The Single Bench of the Delhi High Court in the case of Dabur India Limited vs The Advertising Standards Council of India consisting of Justice Manoj Kumar Ohri reiterated that there is no doubt that creative freedom with an element of hyperbole is permitted. However, there is a very thick line that divides harmless hyperbole and misleading claims made in advertisements, especially, when the products relate to human consumption and claims are made about the superlative qualities of the products on human health. It was further opined that the advertisement industry thrives on creativity and freedom of expression and would loathe a Government-dictated regulation.
Brief Facts:
This appeal was filed under O43R1(r) read with Section 104 of Code of Civil Procedure,1908 (“CPC”) vide which the Appellant (Plaintiff therein) assailed the order passed by the Trial Court whereby its application under O39 Rules 1 and 2 CPC was dismissed. The Appellant had filed the underline suit for declaration, permanent and mandatory injunction wherein it was claimed that it is a company having amongst other business of mass production of Ayurvedic Medicines. Besides ayurvedic medicines, it also manufactured and sold wellness/healthcare products including the product in question ‘Dabur Vita’ – a health food drink.
The Respondent is a voluntary self-regulatory council governed by its self-regulation code (ASCI Code) under which mechanism is available to deal with complaints against advertisements. It received a complaint from a third party against the use of claims like ‘India’s Best Immunity Expert’ and ‘No Other Health Drink Gives Your Child Better Immunity’ by the Appellant in their advertisement. It was alleged that the claims being superlative and comparative and without any adequate scientifically verifiable comparative studies, were violative of Guideline 1.4, Chapter-I of the ASCI Guidelines (Truthful and Honest Representation).
Procedural History:
Based on the observations of the Fast Track Complaints Panel (“FTCP”), ASCI, the impugned communication was issued by the Respondent. The payer for the injunction, against the said communication, sought by way of an application filed under O39 Rules 1 and 2 CPC was dismissed by the impugned order.
Contentions Made:
Appellant: It was contended that by boasting its product, the Appellant by no way can be held to have disparaged, denigrated, or defamed other products available in the market.
Observations of the Court:
The Bench noted that as per FTCP, the claims made by the Appellant were not backed by science. It was observed by FTCP that though the ingredients constituting the Appellant’s product were individually known to be immunity boosters however, their collective efficacy was yet not established, and the trials conducted by the Appellant on mice were found to be scientifically inadequate to claim the same results on humans. So, the Appellant must go through a process of clinical trials to empirically prove the claims made by it.
The Appellant had questioned the Respondent’s authority in the matter, being a voluntary society of its members of which, admittedly, the Appellant itself was a member. To this extent, it was noted that:
“The respondent acts as a self-regulatory body that the advertisement industry has set up for itself. The advertisement industry thrives on creativity and freedom of expression and would loathe a Government-dictated regulation. Not many industries enjoy a self-regulated regime. It would be unfair on the part of the appellant, who is a member of the respondent, to enjoy the privileges of self-regulation and in the same breadth question the authority of the respondent to enforce its code.”
The Bench further observed that the norms laid down by the Respondent had been recognized as an ‘advertising code’ and accorded legal sanctity in the Cable Television Networks Rules, 1994 (‘The Rules’). Rule 7(9) of the Rules provides that no advertisement which violated the code of self-regulation in advertising, as adopted by the Respondent shall be permitted to be carried in the cable service:
“Though the Rules do not apply to the advertisement in question as the same is not telecast on Cable TV and is restricted to the appellant’s website and social media, however, the sanctity accorded to the respondent’s code is established, only to answer the appellant’s contention apropos the respondent’s authority to enforce its code.”
Moreover, via the very emphatic and confident claim that ‘No other health drink gives your child better immunity,’ the customers were told that all other products in the market were inferior to the Appellant’s product. The intent was to run down the competition, that too, with a claim whose scientific basis had been doubted by FTCP.
It further opined, relying on Colgate Palmolive Company and Anr. case and Reckitt Benckiser (India) Limited case, that no doubt creative freedom with an element of hyperbole is permitted. However, there is a very thick line that divides harmless hyperbole and misleading claims made in advertisements, especially, when the products relate to human consumption and claims are made about the superlative qualities of the products on human health.
The decision of the Court:
The Bench concluded that there was no prima facie case that the Appellant could claim. Further, the balance of convenience too was against the Appellant. So, no ground for interference was made out with the impugned order passed by the Trial Court. The impugned order was upheld, and the appeal was dismissed.
Case: Dabur India Limited vs The Advertising Standards Council of India
Citation: FAO 323/2022
Coram: Hon’ble Mr. Justice Manoj Kumar Ohri
Advocates for Appellant: Mr. Jayant Mehta, Sr. Advocate with Ms. Kripa Pantid, Mohd. Sazid Rayeen, Mr. Christopher, and Mr. Raghav Bhatia.
Advocate for Respondent: Ms. Avni Singh.
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