Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 – Part 2

Continuing from Part 1 where we introduced the Guidelines and discussed bait advertising, surrogate advertising, and free claim advertising, in Part 2, we discuss the provisions related to advertisements targeting children and disclaimers in advertising.

Keeping in view the sensitivity and vulnerability of children and the severe impact advertisements make on the younger minds, several preemptive provisions have been laid down regarding advertisements targeting children. According to Section 8 of the Guidelines, an advertisement that addresses, targets or features children shall not:

1. condone, encourage, inspire or unreasonably emulate behavior that could be dangerous for children
2. take advantage of children's inexperience, credulity, or sense of loyalty;
3. exaggerate the features of goods, products, or services in such manner as to lead children to have unrealistic expectations of the advertised goods, products, or services;
4. condone or encourage practices that are detrimental to children's physical health or mental wellbeing;
5. imply that children are likely to be ridiculed or made to feel inferior to others or become less popular or disloyal if they do not purchase or make use of such goods, products or services;
6. include a direct exhortation to children to purchase any goods, product, or service or to persuade their parents, guardians, or other persons to purchase such goods, products, or services for them;
7. use qualifiers such as ‘just’ or ‘only’ to make the price of goods, products or services seem less expensive where such advertisement includes additional cost or charge;
8. feature children in advertisements prohibited by any law including tobacco or alcohol-based products;
9. feature personalities from the field of sports, music, or cinema for products that under any law requires a health warning for such advertisement or cannot be purchased by children;
10. make it difficult for children to judge the size, characteristics, and performance of advertised products and to distinguish between real-life situations and fantasy;
11. exaggerate what is attainable by an ordinary child using the product being marketed;
12. exploit children’s susceptibility to charitable appeals and shall explain the extent to which their participation will help in any charity-linked promotions;
13. resort to promotions that require a purchase to participate and include a direct exhortation to make a purchase addressed to or targeted at children;
14. claim that consumption of a product advertised shall have an effect on enhancing intelligence or physical ability or bring exceptional recognition without any valid substantiation or adequate scientific evidence;
15. claim any health or nutritional claims or benefits without being adequately and scientifically substantiated by a recognized body;
16. be published in any mass media, including advertisements on network games in respect of medical services, drugs, dietary supplements, medical instruments, cosmetic products, liquor, or cosmetic surgery which are adverse to the physical and mental health of children.

A bare perusal of Section 8 would indicate that the Guidelines conform to the Advertising Standards Council of India (ASCI)’s Code. Section 3.2 of the ASCI Code provides that advertisements addressed to children shall not contain anything, whether in illustration or otherwise, which might result in their physical, mental or moral harm or which exploits their vulnerability. Section 8(b) of the above Guidelines is linked to Section 1.5 of the Code which states that advertisements shall not be so framed as to abuse the trust of consumers or exploit their lack of experience or knowledge. Similarly, clause (c) above is associated with Section 1.1 of the Code which states that advertisements must be truthful and that all descriptions, claims, and comparisons, which relate to matters of objectively ascertainable fact, should be capable of substantiation.

Recognizing the importance of body positivity in children given the unrealistic standards set by social media, the Guidelines also prescribe that an advertisement that addresses or targets children shall not be as to develop negative body image in children, or, give an impression that the advertised goods, products, or service are better than the natural or traditional food which children may be consuming. Further, going forward, an advertisement for junk foods, including chips and carbonated beverages shall not be allowed to be advertised during a program meant for children or on a channel meant exclusively for children.

Next, Section 11 of the Guidelines relates to disclaimers in advertising. Disclaimers play a pivotal role from a consumer perspective since in a way they limit the responsibility of the company. Therefore, the Guidelines stipulate that while a disclaimer may expand or clarify a claim to resolve ambiguities, it shall not contradict the material claim or the main message conveyed in the advertisement, attempt to hide material information, or correct a misleading claim. Further, it provides that, a disclaimer shall be in the same language and font as the claim made in the advertisement.

In a 2020 Survey conducted by LocalCircles, when asked, 65% of consumers said disclaimers in advertisements (whether on TV, in print, on the radio, or on digital media) were very difficult to view, hear or read. Consumers complained that the disclaimers are spoken or shown so fast as if brands do not want them to read or hear them.

With a view to remedy this, the Guidelines describe that if the claim is presented as a voice-over, the disclaimer shall have to be displayed in sync with the voice-over and at the same speed as that of the original claim made in the advertisement. Supported by the 2016 Guidelines of ASCI for Disclaimers Made in Supporting, Limiting, or Explaining Claims Made in Advertisements, Section 11 of Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 further clarifies that the placement of the disclaimer and how it shall be presented.

We will continue our discussion on the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 in Part 3, where we discuss the duties of the manufacturer, service provider, advertiser, and advertising agency and the due diligence required for endorsement of advertisements.

Citations:

[1] https://pib.gov.in/PressReleasePage.aspx?PRID=1832906

 [2] https://www.localcircles.com/a/press/page/misleading-ads-survey#.Yqdi1ahBy5d