Misleading Maggi ads: What about publishers and broadcasters?

Food safety law doesn't have penal provisions for a product's endorsers, but it talks about penalty for publishers of an ad that falsely describes any food

The controversy around the contents of Maggi instant noodles has put the focus on endorsers of the product including Madhuri Dixit. On Tuesday, a court directed that a FIR be registered against Dixit and other celebrities for ‘acting’ in these ‘misleading’ advertisements. 

But, ironically neither the Food safety and Standards Act, 2006, nor the subsequent guidelines and regulation issued by the Food Safety and Standards Authority of India (FSSAI) have any specific mention of celebrity endorsers and stars such as Dixit who ‘act’ in these advertisements for a fee. 

Thanks to a blog post by corporate lawyer Vikram V Koppikar, here are the relevant provisions of the Food Safety Act and guidelines of FSSAI:  

Section 24 of the Food Safety and Standards Act, 2006  which concerns itself around the  " Restrictions of advertisement and prohibition as to unfair trade practices" states as follows:

"(1) No advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made thereunder. (2) No person shall engage himself in any unfair trade practice for purpose of promoting the sale, supply, use and consumption of articles of food or adopt any unfair or deceptive practice including the practice of making any statement, whether orally or in writing or by visible representation which - (a) falsely represents that the foods are of a particular standard, quality, quantity or grade-composition; (b) makes a false or misleading representation concerning the need for, or the usefulness; 26 (c) gives to the public any guarantee of the efficacy that is not based on an adequate or scientific justification thereof:

Provided that where a defence is raised to the effect that such guarantee is based on adequate or scientific justification, the burden of proof of such defence shall lie on the person raising such defence."

Koppikar notes that the concept of "any person", can be used to include a celebrity endorser and as the term "unfair trade practice" remains undefined, can be used by the FSS authorities to initiate action against such endorser.

A subsequent advisory on "Misbranding/ Misleading claims" by the FSSAI, stated:  "An advertisement is defined u/s 3 of FSS Act, 2006 as:- any audio or visual publicity, representation or procurement made by means of any light, sound smoke, gas, print, electronic media, internet and website and included through any notice, circular, label, wrapper, invoice to other documents;

“Misleading advertisement related to food items are imputed with malafide intent on the part of person making the claim and is normally made to misguide a consumer to purchase food item without disclosing the complete details on the advertisement. Companies (Corporate bodies including firm or other association, individual) are also covered u/s 66, FSS Act, 2006," the advisory said.

The penalty clause is as follows: "..any person who publishes, or is a party to the publication of an advertisement, which a) falsely describes any food; or b) is likely to mislead as to the nature or substance or quality of any food or gives false guarantee, shall be liable to a penalty which may extend to ten lakh rupees."

Thus, if at all FSSAI wants to take action against Dixit, her liability is capped at a penalty of Rs 10 lakh, concludes Koppikar. 

In addition to this valid point put forth by the lawyer, this broad definition in the penal clause raises another issue. 

And as per above, “any person who publishes, or is a party to the publication of an advertisement” is liable. What about other dozens of ‘any person’ involved in the production and publication of the so-called 'misleading ads'? Where does this leave media outlets such as newspapers, television channels and websites that published (or broadcasted) the advertisements? What about the ad agency that created the ad and chalked out the media plan? the other actors..? Don’t they come under the definition of ‘any person’? Are they not ‘party to the publication of an advertisement’? Why are the government and its arms silent about these others? Why is the long arm of law targeting only Madhuri Dixit?

And, we are not even getting in to the establishment of 'mala fide intent,' which is also mentioned by FSSAI advisory...