1. What Constitutes a Misleading Advertisement? The Legal Definition

The CPA 2019 provides a clear and comprehensive definition of a "misleading advertisement" under Section 2(28). It states that any advertisement, in relation to any product or service, is misleading if it:

1.1. Falsely describes such product or service: This is a direct misrepresentation of what the product or service actually is. For example, claiming a product is "100% organic" when it contains synthetic ingredients, or an online course promises "guaranteed job placement" without any real mechanism for it.

1.2. 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: This covers guarantees that are not genuinely achievable or claims that deceive consumers about the core attributes of the offering. For example, a hair oil guaranteeing "instant hair growth" or a detergent claiming to remove "100% of all stains."

1.3. Conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice: This links misleading ads directly to the broader concept of unfair trade practices (UTPs). If the implied message of an ad amounts to an unfair trade practice (like bait advertising or giving false assurances), it falls under this category.

1.4. Deliberately conceals important information: Omission can be as misleading as a false statement. If crucial facts that would influence a consumer's decision are intentionally hidden, it constitutes a misleading ad. For example, advertising a loan at a low interest rate but deliberately hiding exorbitant processing fees or prepayment penalties in fine print.

The definition is broad enough to cover various forms of deception, including exaggeration, ambiguity, omission of material facts, and false promises.

2. Identifying Misleading Advertisements: A Consumer's Checklist

Being a discerning consumer is the first line of defense. Here's how to identify potential misleading advertisements:

2.1. Exaggerated or Unrealistic Claims: Does the ad promise results that seem "too good to be true"? For example, rapid weight loss without effort, immediate financial riches, or miraculous cures for serious ailments. Be skeptical of claims that defy logic or scientific evidence.

2.2. Lack of Specifics or Vague Language: Does the ad use general terms ("improves overall health," "better performance") without quantifiable data or verifiable proof? Genuine claims usually provide specific details.

2.3. Hidden Information and Fine Print: Are disclaimers in tiny font, flashing briefly on screen, or spoken rapidly in voice-overs? If essential conditions, limitations, or additional costs are tucked away in difficult-to-access places, it's a red flag. The Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, issued by the CCPA, specifically state that disclaimers must not contradict the main claim, hide material information, or be in a small, unreadable font.

2.4. Before-and-After Scams: Be cautious of dramatic transformations shown in before-and-after pictures, especially for health or cosmetic products. These are often doctored or achieved under highly specific, unreplicable conditions.

2.5. Unsupported Testimonials/Endorsements: While genuine testimonials are valuable, look for generic, unverified reviews, or celebrity endorsements that seem to lack genuine experience with the product. The CPA 2019 now holds endorsers accountable (discussed below).

2.6. Puffery vs. Misleading: It's important to distinguish between "puffery" (exaggerated, subjective claims that a reasonable person wouldn't take literally, e.g., "the best coffee in the world") and genuinely misleading statements. The latter makes specific, verifiable claims that turn out to be false.

2.7. False Comparatives: Advertisements that unfairly disparage competitors or make unsubstantiated claims of superiority over rival products. Comparative advertising is allowed, but it must be truthful, fair, and verifiable.

3. The Powerhouse: Central Consumer Protection Authority (CCPA)

A significant innovation of the CPA 2019 is the establishment of the Central Consumer Protection Authority (CCPA). Unlike the consumer forums, which primarily address individual complaints, the CCPA has a proactive and regulatory role, especially in dealing with widespread misleading advertisements and unfair trade practices.

3.1. Powers of the CCPA regarding Misleading Advertisements (Section 21 of CPA 2019):

1.1. Investigations: The CCPA can conduct inquiries and investigations suo motu (on its own initiative), or based on complaints, into matters relating to misleading advertisements.

1.2. Directions: If satisfied that an advertisement is false or misleading and is prejudicial to consumer rights, the CCPA can issue directions to the concerned trader, manufacturer, endorser, advertiser, or publisher to: Discontinue the misleading advertisement. Modify the advertisement within a specified timeframe. Issue corrective advertisement to neutralize the effect of the misleading ad, at the cost of the party responsible for the misleading ad. This is a powerful remedy.

1.3. Penalties: Manufacturers/Advertisers: The CCPA can impose a penalty of up to ₹10 lakh for the first offense of a misleading advertisement. For every subsequent contravention, the penalty can extend up to ₹50 lakh. * Publishers: The CCPA can also impose a penalty of up to ₹10 lakh on any person found to publish or be a party to the publication of a misleading advertisement.

1.4. Prohibition on Endorsement: In addition to monetary penalties, the CCPA can prohibit an endorser of a misleading advertisementfrom making any endorsement for a period which may extend to one year. For every subsequent contravention, this prohibition can extend up to three years.

The CCPA's role is crucial in bringing about systemic change and deterring large-scale deceptive advertising practices across India, including in Kerala.

4. Endorser Liability: Celebrities and Influencers Held Accountable

A groundbreaking aspect of the CPA 2019 is the clear imposition of liability on endorsers. Previously, celebrities and influencers often escaped accountability, claiming they were merely acting. Now, they share the responsibility for the claims they make or endorse.

4.1. Duty of Due Diligence: An endorser shall NOT be liable to a penalty if they can prove that they have exercised due diligence to verify the veracity of the claims made in the advertisement regarding the product or service being endorsed by them (Section 21(5)). This means celebrities and influencers must now genuinely investigate claims before lending their credibility. They cannot simply read a script.

4.2. What Due Diligence Entails: While not exhaustively defined, due diligence for an endorser would typically involve:

1.1. Personal use or experience with the product or service.

1.2. Seeking clarification and supporting evidence from the manufacturer advertiser regarding factual claims.

1.3. Understanding the product's features, benefits, and any disclaimers.

1.4. Refraining from endorsing products that are inherently risky or for which they lack sufficient information.

1.5. Disclosing "material connection" (e.g., payment, free products) if it might affect the value or credibility of the endorsement and is not reasonably expected by the audience.

This provision has significant implications for the burgeoning influencer marketing industry, pushing for greater ethical standards and responsibility.

5. Your Rights and Remedies as a Consumer

If you, as a consumer in Kochi or Ernakulam, have been impacted by a misleading advertisement, the CPA 2019provides robust remedies:

5.1. Discontinuation or Modification: The CCPA or the consumer forum can order the advertiser to stop the misleading ad or modify it to be truthful.

5.2. Corrective Advertisement: This is a powerful remedy where the advertiser is compelled to publish new advertisements to rectify the false impressions created by the original misleading ad, at their own cost. This aims to neutralize the harm caused to consumer awareness.

5.3. Refund: You can seek a full or partial refund for the product or service purchased based on the misleading advertisement.

5.4. Compensation for Loss or Injury: If the misleading advertisement caused you any direct financial loss or injury (e.g., health issues from a falsely advertised product, financial loss from a deceptive investment scheme), you can claim compensation for such harm. This can include compensation for mental agony and harassment.

5.5. Punitive Damages: In cases of egregious or malicious misleading advertisements, the consumer forum may also award punitive damages to deter similar future misconduct.

5.6. Litigation Costs: The forum can also direct the opposite party to bear the costs of the litigation.

6. How to Seek Redressal for Misleading Advertisements

6.1. Gather Evidence: This is the most crucial step. Collect all possible evidence of the misleading advertisement:

1.1. Screenshots of online ads, social media posts.

1.2. Recordings of TV or radio ads.

1.3. Newspaper or magazine clippings.

1.4. Product packaging or labels that make the misleading claims.

1.5. Purchase receipts, invoices, or service agreements.

1.6. Any evidence showing how the product or service failed to meet the advertised claims (e.g., medical reports, expert opinions, photos/videos).

6.2. Contact the Advertiser/Company: First, try to resolve the issue directly by sending a formal complaint to the customer service or legal department of the company responsible for the advertisement. Clearly state your grievance and what remedy you seek.

6.3. Lodge a Complaint with the Advertising Standards Council of India (ASCI): While not a statutory body, ASCI is a self-regulatory industry body that monitors advertising content. You can file a complaint online on their website (ascionline.org). ASCI can investigate and recommend withdrawal or modification of the ad. Although its decisions are not legally binding, most reputable advertisers comply.

6.4. File a Complaint with the Central Consumer Protection Authority (CCPA): For widespread misleading advertisements or those affecting a large number of consumers, you can report the matter to the CCPA (via the National Consumer Helpline or directly). The CCPA can initiate investigations and take direct action, including imposing penalties and ordering discontinuation or corrective ads.

6.5. File a Complaint with the Consumer Forum: If direct communication, ASCI, or CCPA intervention doesn't resolve your individual grievance for compensation or refund, file a formal complaint with the appropriate Consumer Disputes Redressal Commission (District, State, or National) depending on the value of the claim.

1.1. District Consumer Commission (Kerala): For claims up to ₹50 lakh.

1.2. State Consumer Commission (Kerala): For claims above ₹50 lakh and up to ₹2 crore.

1.3. National Consumer Disputes Redressal Commission (NCDRC): For claims above ₹2 crore. The CPA 2019 allows for electronic filing of complaints, making the process more accessible for consumers in Kochi and Ernakulam.

Conclusion

Misleading advertisements are a direct assault on consumer rights and the integrity of the marketplace. The Consumer Protection Act, 2019, with its robust definitions, the proactive role of the Central Consumer Protection Authority (CCPA), and the clear imposition of liability on manufacturers, advertisers, and endorsers, provides a powerful legal framework to combat this menace. For every consumer in Kochi, Ernakulam, and across Kerala, being vigilant, identifying deceptive claims, and knowing the available remedies are crucial steps towards ensuring a fair, transparent, and trustworthy advertising environment. By collectively challenging misleading advertisements, we contribute to stronger consumer protection and a more accountable commercial ecosystem.

Connect with me:

https://g.co/kgs/mPKwKkP

https://www.facebook.com/share/1B44BM51tW/

https://www.instagram.com/rprlegalnexus?igsh=bGFweWdpMjNkZ28x

linkedin.com/in/adv-raghesh-issac-p-226869b8

https://x.com/PIssac24903?t=f4pXaO91980uKNidGSa3Rg&s=09