Introduction
In the world of health and wellness, labelling beverages as "health drinks" has significant legal implications, especially concerning advertising, labelling and consumer trust. Popular Chocolate Malt Beverage Brand and other brands have long been regarded as beneficial to health, but recent developments suggest a change. Regulatory bodies and consumers are now closely examining the nutritional claims of such products. In a recent development, the Ministry of Commerce and Industry has issued a notification to e-commerce platforms, urging them to remove beverages like Popular Chocolate Malt Beverage from the "health drink" category. The notification issued by the ministry cited an NCPCR inquiry under Section 14 of the CPCR Act, 2005, which concluded that "there is no Health Drink defined under FSS Act 2006, Rules and regulations as submitted by Food Safety and Standards Authority of India and Mondelez India Food Pvt. Ltd."1 This article delves into the reason for such removal, Popular Chocolate Malt Beverage Brand & misleading advertisement and the laws in India dealing with misleading advertisements.
Reason for the removal of Popular Chocolate Malt Beverage and other brands
The advisory issued by the Ministry of Commerce and Industry focused on the usage of the phrase "Health Drink" in advertisements and on e-commerce platforms. While citing an investigation conducted by the National Commission for Protection of Child Rights (NCPCR)2 , the ministry emphasized that the Food Safety and Standards Act, 2006 (FSS Act), along with the regulations of Food Safety and Standards Authority of India (FSSAI), do not define the term "Health Drink".
As the term "Health Drink" is not defined under the FSS Act, 2006, its application to beverages is considered incorrect. Therefore, e-commerce websites have been instructed to remove drinks and beverages, including Popular Chocolate Malt Beverage, from the category of health drinks on their respective platforms/sites.
Popular Chocolate Malt Beverage Brand and Misleading Advertisements
Last year, Popular Chocolate Malt Beverage Brand entered into a controversy following a viral Instagram reel that challenged the claims made by the beverage regarding its ability to enhance immunity and delivering numerous health advantages .3.
In less than a month following the controversy, the NCPCR urged the Mondelez International India to review and withdraw all its misleading advertisements, packaging and labels. The instruction came after it received a complaint alleging that Popular Chocolate Malt Beverage brands itself as a health drink as it improves 'children's growth and development' even when it contains a high amount of sugar.4 Months after the controversy, the Popular Chocolate Malt Beverage Brand reduced the sugar content by nearly 15%.
Laws in India regulating Misleading Advertisements
In India, laws regulating misleading advertisements aims to protect the consumers from deceptive marketing practices and ensure fair competition in the marketplace. The term misleading advertisement means:
- Any advertisement which falsely describes product or service, or
- Any advertisement which gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity, or quality of such product or service; or
- Any advertisement which conveys an expression or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or
- Any advertisement which deliberately conceals important information.5
1. Food Safety and Standards (Advertising and Claims) Regulations, 20186
The Food Safety and Standards Authority of India (FSSAI) has taken a crucial step to ensure fairness and transparency in food advertising by implementing the Food Safety and Standards (Advertising and Claims) Regulations, 2018 . The FSSAI aims to hold the food businesses accountable for the claims they make regarding the health and nutritional qualities of their products.
Key Highlights:
How to make claims?
- Claims to be truthful: Claims must be truthful, unambiguous, meaningful, not misleading and help consumers to comprehend the information provided.
- For eg. SPF 50 sunscreen provides high protection against harmful UV rays, reducing the risk of sunburn and premature ageing.
- Healthy Consumption: Claims shall not encourage or condone excess consumption of a particular food.
- For eg. "Opt for whole grain, fresh fruits Greek yogurt for a nutritious breakfast to fuel your day."
- Support for balanced diet: Claims shall not state, suggest or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients as required by the body.
- Scientific Proof: The claim that a food has certain nutritional or health attributes shall be scientifically substantiated (proof) by validated methods of characterizing or quantifying the ingredient or substance that is the basis for the claim.
- For eg. A cereal brand claims its product is "heart-healthy" due to its high fiber content. This claim should be backed by a scientifically validated test measuring the fiber content from an accredited laboratory.
- Promotion of Healthy Lifestyle: Advertisements shall also not undermine the importance of healthy lifestyles.
- For eg. "Boost your energy the healthy way with our new sugar-free, all natural energy drink."
- Consistency with Label Information: Claims in advertisements shall be consistent with information on the label of the food or beverage.
- For eg. "Try our new delicious granola bars! Made with real fruits and whole grains."
- No Deceptive Advertisements: : No advertisement shall be made which is deceptive to the consumers.
Case: Benjamin Careathers vs Red Bull North America Inc.7
In the present case, Benjamin Careathers, David Wolf and Miguel Almaraz initiated a lawsuit, contending that Popular Energy Drink Brand's advertisement misrepresented the functional benefits of the energy drink, such as enhanced physical performance and reaction time, and claiming that the energy drink 'give you wings', leading the consumers to pay a premium price of the product.
The Popular Energy Drink Brand agreed to settle the lawsuit for USD 13 million. The Hon'ble Court also ordered the popular energy drink brand to either give USD 10 cash or a coupon valued USD 15, to the affected consumers who had purchased the popular energy drink brand product since January, 1, 2002.
2. Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022
Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 20228 issued by the Central Consumer Protection Authority (CCPA) serves as vital frameworks to safeguard consumer interests and ensure the integrity of advertising practices. The guidelines aim to prevent deceptive marketing tactics that may mislead consumers regarding the nutrition's, benefits or efficacy of products. While the Consumer Protection Act, 2019, already includes basic rules on preventing misleading advertisements, these guidelines broaden the scope by outlining the specific criteria as to what is allowed and what is not.
Key Highlights:
- Valid Advertisements: The guidelines outline
the requirements for valid, non-misleading advertisements,
including:
- Providing truthful and honest representation;
- Avoiding exaggerated claims about benefits;
- Refraining from presenting claims as universally accepted when there's significant dissent;
- Ensuring claims are substantiated to avoid misleading consumers
- Adhering to the sector-specific regulations.
- Bait Advertisements: They are the
advertisements that offer goods, products or services at a lower
price to lure consumers.
For eg. "Get our amazing smartphone for just Rs. 12,000/- and get additional accessories. Limited stock available. Offer ends soon." - Free Claims: A free claim advertisement should
avoid labeling goods, products or services as "free" or
"without charge" if the consumers need to pay beyond
unavoidable costs. It should clearly specify the consumer's
commitment needed to access the free offer.
For eg. "Buy one, get one free! Purchase any pair of shoes and receive a second pair of equal or lesser value for free. Don't miss out on this incredible offer, visit out store now!" - Children Targeted Advertisements: Children
targeted advertisement are subject to specific guidelines due to
vulnerability of children' minds to the advertising and its
profound impact on them. Among other requirements, such
advertisements must not:
- Promote or endorse hazardous activities;
- Overstate the qualities of goods, products or services.
- Feature children for advertisements that break the law;
- Claim that the product make you smarter or healthier without proof;
- Make claims that the product is better than the regular food.
Conclusion
In conclusion, the scrutiny surrounding Popular Chocolate Malt Beverage Brand and other foods brands' classification as health drinks shows the importance of transparency and accuracy in advertising. The case of Popular Chocolate Malt Beverage's misleading advertisement, along with the issuance of guidelines on misleading advertisements, highlights the need for transparency and accountability in the health drink industry and to protect consumers from deceptive marketing practices. As consumers become increasingly aware of nutritional contents in drinks, it becomes crucial for brands to adhere to these stringent guidelines, not only for the sake of consumer health but also to maintain public trust and credibility. Failure to meet these standards could lead to public scrutiny, potential legal consequences and damages to the brand's reputation. Thus, prioritizing transparency and accuracy in nutritional labelling is essential for maintaining positive relations with both the consumer and wider public.
Ritvik Kashyap, Intern at S.S. Rana & Co. has assisted in the research of this article.
Footnotes
2. Available at: https://timesofindia.indiatimes.com/city/delhi/ncpcr-urges-ban-on-selling-beverages-as-health-drinks-including-bournvita/articleshow/108598470.cms
5. See Section 2(28) of Consumer Protection Act, 2019
6. Available at – https://fssai.gov.in/upload/uploadfiles/files/Compendium_Advertising_Claims_Regulations_04_03_2021.pdf
7. 2015 U.S. Dist. LEXIS97533
8. Available at – https://consumeraffairs.nic.in/sites/default/files/CCPA_Notification.pdf
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