Food safety and celebrity endorsement became a subject of debate when a few days ago “Maggi” noodles’ brand ambassadors including Bollywood stars Amitabh Bachchan, Madhuri Dixit and Preity Zinta were warned of legal action by a government agency for misleading representations. Related to the same issue, a criminal case against these celebrities was instituted in a district court of Bihar. The issue has raised an interesting legal debate with regard to advertisements, celebrity endorsements, their representations and their liabilities especially in regard to food products.
Indian law does not recognise an “endorser” or “brand ambassador” as any particular legal entity and also does not distinguish between a celebrity as an endorser and a “well-known person” as an advertising artist. Hence whether these celebrities will have a greater liability then a paid actor in law is a subject of debate.
The Federal Trade Commission (FTC) guide of USA (15 Code of federal regulation Part 255) defines endorsement as “any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness, or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.”
Section 3 of the Food Safety and Standards Act, 2006 of India (hereinafter FSS Act) defines “advertisement” as “any audio or visual publicity, representation or pronouncement” made through “print, electronic media, Internet or website, and… any notice, circular, label, wrapper, invoice or other documents”. Surely the definition is wide enough to cover all forms of promotions and publicity aimed at advertising a product for sale.
According to Section 23 (1) of the FSS Act, “no person shall manufacture, distribute, sell or expose for sale… any packaged food products which are not marked or labeled” as per regulations. The labels “shall not contain any statement, claim, design or device which is false or misleading in any particular”. It adds. “Every food business operator shall ensure that the labeling and presentation of food… and the information which is made available about them… does not mislead consumers.”
The expression “no person” used in the section may have a larger connotation. However any interpretation that considers a brand ambassador as a person who may be held responsible for sale “or expose for sale” will be beyond reasonability. The section that focuses on proper packaging and labeling fixes liabilities only on persons who are directly responsible for manufacturing, selling or distributing a food product in regard to the proper packaging and labeling of such food product.
A brand ambassador is not directly involved in manufacturing, selling or distribution and has no control on packaging and labeling of the food products. Therefore he or she cannot be identified as a responsible person for the purpose of this section.
Section 24 (1) of the FSS Act prohibits making of any advertisement “of any food which is misleading or deceiving or contravenes the Act, the rules and regulations under it.” The expression “no advertisement shall be made” creates a very sweeping liability which may extend to advertisement producer, ad agency, and may be even to a brand ambassador or an endorser too, although this is not explicitly stated.
Further, sub section 2 of this section may bring liability on any brand ambassador or endorser if he falsely represents that the foods are of a particular standard, quality, quantity or grade-composition. But it requires a deliberate false representation. In the present case any claim of “false representation” may not hold much ground when it is government agencies that have given all required certifications. Only after believing these to be proper did celebrities agree to endorse the product.
A brand ambassador does not have any means of more credible satisfaction about the food product then certification by government agencies, presumed to have been granted after proper tests.
The same sub section also fixes liability for making a false or misleading representation in regard to the need for the product or its usefulness, or giving a public guarantee of efficacy that is not based on adequate or scientific justification. Any representation with such guarantee may make the brand ambassador liable for unfair or deceptive trade practices. If such a claim is made by the ambassador, the burden of proof will lie on the person defending the claim to show that the guarantee was indeed based on scientific justification. In the Maggi case, though, no such claims have been made by these celebrities.
The expression “Unfair Trade Practice” used in the FSS Act has not been defined. However it has been defined under the Consumer Protection Act, 1986 and includes any trade practice used for the purpose of promoting sale, use or supply of any goods by making any statement, whether orally or in writing or by visible representation, which falsely represents that the goods are of a particular standard, quality, quantity, grade, composition…. or any misleading representation concerning the need for or the usefulness of any goods. But the Consumer Protection Act fixes liabilities and allows complaints only against a trader in case of any goods and a service provider in case of any service; a brand ambassador or endorser will hardly fall in either category.
Section 53 (1) of the FSS Act may pose a problem for brand ambassadors. It makes liable for a fine of up to Rs 10 lakh “any person who publishes, or is a party to the publication of an advertisement, which falsely describes any food, or is likely to mislead as to [its] nature or substance or quality… or gives false guarantee”. Exercising powers under the Act, the Food Safety and Standards Authority of India in 2011 had issued an advisory in regard to misleading claims.
There are no judicial precedents in India in regard to celebrity endorsements and representations made by them in advertisements. However there is American case law. In FTC vs. Garvey (2004), decided by the US Court of Appeals, Ninth Circuit, the FTC had instituted proceedings against a celebrity baseball player, Steve Garvey for a false and misleading advertising for dietary supplements that claimed to be helpful in weight loss. The appellate court held that to hold him liable, the FTC had to prove that Garvey had actual knowledge of the material misrepresentations, was recklessly indifferent to the truth or falsity of a representation, or had an awareness of a high probability of fraud along with an intentional avoidance of the truth. The court held that the FTC failed to meet its burden. Similarly in the Cooga Mooga, Inc.(1978) case too, celebrity endorsement become the subject matter of litigation.
It must be noted that while determining any legal liability of celebrities in the Maggi case, the prosecuting agency will have to take into consideration the fact that two among the three had already stopped endorsing the product many years ago.
An argument to fix some tortuous liability may be extended on the ground that statements made by brand ambassadors cajole consumers to use the product creating a direct link between their representation and increased consumption. However in case of a food product involving the taste ingredient, it does not seem logical to contend that upon endorsement by a celebrity somebody would change his tastes or like a new taste.
Clearly, legal liabilities of endorsers in general, and in case of food products in particular, are ambiguous where the endorser’s role and responsibilities are unclear in law. Any interpretation of extant laws to bring celebrity endorsers within their ambit would be disproportionate and inappropriate.
But surely the present “Maggi” issue provides sufficient reason for lawmakers to amend laws to fix explicit and proportionate legal liability of celebrity brand ambassadors and endorsers. The difference between a paid actor taking part in an advertisement and an endorser or brand ambassador may also be made clear to determine the extent of liability as in American law.
In America, the Federal Trade Commission (FTC) has provided a guide concerning the use of endorsements and testimonials in advertising (15 Code of federal regulation Part 255), which says that if a celebrity is in fact an endorser then in such a case, endorsement must “reflect the honest opinions, findings, beliefs, or experience of the endorser”. While not required to become an expert on a product or industry, the celebrity, if reading from a script, may have an obligation to make reasonable inquiries of the advertiser to confirm that there is an adequate basis for assertions made in the script. This may include requesting substantiation for product claims made in the advertising campaign and requesting samples of the product for personal use.
In essence, the celebrity should not ignore signs that claims made about a product appear to be false or misleading. If an advertisement represents that the celebrity uses the endorsed product, then the endorser must be or have been a bona fide user at the time the endorsement was given. Once an endorsement is secured, it can be run only so long as the opinion of the endorser remains the same while remaining the bona fide user of the product.
On the principle of caveatemptor, some disclosures such as “I personally have not verified in terms of specific purity and quality of the product” may be made mandatory. Further it may also be made mandatory to disclose in public the amount received for a specific advertisement or endorsement.
The writer is an ICSSR Doctoral Research fellow at National Law School of India University, Bangalore.
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