The fall guys

Proposal to criminalise ‘misleading’ endorsement unfairly shifts the onus from regulator to celebrity.

Is it fair to expect Madhuri Dixit, who has appeared in Maggi noodles advertisements, to pierce through the thicket of claims and counter-claims on technical aspects of food chemistry when even the Food Safety and Standards Authority of India, with an army of technicians and labs at its disposal, stumbles on this issue? Well, that’s what a parliamentary panel on the Consumer Protection Bill, 2015, would expect her to do. It has recommended that “endorsers/ celebrities” be criminally penalised for “misleading” advertisements with a Rs 10 lakh fine and/ or imprisonment of up to two years for a first offence. If things go according to the panel’s plan, the scales would be unfairly and disproportionately loaded against endorsers and the onus shifted for ascertaining product safety away from regulators.

In China, attempts to prosecute Jackie Chan for his endorsement of a “chemical-free” shampoo with allegedly cancer-causing ingredients have failed. Internationally, in the US, for example, celebrity endorsers are subject to civil liability for making false claims. But, one, such liability is typically indemnified by the brand owner and, two, a test of “reasonable contemplation” by the endorser — for instance, has the product been signed off on by the safety regulator? — is applicable. In the case of criminal liability, however, these two alleviating conditions will likely not hold. In India, where the IPC already criminalises attempts to intentionally sell “noxious” food, and the Food Safety and Standards Act, 2006, has provisions for fines for false advertising, additional criminal penalties are overzealous and unnecessary.

The parliamentary panel’s recommendation is troubling, especially when applied to the realm of food safety and consumer products, where the shifting sands of science frequently throw up new heroes and villains. So is it kosher to say that eggs and butter make for a healthy breakfast? Or that Marmite is good for you thanks to its vitamin load? The UK says it is, although Denmark had banned it. You better be sure before you ad lib.