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The Fault in Our Starry Ads: A View on Celebrity Endorsements and Law in India by Pooja Ghosh

The Author: Pooja Ghosh is a Law Student Studying at Army Institute of Law, Mohali

All that glitters is not gold. This is a phrase which was taught to every child in the moral science class. Children did get it when they read the textbooks but, after closing the book, the Television pulled the same trick on them. It allured them by using big influential pop stars and cricketers. Misleading people has become the way of world. To attract consumers, ad agencies and producers stop at nothing! They resort to puffery and bluffing. With their concerted efforts of deception, it is ultimately the consumer who suffers if the product shown in the ad does not deliver the promise or causes loss to them. It thus, becomes important to raise the question that if the product does not deliver what the TV actor or actress promise (which happens often!) then should the consumer be given the right to sue that particular personality also or should that liability only extend to the manufacturer of the product? The law in India is still struggling with the fact that the face which lured them, should it be held liable?

BECAUSE HE/SHE SAID SO…!

In India especially, it is not difficult to find motives for the increasing use of celebrities in advertisements as Indians have always been in awe of the stars of the celluloid world. Indeed, some people are seen to admire, imitate and become besotted with their favourite celebrities which forms the crux for the celebrity endorsement being quite a sought after advertisement technique. (Mc.Cutcheon.et.al 2003)[i]

Advertisements have always been redefined. In the past, radios used to announce vehemently about the pros of that new vacuum cleaner. With advancement in technology and virtual world, advertisements have become a type of testimonial. This testimonial is either supported by a common man or a much loved and talked about face. The producers of various products pay millions to such faces which have the so-called ‘mass appeal’. The use of such faces is called “celebrity endorsement” which has been witnessed to be far more successful than products endorsed by a common man. Companies involve and continue to involve celebrities as the personal traits of the celebrity draws and persuade the consumers to at least pay attention if not rush to the store immediately and buy the product. (Though, die-hard and obsessed fans have a tendency of buying even that product which might not be of much use to them!!) The power of persuasion makes it a much talked about product and hence, the product gains popularity among people. On top of it, if the celebrity endorses it vociferously and even affirms that he/she uses the same product then, the product not only draws attention but also, a whole new bunch of consumers who just buy it because that particular celebrity uses it. Hence, companies prefer to take in celebrities as they possess (apparently!) the powers of persuasion and power of exploiting the people who refer to them every minute of their lives (i.e. as reference groups). For better impact and to convey the message quickly, companies involve celebrities and continue to do so. The advertisement is flashed every other 5 minutes on different channels (be it radio/television) and the cycle of “X says so…then it might be true. I should give it a try at least!” goes on continuously. Therefore, this technique is the most popular and efficient one among advertisement makers.

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CELEBRITIES HERE, CELEBRITIES THERE BUT, NO TRUTH IN THEIR WORD! :

Late night shows are often accompanied by 15 minute long advertisement breaks which come under different titles like Telebrands’ or Teleworld’. These advertise products from Sauna belt to Skin lightening creams and celebrities endorse such meaningless products proudly! Various celebrities feature in ‘Hanuman Chalisa Yantra’ ads where they describe their pre-melancholic state and then recommend that it was only the particular yantra which turned his life around (in a good way!). Belief is fine, what is sad is endorsement of product that too by an A-class celebrity which induces nothing but fear and superstition in the minds of the naïve viewer! The Television screen dwindles with numerous light and you as a consumer are forced to believe that ‘Yes! If XYZ superstar claims then it might be true! Why would he waste his time and put his image at stake to endorse product!’ For a minute your emotion does fight the logic. In short you are misled by the aura of a strong personality for a product which has no personality of its own. If a common man would have been endorsing it, you would have changed the channel immediately.

Not only cine-stars but even, stars of the small screen endorse products which lack in quality completely and do not give the same results as boasted upon.

At times, the consumer might even feel that the Television is invaded by celebrities. Some endorse products like Bank schemes, some endorse ridiculous ones like an Ayurvedic medicine no one has heard of and some endorse products that make you doubt the integrity of the celebrity himself. Skin lightening products are one of them. On one hand, the television world remains abuzz with the ongoing ‘colourism’ in India and how one should oppose it on the other hand; an influential personality from the same industry boasts that being fair will win you friends, job and a prospective marriage…that is a life. If you are dark you are doomed and cannot be a part of our society. These celebrities sacrifice their integrity for money and popularity among the youth which is always insecure! They become the mouthpiece of that which should not be done (i.e. belittling yourself on the basis of physical attributes). But still you tend to believe them because even in their industry fair people are more attractive and popular than the ones who have a dark skin tone! Having an influential personality does affect the market sales of the product even though the product might not be what it exaggerated about.

The current ad world makes everything possible for the celebrity. A celebrity can fly miles or cross heights for a Pepsi bottle! In ad films a celebrity can do anything possible! What the product makers or the investors cannot make them do is to enunciate the truth about the product and not exaggerate about it. Sadly being manufacturers they do need the attraction and creativity but, being role models for a whole generation, celebrities can make a difference by limiting the creativity in the ad made by the ad agency. They do and should act responsibly while endorsing or recommending a product to their lovers and followers. What celebrities can do to stand out and win respect rather than just hearts is: SPEAK THE TRUTH AND NOT MAKE EVERY ENDORSEMENT ABOUT THEIR NEXT VENTURE OR A MULTI-MILLION MOVIE!! They should chuck away the fact that celebrities are just donkeys who dance to the tune of the carrot.

TREMENDOUS WAVE MADE BY THE AD AMONG CONSUMERS:  

Aspirational figures of the world especially actors and sportspersons are deemed as Gods by their fans. And being aspirational such personalities also inspire the skeptics who know that a picture is drawn to publicize their skill on a large scale. The same effect is seen when such personalities endorse Pepsi, Cola or a new shampoo! In fact, it does lead to an enormous leap in the profits made by the brand. This is the tremendous effect of publicizing the product through celebrities. As consumers we see over 3,156 images a day. We are just not conscious of them. Our subconscious records maybe 150 or 30. If I have a celebrity as part of that message, I just accelerated the potential for my product to reach the conscious of the consumer.’[ii] Research also shows that even the ones who are aware that celebrities are paid millions for endorsement of a product buy the product and even rely on the endorsement anyway. By preferring a brand which is endorsed by a celebrity, the consumer is satisfied of the fact that for a moment he/she used the product endorsed by a rich and a capable person. And according to the human brain whoever is intelligent, famous and ultra-rich is never wrong. In short, that person is a trust-worthy person. This figment of thought in our brain is exactly what top Corporates and Companies exploit. ‘9 out of 10 celebrity endorsements are just professional entertainers getting paid to sell a product because we feel we know them personally, especially, with social media. And companies are exploiting this trust.’ [iii] With the amount of profit from this technique, personality endorsement is the most effective way of popularizing a product which also in some manner manipulates the psychology of the consumer to an extraordinary extent.  A consumer might even use a product that is not of much significance or absolutely ineffective and does not cater as promised. She/he might not always be harmed a great deal by using a product for a brief period before discontinuing it for being ineffective, but that does not change the fact that he was led into using it in the first place by deception by the use of such technique. It thus, is important that ‘deception on a daily basis’ should be handled stringently by the law. But, the duty does not end here. A lot needs to be done to help naïve consumers from such illusive broadcasts.

ADS AND THE WAYS OF LAW:

The Constitution of India under Article 19 (1) (a) bestows upon the citizens of India the freedom of speech and expression. Reasonable restrictions are present and the Censor Board is literally censured for their role in the Media industry; but the Indian advertising agencies leave no stone unturned to display the product or a scheme creatively. Creativity knows no bounds and because of this the advertisements flunk even the common logic of man. For example: The Axe effect on women or the way an insurance policy can be obtained very easily. Some ads do not abide by logic and some do not abide by ethics. As earlier said, the Constitution has put restrictions on the fundamental right to express; the Government and the Judiciary toiled to regulate the content in the ads. Different legislations in the field of media regulate and control films, documentaries and even ads, specifically misleading or fraudulent advertisements. Addenda to this are legislations and certain provisions which protect the consumers like the Indian Contract Act, 1872, The Sales of Goods Act, 1930, The Consumer Protection Act, 1986 and the Indian Penal Code, 1860. The most efficacious of these is the Consumer Protection Act, 1986. The sole purpose of this enactment is to protect the interests of consumers and settlement of consumer’s disputes. The Act under Sec 2 (r) includes unfair labor practices which also includes misleading advertisements. Thus, this Section applies to all advertisements and prohibits the same. The complaint regarding the advertisement can be made either by the consumer, the Government or a recognized consumer society or by one or more consumer having common interest within the 2 years of the grievance arising. Also, under the Act Central Consumer Protection Council (CCPC) and State Consumer Protection Council (SCPC) which have been established for addressing the grievance of consumers. These Councils aid the Government in various ways and even formulate and advise the Government on the same. Hence, COPRA and CCPC can play a leading role in deciding the extent of liability of the celebrities in case of misleading advertisement.

 Another important initiative taken by different advertisement agencies is the establishment of Advertising Standards Council of India (“ASCI”) in 1985. It is a non- statutory tribunal, was established that created a self -regulatory mechanism of ensuring ethical advertising practices. ASCI is a voluntary Self-regulation council. The members comprise Advertiser’s, Media, Agencies and other Professional/Ancillary services connected with advertising practice. ASCI entertained and disposed of complaints based on its Code of Advertising Practice. This Code applies to advertisements read, heard or viewed in India even if they originate or are published abroad so long as they are directed to consumers in India or are exposed to significant number of consumers in India. The ASCI has taken up a major role and is considered to be one of the most efficient quasi-judicial body which takes up complaints and issues guidelines. This body helps in aiding and addressing the grievance posed to the consumers as to an advertiser, consumer is the audience. By exaggerating, the audience is misled. It ensures the truthful representation of a product.[iv] In September 2012, the Consumer Complaints Council of ASCI upheld complaints made against 15 out of 22 advertisements. In June 2014, it upheld complaints against 134 out of 147 ads as misleading. One of these involved a celebrity endorsing a hair product which claimed to hair-gain in less than 90 days.[v] The only limitation to this is that being a self-regulatory body, it does not apply to comparative advertisement on the condition that it is not misleading. Also, the membership to it is not compulsory. Even after this limitation the ASCI has taken major steps to transform from a mere recommendatory body to a quasi-judicial body by involving the Department of Consumer Affairs.

Though the law is sufficient in case of misleading advertisements still there is no clarity about the liability of the celebrity. Currently, it has been recently proposed that the Central Consumer Protection Council should effectively constitute the sub-committee to discuss the liability of celebrities in case of false advertisement which leads to the loss of the consumer.

THE STAND OF OTHER COUNTRIES REGARDING CELEBRITY ENDORSEMENT: 

‘The Deception Game’ is also popular in ads world-wide. But, countries like USA and China have clarity with regards to the liability of both endorsers and the manufacturers.

In the USA after the Garvey case, the Federal Trade Commission made amendments in 2009 which gives the consumer the liberty to even hold celebrities liable in case of misleading advertisements. Comparing Advertising Standards Council of India with FTC, the FTC is considered to be more effective than ASCI. This is because ASCI is just a self -regulatory body; on the other hand, FTC is much stronger which has well defined enforcement bodies. Also, the FTC has clarified its position in cases where the liability of the celebrity is concerned. The guidelines make the celebrities responsible enough to investigate the products first and then make a testimonial. If not then the celebrity can be held accountable under Sec. 13 (b) of the guidelines.[vi] Though FTC has strict guidelines but, it is silent on how the celebrity has to disclose the material connection between him/her and the advertiser. Recently, the marketers of a cactus-based fruit drink have agreed to provide $3.5 million for consumer refunds in order to settle FTC charges that they deceived consumers with unsupported claims that their drink, Nopalea, would treat a variety of health problems. The settlement with dietary supplement company TriVita, Inc. is part of the FTC’s ongoing efforts to stop over-hyped health claims. The defendants’ infomercials featuring celebrity endorser and former supermodel Cheryl Tiegs, market Nopalea as an “anti-inflammatory wellness drink” that relieves pain, reduces and relieves joint and muscle swelling, improves breathing and alleviates respiratory problems, and relieves skin conditions.[vii] But, there were no claims made by consumers to sue the said celebrity for the misleading campaign. In 2012, Khloe and Kourtney Kardashian were made part of a class action lawsuit for making misleading and unsubstantiated statements for a product. The plaintiffs pleaded that the same was based on unreliable and unscientific claims. The FTC guidelines though were not made a part of as such still, the FTC has successfully been able to promote awareness among consumers and also provide an efficient platform to address the grievances of the consumers.

China has also emerged as an example of its first kind. Former NBA star has been sued by Beijing resident for endorsing a health food product that it misleads consumers, in one of the first consumer rights cases involving a celebrity since a new protection law was enacted in March. He is suing the Pharmacy, a retail chain in Beijing, for exaggerating the benefits of its fish oil capsules. The NBA star a spokesman for the product, is also being sued. Beijing’s district court has confirmed that it will hear the case. He is seeking 500 yuan in compensation from the retail chain and 0.01 yuan from the star. Under the Food Safety Law of China, the producer, the advertiser and the endorser are liable in case of misleading testimonials and recommendations. The consumer has been given the liberty to directly seek compensation from the celebrity. China is trying to evolve its laws regarding celebrities by fixing joint responsibility in all the spheres rather than just food products. In Korea, the self-regulation institution has more teeth than ASCI. It has the power to decide which products are to be expressly advertised by the producers and which are not. Medical drugs cannot be endorsed or recommended by an influential figure in Korea. In case of any violation, the producers and the endorser can be severely punished.

In several countries, the laws relating to misleading advertisements are in their infancy as none define the extent of the celebrity’s liability in a case.  Only Korea has set an example of a strengthened self-regulation institution which can control the content of the advertisement. India can analyze and bring such changes to its ever-evolving law so that the consumer is clear about the status of celebrity liability.

WITH GREAT PERSONALITY, COMES GREAT RESPONSIBILITY:

Ethics is important in every profession. By knowing that you can manipulate the thinking or mentality of a person with the use of great personalities does not necessarily mean that you can exploit that fact for an 8 minute ad film! The ASCI in India issued guidelines for fairness cream products. It has included that the ‘dark-skin colour’ should not be showed as a burden or a source of stress in the feature. But, because membership to ASCI is not various producers still love glamourizing the fair-skin tone. If advertisement ethics were made mandatory then big stars would not be harping about how fair-skinned people are more confident than the ones who are dark-skinned and how they succeed in life. But, alas! Money, power and fame blind popular stars and ethics is forced to jump out of the window. Amitabh Bachchan once confessed that he had stopped endorsing certain soft-drinks when a student questioned as to why he endorsed poison. It is important that the advertiser and the celebrity understand that they are in a position to influence as well as disillusion the masses. And by this knowledge they should also understand the fact that honesty would win them more customers rather than duping them through exaggeration. Being a welfare country, India needs to emphasize on a Media which does not air paid news, misleading endorsements and obscene impressions. If ethics are not followed then the role of stricter laws becomes an exigency. The judiciary has contributed as always by providing a voice to the consumers. It was observed by the Madras High Court that puffery cannot be tolerated by the current law in India as it leads to the gain of the producer at the behest of the consumer and puts the consumers at risk.[viii] Also, in one of the judgments of the Delhi High Court, it was ordered that a misleading claim from a tooth paste commercial should be deleted or modified so that the consumer does not get carried away by the same.[ix] The judiciary has and should be applauded for the role that it has played in monitoring advertisements and commercials that delude the consumers. Similarly, the judiciary can contribute a lot in case of celebrity liability for false endorsements if called upon to do so. The legislature, executive and judiciary can join hands so as to induce more corporate responsibility into big companies, ad agencies and celebrities.

LIABILITY NOT ENOUGH!!

With respect to the scenario in different countries, just making a law which directly holds the celebrity liable is not enough. What is important is a more holistic approach to stop advertisers from misleading the consumers.

  • SPECIFY THE LIABILITY OF CELEBRITY WITH OTHERS: Often it is debated that either the producer or the celebrity are at fault and hence, they should be held liable. The consumer has been given a choice. The problem is posed to the celebrity as his/her image gets affected after the newspapers splash the case against him/her on pages. She/he is shown as the goliath ready to crush the consumer. The consumer needs to be protected as there might be a possibility that vexatious suits might be filed against the celebrity. Also, it is not only the celebrity who is at fault, the ad agencies which dupe people the most should also be held guilty of the same. For this it is important that the Advertising Standards Council of India issue guidelines which not only make the celebrity liable but also defines the extent to which he can be held liable. Is his liability joint or several? Does he/she have a defense under the law to protect them? Can he/she sue the producers for the loss caused to him due to the compensation he/she had to pay? These questions need to be answers.
  • EDUCATING THE CELEBRITIES ABOUT THE LAW AND ETHICS: The celebrities should know about the repercussions in case they make unscientific and lying statements about the product in ads. They should be educated and be made known about the ASCI and important legislations before taking the risk of advertising a product for the huge amount of money. Also, self-discipline is much required. Ethics cannot be sacrificed for the want of money. Hence, a limit on the income paid for an advertisement should be defined either through legislation or by the producers themselves. Celebrities get paid a huge amount for a 3-hour long movie; the advertisers should not pay a higher amount for a 2 minute ad film so as to attract the celebrity to endorse a shampoo or hair oil!
  • STRENGHTEN ROLE OF GOVERNMENT: ASCI has joined the government, but the role of the Government should be increased. Supervision, enforcement and higher penalties can only be made possible if the Government steps in. The Government can confer powers upon the CCPC or the ASCI to examine the advertisement prior to its broadcast. The same should be followed strictly in case the endorser is a celebrity who can influence people. The ASCI can even review the performances of important products and publish it on their websites by ranking it for the consumers making it easier for them to choose the best. Also, the government should supervise whether big corporate bodies have a policy on Corporate Social Responsibility. Higher penalties can even deter the producers to rope in celebrities for products. Rather than issuing an advisory which prohibits the broadcast of ads in violation of ASCI and the Cable Television Networks (Regulation) Act, 1995[x], the Government should make a law which sets the penalty in case the Act or code is violated. The Government needs to step in!

The Directive Principles of State Policy under the Constitution endeavor to establish and maintain an economy where none is taken advantage of and where none is left bereft of resources. Hence, the Government owes a duty to the naïve consumers to immediately put a stop to misleading testimonials by personalities. The celebrities on the other hand, should understand that a big pay check does not mean that they endorse a product they do not believe in. With great power comes great responsibility. It is then only that a welfare state can be achieved. 

 

REFERENCES

 

  1. https://www.cardozoaelj.com/wp-content/uploads/2011/03/goldstein.pdf
  2. Ibid
  3. https://cuts-international.org/cart/pdf/Study_on_the_Status_of_Law_Enforcement_for_Misleading_Advertisements_in_India.pdf
  4. https://www.ficci.com/Sedocument/20240/Survey_on_Advertising_Standards.pdf
  5. https://www.bestmediainfo.com/2014/10/asci-upholds-complaints-against-134-out-of-147-ads-in-july-2014/
  6. https://www.cardozoaelj.com/wp-content/uploads/2011/03/goldstein.pdf
  7. https://www.ftc.gov/news-events/press-releases/2014/07/cactus-juice-marketers-pay-35-million-refunds-consumers-deceptive
  8. Colgate Palmolive (India) Ltd. v. Anchor Health & Beauty Care Pvt. Ltd, AIR Mad 2008, https://indiankanoon.org/doc/1500699/
  9. Colgate Palmolive Company & Anr. V. Hindustan Unilever Ltd., 206 (2014) DLT 329, www.manupatra.com
  10. https://www.olshanlaw.com/blogs-Advertising-Law-Blog,Kardashians-Endorsement-QuickTrim
  11. https://www.chinadaily.com.cn/china/2014-05/15/content_17508083.htm
  12. Hasan Khurshid, Legal Accountability of celebrities for endorsing advertisements, https://lawyersupdate.co.in/LU/8/1573.asp (March 2014)
  13. https://www.socialmediaexplorer.com/social-media-marketing/celebrity-spokespersons-and-the-federal-trade-commission/
  14. https://adage.com/article/madisonvine-news/celebrity-endorsers-watch/136462/
  15. https://indiacorplaw.blogspot.in/2009/10/changing-advertising-practices-in-india.html
  16. https://www.ascionline.org/index.php/menu-for-search.html?searchword=Celebrity%20ads&searchphrase=all
  17. https://www.ascionline.org/images/pdf/fairness-advertising-code-for-wide-circulation-aug-14-2014.pdf
  18. Varun Varadarajan, Regulations in Advertising,https://www.slideshare.net/VarunVaradarajan/regulations-in-advertising

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