 "Patanjali, misleading ads, and art of puffery: When brands take it too far")
Way back in August 2022, the Indian Medical Association (IMA) had approached the courts against a Patanjali advertisement titled, “Misconceptions spread by allopathy: Save yourself and the country from the misconceptions spread by pharma and medical industry.” The IMA accused Patanajli of consistently disseminating misinformation to denigrate allopathy, which it deemed as a deliberate and ongoing campaign, and making exaggerated claims about the efficacy of its own drugs, purportedly based on scientific evidence, which contradicted regulations banning such advertisements in the country. According to the IMA, these statements violated both the Drugs and Other Magical Remedies Act, 1954 (DOMA) and the Consumer Protection Act, 2019 (CPA).
A Supreme Court Bench on November 21, 2023 cautioned Patanjali against advertising permanent cures and threatened to levy a penalty of Rs 1 crore for each product making such claims. However, Patanjali and Baba Ramdev, despite their assurances to the court, did a press conference praising Patanjali products, which was followed by advertisements in mainstream media in December 2023 and January 2024.
On April 2, the Supreme Court came down heavily on Baba Ramdev for violating its directives even as the yoga guru, who was present in court, tendered an unconditional apology. “We are tendering an unconditional apology. He (Baba Ramdev) is here personally present to apologise,” the advocate representing Patanjali told the court.
The court, however, called it “lip service”, and said Patanjali “owes an apology to the whole nation” for its false claims about the efficacy of its products such as Coronil, and for denigrating allopathy during the Covid pandemic. “You have broken every barrier... Now you say that you are sorry,” the court said.
The Supreme Court granted a “last opportunity” to Baba Ramdev and Balkrishna, asking them to file fresh affidavits within a week. The court also warned Ramdev and Balkrishna of perjury.
Let us take a few steps back and go back to where it all started.
What ignited the litigation
In the Indian Medical Association versus Union of India (2022) case, it was Baba Ramdev’s statements labelling allopathy as a “stupid and bankrupt science” that ignited the litigation. IMA argued in court that there had been a serious, blatant, and wilful violation of laws:
* The IMA contended that Patanjali's advertisements violated the Drugs & Other Magical Remedies Act, 1954 (DOMA), and the Consumer Protection Act, 2019 (CPA).
* Under Section 4 of the DOMA, publishing misleading advertisements regarding drugs is prohibited, punishable by imprisonment or fines.
* It states that no person shall take any part in the publication of any advertisement relating to a drug if the advertisement contains any matter which directly or indirectly gives a false impression regarding the true character of the drug; or makes a false claim for the drug; or is otherwise false or misleading in any material particular
* Section 7 of DOMA further states that whoever contravenes any of the provisions of this Act or the rules made thereunder shall, on conviction, be punishable in the case of the first conviction, with imprisonment which may extend to six months, or with fine, or with both; in the case of a subsequent conviction, with imprisonment which may extend to one year
* Furthermore, Section 89 of the Consumer Protection Act (CPA) imposes stringent penalties any manufacturer or service provider who causes a false or misleading advertisement to be made which is prejudicial to the interest of consumers shall be punished with imprisonment.
Now to the present.
Advertising puffery
During the February hearing, the Bench of Justices Hima Kohli and Ahsanuddin Amanullah had said Patanjali advertises their products as “permanent relief” for diseases like obesity, blood pressure, asthma, etc, in violation of the 1954 Act.
“What do you mean by ‘permanent relief'? There are only two types of permanent relief. One, the person dies. Two, the person is cured. There is no third ‘permanent relief’,” Justice Amanullah had asked while addressing Patanjali’s lawyer Mukul Rohatgi.
Is Patanjali the only brand that has been at the receiving end? No, many more examples abound of puffery in advertising, and court interventions.
* Reckitt & Colman of India Ltd versus M P Ramchandran: The Calcutta High Court held that a seller could be permitted to assert that his goods or services are the best or better than that of a competitor even if such declaration is untrue, provided he has compared the advantages and disadvantages of own goods or services with that of the rival brands.
* Horlicks Ltd versus Zydus Wellness Products Ltd: Where Horlicks sought a permanent injunction against Zydus Wellness Products Ltd. for the broadcast of false advertisements claiming that one glass of Complan, a product manufactured by Zydus, was better than two glasses of Horlicks, the product of the plaintiff. The Court allowed relief.
* In Francis Vadakkan versus A-One Medicals, the commercial claimed that the product being a hair growth cream, could help grow hair to three times its volume in a matter of six weeks. These claims were found to be untrue, and the aggrieved consumer approached the District Commission. The Commission declared the non-delivery of promises as a deficiency in service, and a heavy fine was imposed.
* In Rajendra versus Union of India, the Bombay High Court restrained any good or service sale claiming it had supernatural and miraculous powers. The Court held that such practice was blatantly illegal and deceived the public at large. It was held that propagating an advertisement using the name of any God to such an article for sale and claiming that such articles had “special, miraculous and supernatural properties” was prohibited by law.
Interestingly, in the Patanjali matter, the Supreme Court also came down heavily on the Central government for not acting against Patanjali. “The entire country has been taken for a ride. And you shut your eyes? What did you do for two years? The Act itself said that it (misleading advertisements) was prohibited. You should have taken urgent action… This is an unfortunate situation,” Justice Amanullah told the government.
Watchdog ASCI has repeatedly said over the years that Patanjali Ayurved “unfairly denigrates” the products of its rivals. This has led to multiple litigations. Patanjali’s claim for its Kachi Ghani Mustard Oil, that rival makers were selling mustard oil “adulterated with oil made by solvent extraction process with neurotoxin containing Hexane”, was not found to be substantiated.
Patanjali also failed to substantiate its claims for Patanjali Fruit Juice, where it had dubbed rival drinks as “expensive juices containing less pulp.” It also failed to substantiate its claims in the ad for cattle feed Patanjali Dugdhamrut as “other companies mix three to four per cent urea and other non-edible things in their cattle feed.” It seems only the Supreme Court can possibly rein Patanjali in. Let us see.
Patanjali also failed to substantiate its claims for Patanjali Fruit Juice, where it had dubbed rival drinks as “expensive juices containing less pulp.” It also failed to substantiate its claims in the ad for cattle feed Patanjali Dugdhamrut as “other companies mix three to four per cent urea and other non-edible things in their cattle feed.” It seems only the Supreme Court can possibly rein Patanjali in. Let us see.
Sandeep Goyal is the Chairman of Rediffusion; he has a PhD in human brands