LIGAL PROVISION ON M MISLEADING ADVERETISEMEMNT

Though advertising has a positive contribution to make, one needs to recognize that advertising has immense manipulative power and capacity to harm the consumer and the public interest.

Objective of Legal Control: The objective of regulating misleading advertising is to ensure that advertisements do not distort the facts about the product and mislead the buyer through subtle implications, omissions, and false statements about the quality, quantity, features or other characteristics of the product or any service accompanying the product, e.g., repair and maintenance.

Regulatory Measures: In view of its enormous capacity to harm the public and the consumer interest, unfair advertising is sought to be regulated in almost all major countries of the world. In India, statutory provisions for the regulation of misleading advertising are contained in the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act), and the Consumer Protection Act, 1986 (CPA).

Concept of Unfair Trade Practice: A UTP, in so far as it relates to advertising, refers to any unfair method or deceptive practice adopted for promoting the sale, use or supply of any goods, or for the provision of any service. Moreover, the following three advertising practices are particularly specified as unfair trade practices:• Making false claims and misleading advertisements.

• Offering of bargain prices or pseudo discounts

• Conducting of pseudo sales promotion contests.

Regulation of Misleading Advertising under MRTP Act: Under the MRTP Act, misleading or deceptive advertising is sought to be regulated by way of a 'cease and desist' order, or any other appropriate direction, issued by the MRTP Commission. Before passing such an order, the Commission is required to conduct an inquiry into the alleged misleading advertisement.

Surrogate Advertising: On September 8, 2000, the Central Government had announced a complete ban on the telecast of alcohol and tobacco advertisements in the country. The amendment to the Cable TV Networks (Regulation) Act, sought to prevent surrogate advertising. The Act prohibits all advertising which "directly or indirectly" promotes the production, sale or consumption of tobacco, cigarettes, and alcohol. Advertisements promoting synthetic baby food have also been banned.

Regulation of Advertising under CPA: Regulatory provisions of the CPA are to be enforced through the redressed of grievance by a three-tier, quasijudicial machinery, set up at the district, state, and the national levels. A complaint against any unfair trade practice can be filed before the appropriate consumer court by any consumer or a recognized consumers' association or the Central Government or the State Government. Consumer courts enjoy the powers of a civil court for purposes of hearing the cases filed before them.

In the case of a UTP, a consumer court can pass a 'cease and desist' order against the erring party, award a suitable compensation to the aggrieved person, and order the payment of costs incurred by the winning party in pursuing the case.

Regulation under Trade Marks Act: False and misleading advertisements may also attract regulatory measures provided in the Trade Marks Act, 1999 , any person who (1) falsifies any trademark or (2) falsely applies to goods or services any trademark, or (3) applies any false trade description to goods or services, shall be punishable with imprisonment and fine. These provisions are intended to prevent the use of fraudulent marks and thereby protect the interest of consumers as well as legitimate businessmen.

Regulation by SEBI: In order to protect the investor from unscrupulous practices of companies offering shares and debentures to the public, the Securities and Exchange Board of India (SEBI) has issued comprehensive guidelines. It is mandatory for such companies to make certain disclosures in their offer documents. The Guidelines on Advertisements contained in the SEBI Guidelines, 2000, provide that an advertisement for the issue of shares, etc., must be truthful, fair, and clear and should not contain any statement which is untrue or misleading.

Self Regulation of Advertising: The internal or self regulation of misleading and deceptive advertising is sought to be achieved through the machinery of the Advertising Standards Council of India (ASCI). ASCI has adopted the Code of Self Regulation in Advertising, which is intended to control offensive contents of advertisements. It seeks "to achieve the acceptance of fair advertising practices in the best interest of the ultimate consumer."

Conclusion:Though comprehensive legal framework for the control of unfair, deceptive, and misleading advertising in India exists, the practice continues almost unabated. Consumers and their organizations must assert their rights against unscrupulous businessmen indulging in such a practice and bring such cases to the notice of the enforcement agencies.