MISLEADING CLAIMS IN FOOD ADVERTISEMENTS AND LABELS: LEGAL IMPLICATIONS UNDER INDIAN LAW
“Our kids are bombarded by ads for junk food and sugary drinks — and it’s no accident. It’s an unfair and deceptive practice to target children and their parents with misleading claims about health and nutrition. We need to hold food companies accountable and ensure they promote products that are genuinely good for our families.”[1] The world of food advertisements is full of catchy slogans, colorful packaging and marketing sugar filled, highly processed fatty foods as ‘healthy’. These fake and misleading claims often lure consumers into believing that these unhealthy packaged items are the ‘healthy and tasty’ alternatives for their satisfaction. This article focuses on the critical analysis of such claims along with an overview of consumer rights and sovereignty, and to discuss about the legal consequences of such advertisements and labels under Indian Law.
Consuming nutritious food is one of the essentials for maintaining personal overall health and well-being. The practice of promoting such foods which do not match the claims made in its advertisement is a misleading and fraudulent act by the marketers. “Food Advertisements Boon or Bane: A Prevalence Study of Misleading Food Advertisements in India”[2] is a study from 2017 in which 1,200 food related advertisements across various medias were surveyed. It was revealed that almost 60% of these advertisements were found misleading, among which 90% ads promoted foods which were high in fats, salt and sugar (HFSS). It was also found in this study that such advertisements often included gifts (57%), endorsements through celebrities (19%), claiming false outcomes (14%), and using cartoons to appeal to children (10%). This study encouraged the need for consumer education. The Nutrition Advocacy in Public Interest (NAPi) prepared a report which was covered by The Print media[3] in 2023. The report was prepared on a detailed analysis of 43 packaged food items commonly consumed in India, and it says that the products exceeded the recommended levels of salt, sugar and fats. This report highlighted the violations of the Consumer Protection Act, 2019[4], prohibiting false or misleading advertisements that harm consumers, and for omitting necessary nutritional information.
Mondelez India Foods Pvt. Ltd. & Ors. VS Mr. Revant Himatsingka is an ongoing legal proceeding in Delhi High court in which a health influencer Revant Himatsinghka known as “Food Pharmer” posted an online video highlighting the issue of high sugar content in a popular “health” malt drink produced by Mondelez India. It was claimed in the video that the drink contains 50% sugar despite the company advertises it as a health drink for children. In response, Mondelez India filed a law suit against Himatsinghka and alleged that he had made defamatory statements about the company’s malt drink ‘Bournvita’. Following the buzz created by the influencer, The National Commission for Protection of Child Rights (NCPCR) sent a notice to the company to remove unscientific claims on the packaging of their product.[5] Similarly, a report by Swiss NGO Public Eye and the International Baby Food Action Network (IBFAN) revealed that Nestle’s baby products have differences in the ‘added sugar’ content across different nations. The Indian Council of Medical Research (ICMR) recommends that babies should have no added sugar in their diet. Nestle advertises its baby food as ‘healthy’ for the toddlers but the high amount of added sugar content reveals something different.
These matters are, and, have been a major issue in the packaged food industry from a long time as these types of misrepresentative claims significantly influence the consumer behaviour and their purchasing decisions. In India, The Advertising Standards Council of India (ASCI) is a self regulatory body that supervises the advertising standards in India and provides the guidelines for the advertisements to ensure that the benefits and features that are claimed by the advertisers are not deceptive. ASCI also ensures that the advertisements of food products are not exaggerating the benefits or making some unverified claims. To ensure the health standard of the packaged food items in India, a regulatory body called Food Safety and Standards Authority of India (FSSAI) has been created under the Food Safety and Standards Act, 2006[6], for laying down science based standards for articles of food and to regulate their manufacturing, distribution and sale to ensure availability of safe and wholesome food according to the health standards. Guidelines have been set by the FSSAI regarding the labelling of food products. The nutritional facts, ingredients, allergen information are required to be accurately mentioned in the labels along with expiry dates. Any type of health claims made by food companies must be true and scientifically backed, and if not, it would be considered as violation and can lead to legal implications. FSSAI states the punishments for misleading claims by companies which includes imposition of penalties on the company, along with fines, products recall or suspension/cancellation of license. In 2015, FSSAI got involved into a legal battle with Nestle India in a case titled M/S Nestle India Limited vs The Food Safety and Standards Authority of India (FSSAI)[7] when Maggi noodles, a product of Nestle India faced action by FSSAI over the allegations regarding it containing exceeding levels of monosodium glutamine (MSG) despite the labelling on it mentioned “no added MSG”. The FSSAI issued an order directing Nestle to recall the products from the market and stop its sales as the reports said that the Maggi noodles contains excessive lead, which were beyond the recommended levels. The issue in this case was false labelling and violation of food safety standards by the company and it was a significant case in highlighting the importance of following the guidelines of Food Safety and Standards Authority, especially concerning misleading claims on food packaging and the potential health risks that come with not complying with food safety regulations.
The Consumer Protection Act (CPA) 2019, also provides a protection to the interests and rights of the consumersregarding the false claims and deceptive food labelling which are referred to as ‘unfair trade practices’ in this act. Under CPA, ‘unfair trade practices’ is defined as a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice. Under section 2(47) of CPA, misleading food labelling can be considered to be an unfair trade practice making it punishable by law. Section 2(28) of the act, defines ‘misleading advertisement’ as the advertisements which falsely describe the product or its benefits and performance. The Central Consumer Protection Authority (CCPA) is the authority which is empowered under this act to take actions such as product recalls, fines and penalties, against the organisations involved in such activities.
Although such matters clearly fall under the ambit of CPA and FSSAI which have the powers to resolve these issues, the Bharatiya Nyay Sanhita (BNS)[8], which was prior known as the Indian Penal Code (IPC), also covers the remedies for such issues. The provisions that can address the false advertisement/labelling issue is the Section 420 of BNS which covers issues of ‘Cheating’ and ‘Fraud’. Any circumstance in which a company or organisation falsely advertises or labels their food products, can be termed as cheating or fraud under this section, under any special circumstance. All in all, food ads and labels presenting fully incorrect information negatively affects consumer sentiment and may lead to serious health issues. Indian law has enough of a framework to deal with all these misleading actions, offering large strength through regulations like the Food Safety and Standards Act and the Consumer Protection Act, as discussed above. It is extremely important to curb misleading claims, continuous vigilance coupled with stringent enforcement of existing laws, along with more awareness among consumers and businesses. The authorities should consider taking strict actions on companies and they must encounter severe penalties and lawsuits on violation of food safety standards. These companies may also encounter outstanding damage to their image if involved in such activities. As the food industry never stops changing, regulators and shoppers need to keep up to guarantee a safer, more
[1] Michelle Obama in “Let’s Move!” campaign in 2010 at Washington D.C.
[2] Kaushal N, Dudeja P (2017) Food advertisements boon or bane: A prevalence study of misleading food advertisements in India. J Child Obes Vol No 2 Iss No: 4:17. doi:10.21767/2572-5394.100039. Published on December 11, 2017.
[3] The Print: “Law on junk food ads? Delhi think tank says ‘misleading claims’ on packaged food hide health risks” by Sumi Sukanya Dutta. 22 September, 2023.
[4] Ministry of Law and Justice, Government of India, 9th August 2019, New Delhi.
[5] The Indian Express: “Withdraw ‘misleading’ Bournvita ads, packaging and labels, says NCPCR” by Express News Service. 27 April, 2023.
[6] Ministry of Health and Family Welfare, Government of India, 23rd August 2006, New Delhi.
[7] AIR 2016 (NOC) 225 (BOM.), 2015 (6) ABR 74
Writ Petition (Civil) No. 264/2015, Delhi High Court
[8] Ministry of Law and Justice, Government of India, 25th December 2023, New Delhi.
