amount of Haldi present and ASCI upheld CERS’s complaint. It noted that the TVC depicted the presence and antibacterial benefits of turmeric very strongly through visuals on the pack. Also, Kajol saying “Nahi” to Ajay Devgn’s suggestion to use an antiseptic cream contradicted the advertiser’s assertion that they did not dissuade the use of an antiseptic cream in any manner.

Meanwhile, a consumer, Kashmira, told us she bought the soap impressed with the TV advt, but later realised her mistake. She requested CERS to take action against the company. Understanding the seriousness of the impact of such a misleading advt, CERS filed a case asking for exemplary damages from the company.

Horlicks continues to make misleading claim

The Horlicks advt claimed that the product improves attention and concentration of kids and helps them be fearless in the exam season. A mother, Omana, wanted the best for her son and started giving Horlicks to her son every day during exams. When she did not find any improvement in her son’s concentration, attention or confidence, she was dejected. Being a rights conscious consumer, she reported the matter to CERS.

CERS had complained about a similar advt of Horlicks in 2015. ASCI, while upholding the complaint, had held that the advt suggested that consumption of Horlicks could be initiated at exam times, for better concentration. That was misleading by ambiguity as consumption over a long period was necessary for efficacy. Since the advertiser still continues to make the claims, CERS decided to file a Class Action case against the advertiser, Glaxosmith Kline Pharmaceutical Limited, on behalf of all the aggrieved consumers.

Are Maggi Atta Noodles “Nutri-licious”?

CERS filed a Class Action case before the consumer court against Nestle India Ltd for the misleading advt of Maggi Nutri-licious Atta Noodles. The advt, viewed by Anusha Iyer, claimed that the product contains “fibre of 3 rotis” and is “packed with veggies”. Receiving Anusha’s complaint, CERS tested the product for these claims at an NABL accredited laboratory. The tests revealed that the product had only 5.63g of fibre against the labeled 6g. On calculations based on Indian Food Composition Tables (2017) NIN, ICMR, three rotis should have fibre of approximately 10.2 g. Hence, the claim of containing fibre of 3 rotis was found to be false.

The tests also revealed that the noodles had very high sodium content (985 mg/100g) as against the UK Food Standard Agency (FSA) standard (more than 550mg/100g in a product is considered to be high). It is known that high sodium (salt) is not good for health.  The claim of the product being nutri-licious, which suggests that the product is delicious as well as nutritious, is false and misleading.

LÓreal’s Garnier Micellar Cleansing Water endorsed by Alia Bhatt disappoints users

The TVC shows clips of Alia Bhatt and two other girls applying lipstick, eye and face makeup saying that they love it. But cleanup is so tough. Then Alia tells her secret of cleaning up makeup: “Use Garnier Micellar – pour, press, swipe; Makeup off in just one swipe”.

CERS questioned the claims in its complaint to ASCI, which upheld the complaint. It observed that the claim was not substantiated and was likely to lead to grave or widespread disappointment in the minds of consumers.

To test the performance of the product, Rashmi Goyal purchased it and found that, contrary to the claims in the advt, it took vigorous scrubbing and additional pouring of the product on a cotton swab to remove the kajal and lipstick. The claim “no harsh rubbing” made on the pack also proved to be false. Further, for complete removal of makeup residue, a face wash had to be used and therefore the claim “no makeup residue” was also false. Based on the complaint by Rashmi, CERS took the initiative to file a case against L’Oreal.   

At the time of going to press, 3 companies – Amazon, Nestle and L O’real – have filed their written defences in which they have denied the allegations. Response from other companies is awaited.