In the era of globalization, everyone is in competition with others and when it comes to the business, the creative strategy of the advertising agencies knows no bounds. The success of the product depends on how effectively it has been presented to the public and a successful marketing strategy advocates for the efficiency of the product. The mantra that “celebrity endorsement enhances the effectiveness of marketing strategy” seems to have gone too far. Often the celebrity appears synonymous with a brand, be it Aamir Khan for Titan, Bollywood Diva Hema Malini for Kent RO or Amitabh Bachchan for Cadbury.

Unbutton my iconic Levis’s ‘501’ jeans!

The show titled ‘Live Unbuttoned’ spirit aired in 2008 where Akshay Kumar was found unbuttoning his jeans by a female model in furtherance to the advertisement of Levis jeans. Subsequently, Twinkle Khanna performed the same stunt in Lakme Fashion Week 2009 that sparked controversy and filing of a complaint against the couple on grounds of serious violation of the ethical guidelines mentioned by the Advertising Standards Council of India  (“ASCI”) as such “an act promotes the means of vulgarity and obscenity”.

Health Warning needed

Many brands of Pan Masala are endorsed by prominent celebs like Shah Rukh Khan (Pan Vilas), Ajay Devgn (Vimal Pan Masala), Sunny Leone (Shilajeet pan masala) and Govinda (Paan-E-Shahee). But the Pan masala advertisements have also come under special attention in the eyes of the regulator and the latest guidelines of ASCI explicitly stated that “the celebrities must avoid endorsing any item that, by law, needs a health warning on its advertisement or packaging”. In 2018, the Delhi government also attempted to ban tobacco advertisements featuring celebrities. 

What the Maggi Row Taught Celebs?: Endorse with Care 

Nestle, a popular MNC, that manufactures Maggi Instant Noodles and has Amitabh Bachchan and Madhuri Dixit as its brand ambassador, has not only landed in a massive food safety scandal but also opened the debate on celebrity endorsement. Back in 2015, the Uttar Pradesh Food Safety and Drug Administration (FSDA) and Bihar Directorate of drugs control (FDA) claimed that Maggi samples contained lead and monosodium glutamate (MSG) way more than the allowable limits and notices were given under the Food Safety & Standards Act, 2006 (FSSA) not only to Nestle but also to Amitabh Bachchan and Madhuri Dixit.

Making Endorser responsible under ASCI Rules 

Advertising Standards Council of India (ASCI), a voluntary self-regulatory council established in 1985, regulates the Indian advertising industry amidst no central statutory agency or uniform legislation in India. In 2017, the council has laid down rules that put larger responsibility on endorsers to do due diligence to make sure that all claims, comparisons, descriptions made in the ads they endorse are not deceptive or misleading. It is also the responsibility of the advertising agency to make sure that the endorsers are aware of ASCI codes. 

Fixing Responsibility under Consumer Protection Act 2019 

The Act fixes the liability on endorsers considering that there have been numerous instances in the recent past where consumers have fallen prey to unfair trade practices under the influence of celebrities acting as brand ambassadors and promoters. It will also strengthen the rights of consumers and also provides a mechanism for redressal of complaints regarding defects in goods or deficiency in services as it provides for the establishment of a Central Consumer Protection Authority (CCPA) to regulate matters relating to a violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of public and consumers. 

Section 21(1) of the Consumer Protection Act, 2019 provides for the authority’s power to immediately cease an advertisement that is prejudicial or misleading the consumer interests. In addition, the authority’s power extends to the imposing of a fine of up to rupees ten lakh, with additional power to bar the endorser from advertising for a year. With all these broad powers, the authority will be in a position to administer advertising.

But there are certain gaps that need to be filled. For instance, there exists no clarity as to who the endorser is and there seems to be inconsistency as to whether penal provisions correspond to only commercial ads or to pro bono ads as well. In addition to this, an obligation was placed on the endorsers to demonstrate due diligence while confirming the advertising claims but no test is prescribed for the same.  Unlike India, the United States has a particular test, that is, a test for ‘fair reason to believe’. The test is regarding whether the endorser actually believes in the functionality and uses the product or not. The endorser is held to be liable if he fails to meet the test.

The US has been one of the experts in the regulation of brand endorsers. From back in the 1970s, the Federal Trade Commission (FTC) regulated ads showing endorsers by guidelines/ advisories and in 2000, it introduced the ‘Guides on the Use of Endorsements and Testimonials in Advertising’. The Guidelines mandate the endorsers to use the product before endorsing it and should not air their experience by making claims simply based on the script of the ad. Further, the guidelines require the disclosure of any link between the organisation selling the product and the endorser of the product, which may have an effect on how people perceive the endorsement.

The Fault in our Starry Ads: With a Great Personality, Comes Great Responsibility

The new development in the jurisprudence of consumer rights will put some amount of liability on the endorser who charges astronomical fees for advertising contracts and the whole advertising industry that woos consumers by exercising unreasonable influence. Now, you can no longer claim ignorance or indemnification. Therefore, an informed and responsible choice is the way to go!

Dikshi Arora is a second-year law student at Rajiv Gandhi National University of Law, CPL 2021-22 Public Policy Fellow and Columnist for CNES, JGU. Shivank Kumar is a student of BA. LL.B. at Symbiosis Law School, NOIDA.