ASCI investigates complaints against 251 ads in May 2020

In May 2020, the Advertising Standards Council of India (ASCI) investigated complaints against 251 advertisements, of which 23 were promptly withdrawn by advertisers. ASCI acted against 222 advertisements on a suo motu basis and its Consumer Complaints Council (CCC) upheld 209 cases.

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Of the complaints, other than those against the withdrawn advertisements, the CCC evaluated 228 advertisements. Complaints against 221 were upheld. Of these, 162 belonged to the healthcare sector, 47 to education, 1 to food and beverages, 1 to personal care and 10 to other category.

As the lockdown was enforced across India, several advertisers, especially in healthcare, made false claims about Covid-19 cures and preventions. The Ministry of AYUSH sought help from ASCI to alert it about such advertisements. In the months of April and May over 100 such cases were flagged to the regulator.

This period also happened to be the run-up to the Consumer Protection Act, 2019, coming into force on July 20. The law marks a new era of consumer rights in India, providing for jail terms and steep fines for errant marketers. Welcoming it, ASCI is hoping to collaborate with the Central Consumer Protection Authority (CCPA) for effective co-regulation.

The CCPA, it has been announced, will be headquartered in New Delhi and its members have been named. We are delighted with how fast the government is moving on this matter and we welcome the newly-named CCPA members.

ASCI already has a successful MoU with the Department of Consumer Affairs (DoCA). It hopes to work closely with the CCPA on advertising codes and complaint redressal.

In 2015, ASCI and the DoCA tied up to launch the Grievance Against Misleading Advertisements (GAMA) initiative, a portal on which complaints against errant advertisements could be lodged. ASCI manages the back end, judging every complaint received as per its codes. When advertisers do not assure compliance, it is escalated to the regulatory authority. Since the launch of GAMA, ASCI has looked at over 15,500 complaints on the portal. This is a perfect example of co-regulation.

Rohit Gupta

Rohit Gupta, Chairman of ASCI, said: “We believe in the effectiveness of co-regulation – essentially self-regulation acting in alignment with government laws and guidelines. The new law is a tremendous opportunity for the advertising industry and brands to raise their standards even higher and to put the consumer firmly at the centre of their efforts. It paves the way for advertising that is more informative and honest while introducing serious disincentives for violators.”

As an advertising self-regulator, ASCI has succeeded over the past 35 years to establish and maintain consumer trust in advertising, acting swiftly and effectively against misinformation. With the new law in place, ASCI is strengthening its monitoring mechanism by including digital media in it. Its National Advertising Monitoring Service already tracks potentially misleading ads nationally for suo motu action.

On the impact of Covid-19 on the advertising industry in general and ASCI in particular, Gupta said: “The past four months have been extremely challenging as we got familiar with virtual processes of monitoring advertisements and the functioning of the CCC. All teams are now well aligned to ensure smooth processing and timely action.”

Healthcare: - 162 advertisements complained against

• Direct complaint (Three advertisements)
• Suo Motu Surveillance by ASCI (159 advertisements)

Education: - 47 advertisements complained against

• Suo Motu Surveillance by ASCI (47 advertisements)

 Personal Care: - 1 advertisement complained against

• Direct complaint (One advertisement)

Food and Beverages: - 1 advertisements complained against

• Direct complaints (One advertisement)

Others: - 10 advertisements complained against

• Direct complaints (Seven advertisements)
• Suo Motu Surveillance by ASCI (Three advertisements)

Direct Complaints:

The advertisements given below were complained against by the general public or by industry members. Of the 29 advertisements complained against, 10 advertisements were promptly withdrawn by the advertiser on receiving communication from ASCI. For the remaining 19 advertisements, complaints against 12 advertisements were upheld by the CCC. Three belonged to Healthcare,  one belonged to the Food and Beverages, and one belonged to personal care. While, seven advertisements belonged to the others category. Seven other advertisements were not considered to be objectionable or in contravention of the ASCI code.

Health Care

The following advertisements were considered to be, prima facie, in violation of The Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) order dated April 1, 2020 prohibiting publicity and advertisement of AYUSH-related claims for COVID-19 treatment in print, TV and electronic media.

Food and Beverages

1. Hindustan Unilever Ltd (BRU Instant): The Television & YouTube Advertisement’s claim, “Tea won’t give you that much energy” qualified with, “Creative Visualization. Use of 100 milk is recommended for making coffee. As per our recommended protocol, more milk in coffee gives more energy.” was not substantiated. The claim unfairly discredits tea, as an entire category.  The CCC disagreed with the disclaimer stating that the product effect being depicted is a “creative visualization” as it is clearly a product performance claim. The depiction in the advertisement is actually a day to day ordinary situation at home and the action of running up the stairs and picking up suitcases is not really a creative hyperbole – it appears to be a realistic depiction of product effectiveness. Moreover, as per the disclaimer, the benefit of energy enhancement was attributed to higher content of milk. Additionally, neither caffeine nor milk is likely to give this kind of enhanced energy.  The advertiser’s own study indicates that consumers use 62% milk and 38% water while making tea and 73% milk and 27% water while preparing coffee. While the advertiser tries to create an advantage by recommending 100% milk for preparing Instant coffee, the energy differential between the two is quite miniscule to result in any tangible benefit. The disclaimers in the advertisement place reliance on 100% milk to be added to the product for more energy. Conclusively, the disclaimers indicate that it is the milk in the coffee that provides more energy rather than the product in itself. Furthermore, the subject matter of comparison is chosen in such as a way as to confer an artificial advantage upon the advertiser. The CCC observed that advertisement does not attribute the energy enhancement benefit to the comparison of caffeine content in the two beverages. Nevertheless, the range of caffeine content referred to by the advertiser in tea preparation was very wide i.e. 3.3 to 30 mg per gram. The actual caffeine levels in prepared tea would vary greatly depending upon the method of preparation, as well. Therefore, a theoretical comparison by taking a mean of the values was considered to be inappropriate. The CCC assessed that the claim, “Tea won’t give you that much energy” qualified with, “Creative Visualization. Use of 100 milk is recommended for making coffee. As per our recommended protocol, more milk in coffee gives more energy.” was not substantiated. The advertisement also violated ASCI Guidelines for Disclaimers.

Personal Care

1. Colgate-Palmolive (India) Ltd (Colgate Swarna Vedshakti): The print advertisement’s claims, “A Pure mouth means a healthy you”, “Imagine this funnel is your mouth. See what happens when it’s unclean? The germs can enter your body. And when your body is not healthy, there could be a higher risk for all kind of diseases. Like diabetes, heart disease, respiratory problems and what not” and “But if you brush with Colgate Vedshakti every day, the germs are destroyed in the mouth itself. So, they can’t enter your body, and you can stay healthy” were inadequately substantiated, distort facts and are misleading by ambiguity, omission and exaggeration. For the claim, “A Pure mouth means a healthy you”, the CCC did not agree with the advertiser’s contention that a “pure mouth” signifies the importance of a clean and hygienic mouth. The CCC was of the opinion that “pure” in the current context is superlative in nature. What the product actually delivers is “cleansing” and not “purification”. Oral cavity naturally has normal bacterial flora and a balance exists in a person’s oral microbial population.  If this balance is lost, opportunistic microorganisms can proliferate, resulting in the initiation of gingivitis and periodontal diseases. However, the advertisement misrepresents these facts by stating that daily brushing with the product destroys the germs in the mouth itself so that they cannot enter the body “and you can stay healthy”. (incorrectly represented as a dirty versus clean funnel - with the heading “Germs from your mouth can enter your body” and sub heading “A Pure mouth means a healthy you”) . When read in totality, by implication it further links this “unhealthy” status (i.e. not brushing with Vedashakti) with a higher risk of “all kinds of diseases” – diabetes, heart disease, respiratory problems etc. being quoted in particular. This is contradictory to the advertiser’s assertion that there is no suggestion that the toothpaste is preventing various diseases. As per data submitted by the advertiser (National School Oral Health Programme) – “The mouth is teeming with bacteria — most of them harmless. Normally the body's natural defences and good oral health care, such as daily brushing and flossing, can keep these bacteria under control. However, harmful bacteria can sometimes grow out of control and cause oral infections, such as tooth decay and gum disease.” The CCC noted that the print advertisement portrays a very different picture of the importance of oral hygiene and is alarmist in nature, creating a scare in the minds of consumer by directly linking non-usage of the product to various diseases. The advertisement makes no reference to the initial stages of poor oral hygiene. Merely not brushing one’s teeth do not lead to diabetes or heart diseases. Some of these diseases are inherent in nature, genetic / hereditary as well. Reference quoted by the advertiser themselves mentioned that “in most cases, the strength and exact nature of the link between common oral problems to illnesses is unclear, but they suggest that dental health is important for preserving overall health.”  Further, while the advertiser did provide in vitro studies on the anti-bacterial and antibiofilm efficacy of the product versus a placebo, they did not submit any product specific in vivo efficacy data for prevention of oral problems and diseases like gingivitis and periodontitis.

Others

1. Bundl Technologies Private Limited (Swiggy): The mobile app advertisement’s claim of “safe packaging” was not substantiated and is misleading by ambiguity and omission of reference to this being the responsibility of the restaurant partners. The CCC noted that as per the advertiser’s conditions indicating “Safety Standards” as well as e:mailer stated that – “All orders are packed (even those with single containers or meal trays) in an outer bag, so that the food container does not come into direct contact with anyone during the transit” and “All orders are packed in an outer bag, so that so that the food container does not come into direct contact with anyone during the transit. However, we still recommend transferring your meal into another clean container.”, respectively. The CCC also viewed the photographic evidence of an “un-sealed and partially open pizza container” provided by the Complainant. The CCC did not agree with the advertiser’s assertions that “non-adherence of safety norms is the restaurant's responsibility and any deviation thereto shall be the restaurant's liability”. The advertiser in their own communication as a “delivery partner” under “Safety Standard” was assuring “Safe packaging” to their customers. Therefore, CCC did not agree with the advertiser’s contention of putting the onus of safety measures on the restaurants and remaining silent on their own responsibilities as the delivery partner. Further, the Terms and Conditions for Restaurant Partners stated “We are also urging partners to pack all orders in separate bags to avoid direct contact with anyone during transit and to provide for a hand sanitizer facility to Deliver Partners at the order pick-up point”. The advertiser was only “urging” its restaurant partners to follow safety norms whereas this should have been a standard requirement or SOP for the restaurant partner, to honour the claim of “Safe packaging”. The CCC therefore held that the advertiser should not have made claims of “safe packaging” if this were to be restaurants’ discretion to follow these norms. The advertiser failed to provide any conclusive evidence to prove strict measures / contractual obligations / quality control systems put in place by them to ensure this outer packaging with their other restaurant partners. The CCC noted that though there may be a possibility of an occasional unintentional lapse in the fulfilment of an advertised promise or claim in the context of mass distribution of goods and services, the same could not be held in this present case. The advertiser ought to have provided evidence of safe packaging norms observed by their restaurant partners. Further, in the context of an advertisement declaring safe packaging under the current COVID-19 pandemic, the advertiser as an entity dealing in food delivery services is all the more responsible for safe and hygienic food deliveries.

2. Vodafone Idea Limited (Vodafone REDX): The website and hoarding advertisements claims, “Upto to 50% faster data speeds”and “unlimited data” and the absence of disclaimer for comparative claim was considered misleading. The CCC observed that customers can be preferentially served using differential QoS (Quality of Service) implementation algorithms on packet switched networks, like the current 4G deployments. Moreover, LTE networks provide additional possibility of physical layer resource blocks partitioning as well. So, a 50% improvement on data speed for a set of users, or a figure several times more than this value, is possible once the provider implements such a customer classification algorithm. The CCC observed that in the initial data provided by the advertiser some infrastructure augmentation in the form of a network merger is alluded to, but it seems to cater to most of the existing customers in those networks. The CCC noted that the subsequent OSS report provided by the advertiser was based on actual throughput observed for the Gold QoS customers (REDX) vs others. This throughput ranges from @ 1.75x to 2.57x vs other (non-QoS) data users in the four markets for which data has been compiled for a two-week period. The reports indicated that on an average the advertiser delivered >2x and in >86% cases >1.5x. The CCC further observed that through the OSS report, the advertiser was able to clarify that at most 1% of Vodafone users could avail REDX. The revised reports were able to substantiate the advertiser’s claim of “50% Higher Data Speeds”. However, this comparison was against standard Vodafone customers.  The CCC opined that the advertisements under question should correctly convey “50% better service for REDX against standard Vodafone customers” as the said claim had nothing to do with other service providers. Further, a disclaimer could be included indicating that the improvement quantified is on the average, which amortizes geographic effects, proximity, mobility, network loading, etc. The advertisement also violated ASCI Guidelines for Disclaimers in Advertising.

3. Supreme Industries Limited (Supreme Range of Products): The TVC advertisements claim “India’s Ki No. 1 Plastic Product Company” was not substantiated with verifiable comparative data or market research data of the advertiser’s company and other similar plastic product companies in India, to prove that advertiser’s company is in the leadership position (No.1) than all the rest in terms of value or volume share, or through an independent third-party validation. The source for the claim was not indicated in the advertisement and the advertisement also violated ASCI Guidelines for Disclaimers in Advertising.

4. TV Today Network (India Today Television): The Ad-Emailer claims “The Network Of No.1s”, “Aaj Tak – No.1 Hindi News Channel” and “India Today Tv – No.1 English News Channel”. The Consumer Complaints Council (CCC) viewed the Ad-Emailer and observed that the advertiser claims to be “The Network Of No.1s”. The advertisement also makes claims of – “Aaj Tak – No.1 Hindi News Channel” and “India Today Tv – No.1 English News Channel”. The 1^st claim is qualified by the disclaimer, “Source: BARC, Males 22+ AB, Megacities, wk – 15’20, Gross Impressions in 000s” and the 2^nd claim is qualified by the disclaimer “BARC, Market: India, TG: 2+, Time Period: W12-W15’20 / Average Weekly reach in 000s” at the bottom of the Ad-Emailer. While the claim for “Aaj Tak – No.1 Hindi News Channel” is qualified by data for at least four consecutive weeks as stipulated by BARC Guidelines but the claim “India Today Tv – No.1 English News Channel” falls short on those merits. The CCC concluded that the claim “India Today Tv – No.1 English News Channel” when read in conjunction with the titular claim, “The Network Of No.1s” were inadequately substantiated. The Ad-Emailer contravened the BARC Advisory.

Others - Automobile

5. Suzuki Motorcycle India Pvt. Ltd. (Suzuki Access 125): The TVC and YouTube advertisement’s claim “Now with BS6 Technology, Kam Peeta Hai” is misleading by exaggeration, implication and omission. The Consumer Complaints Council Review (CCC-R) panel, did not agree with the advertiser’s contention that “Kam peeta hai” is a subjective statement to the effect that their product was effective. In fact the advertiser themselves state that the “advertisement makes a subjective claim that the advertised product is fuel efficient, which when translated into Hindi, using zany humour translates to “kam peeta hai” - which is also in general public parlance, a common way of addressing mileage of an automobile”. This aspect of mileage of the automobile ought to have been objectively ascertained via technical tests. Moreover, the statement that their product consumes “less” implies that other products, whether their own other models or other competitor products, consume more petrol. The advertiser themselves corroborated this as per the SIAM data of 2018-19 for their old 125 CC model as the basis for using the claim in the past. The CCC-R, concluded that in the context of a two wheeler, claim “yeh kam peeta hai” is clearly a product performance claim in terms of fuel efficiency. The advertiser neither provided any report for their advertised product nor any comparative data versus other products (their own / competitor). The CCC-R noted that the advertiser launched their product with the advertised claim in January 2020, much earlier to the COVID-19 pandemic. An advertiser is expected to conduct technical testing of their product PRIOR to the launch and arrive at the fuel consumption values. Any claim support data is also required to be generated PRIOR to the advertising campaign. Information about fuel efficiency of a two wheeler is a critical factor for purchase decisions by a consumer. A mere perusal of the advertiser’s web-site (https://www.suzukimotorcycle.co.in/product-details/all-new-access-125#features) indicated that the product is featured prominently with a statement “Presenting the upgraded Version of India’s favourite Access 125 with more appeal and features.”  alongside the claim “All new Suzuki Access 125 Kam Peeta Hai Now with BS6”. Such communication also implies that the newly introduced model is superior to the old model. Therefore, CCC rejected the advertiser’s argument that the data pertaining to 2018-19 is still relevant.

6. Kia Motors India Private Limited (Kia Seltos):  The TVC and the YouTube advertisement is depicting a young girl practicing football. From her demeanour, she appears to have a mean streak in her. She deliberately chooses various objects like the garbage bin, painting on the wall, a bell, a gate post and doors and mirrors of cars as target practise, which are either public or private property. She then decides to aim at a parked Kia Seltos but gets startled when the car makes a noise.  Getting discouraged, the girl moves away. The advertisement ends with a voiceover, “No one messes with a badass.”  The CCC did not agree with the advertiser’s argument that the visuals shown in the advertisement were a slice of life or that they were stunts. In the visuals of the advertisement, the girl targets the garbage bin which subsequently falls down and is left open, she then targets a bell which rings after being hit as well as hits the side and mirror of the car gets tilted. These places or things in themselves are public as well as private property and are not meant to be vandalized as depicted. Regardless of any disclaimer in the advertisement, or how the advertisement eventually concludes, the children viewing this advertisement are bound to consider destruction of public or private property to be acceptable and are likely to emulate the same. Based on this observation, the CCC concluded that the advertisement was likely to create a negative impression on children.

7. Honda Motorcycle and Scooter India Pvt. Ltd (Honda): The print advertisement claims “Rs. 10,000 Cash Discount” was not substantiated and is misleading by gross exaggeration. The CCC viewed the print advertisement and observed that the advertiser was promoting various offers on sale of their products.  The advertiser claims to provide a savings of up to Rs. 23,000 which is bifurcated into a Rs.10,000 cash discount, up to Rs. 5000 cashbacks on ICICI credit and debit cards and up to Rs.8000 savings as compared to the price of BS-VI models. The CCC observed that the complainant had approached the dealer to avail of the offer, the complainant was denied the said offer by both the dealer and the advertiser. Further, the advertiser did not provide any evidence of any other customers who successfully availed the said offers in the advertisement.

Suo Moto Surveillance Advertisements 

The advertisements listed below were picked up through ASCI’s Suo Motu surveillance of Print and TV media through the National Advertisement Monitoring Services (NAMS) project. Out of 222 advertisements that were picked, in 13 cases the advertisers promptly confirmed that the advertisements were being withdrawn post receiving the ASCI communication. All other 209 advertisements examined by the CCC were found to be misleading. Of these 209 advertisements, 159 advertisements belonged to the Healthcare sector, 47 belonged to the Education sector and three were from the “Others” category.

Healthcare 

1. Ashish Dental Hospital: The print advertisement’s claim of being “Awarded the most trusted hospital in Bilaspur” was not substantiated with supporting ranking data. The advertiser did not provide any copy of the award certificate, reference of the award received such as the year, source, details of the process for award selection, criteria for granting the award, survey methodology, parameters considered, questionnaires used, names of other dental hospitals that were part of the survey, the outcome of the survey, and details about the awarding body. The print advertisement contravened ASCI Guidelines for Usage of Awards and Rankings in Advertisements, ASCI Guidelines for Disclaimers in Advertising.

2. Fastrack 24H Weightloss Centre: The television advertisement’s claim “Capital Dehradun’s only center where women’s dream of reducing weight is fulfilled, which gives result in one month” was not substantiated with any data of they being able to provide results of the magnitude as claimed in the advertisement in one month for each of their customer. The second claim  “Maximum Weight Loss 64 kgs (11 months)” was not substantiated with supporting evidence. The advertiser did not provide details of their weight reduction program nor any weight loss data based on robust controlled studies to prove that majority of their customers have achieved significant weight loss (of about 64 kgs in 11 months).  The claim implies that such a degree of weight loss is feasible for every customer regardless of their health condition. Furthermore, efficacy being depicted via images of before and after the treatment by showing weight reduction is misleading by gross exaggeration.   

The following advertisements were considered to be, prima facie, in violation of The Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) order dated April 1, 2020, prohibiting publicity and advertisement of AYUSH-related claims for COVID-19 treatment in print, TV and electronic media. The advertisers were informed of these potential violations and contravention of Chapter III.4 of the ASCI code with a copy to the Ministry of AYUSH.

DMR Violation

The following advertisements were considered to be, prima facie, in violation of The Drugs & Magic Remedies Act and are being referred to the Ministry of AYUSH. The advertisers were informed of these potential violations and contravention of Chapter III.4 of the ASCI code with a copy to the Ministry of AYUSH.