Do celebrities owe us a duty for the claims they make in advertisements?
The favorite midnight snack of many, Nestlé’s Maggi has been banned by the Food Safety and Standards Authority of India (FSSAI) because of problems associated with the quality and labeling of the product. The notices issued to various celebrities who had been endorsing Maggi noodles and the orders for lodging FIR against them have reignited an extremely important legal debate concerning the liability of celebrities for the product endorsements they make. This article discusses the duty of celebrities for their endorsements, relevant laws in India and the precedents in some other countries.
Making a case for celebrity endorsement
There are many questions which crop up when we seek to make celebrities liable for their claims in advertisements. First among them being do the people actually believe in the claims celebrities make? Are the products bought because of endorsements or are they bought first and endorsements only reassure the consumer? Well, there is no straitjacket formula to these questions unlike believed by some. It certainly depends on “the context, the product or service endorsed, the expertise of the celebrity in that area, the mass appeal of the celebrity and the reliance of individual consumer”. This brings us to a more nuanced argument. Does the fact that celebrities have a right to publicity which they harness economically while advertising, impose a duty on them to not use this right in a manner detrimental to the general public? Or since the celebrities have a right to publicity, the audience has a reciprocal right of reliance? After all, unlike the movies, the fact that the plot and characters are fictional is never reflected/shown in an advertisement. In fact the representations made by the likes of Ms. Padukone are a “cause in fact” of the pecuniary loss to the consumers to the extent of the difference between an effective gym equipment for losing one’s weight and the Kellogg’s Special K. Similar arguments can be made for every misleading advertisement. Some make a superficial distinction between the celebrities giving personal testimonies versus the celebrity playing a role in the advertisement, for instance Ms. Dixit is playing the role of a mother in the Maggi advertisement. It is argued that a celebrity should be liable only when (s)he is making a personal testimony and not when (s)he is playing a role of another. However, it is extremely difficult to accept this difference. Audience generally does not think this way when relying upon the claims. Further, as stated above, unlike films, the fictional and impersonalized role is not emphasized in advertisements, thus making no space for this argument. Another argument put forth by the people disagreeing with making celebrities liable is based on the fact that celebrities have to no way in which they can identify the truthfulness of the statement which they are made to say in the testimonial by the ad-gurus. However a simple counter to this is requiring celebrities to test, try and experiment the product to find out. Similar has been legislated upon in various countries as we will see in the next section. While this may sound a little far-fetched in the case of Maggi noodles, after all, checking the amount of lead is the duty of the FSSAI and not Ms. Dixit’s and every single pack can certainly not be checked by the celebrities, yet celebrities can certainly be made liable for making sweeping claims like a person drinking Drink X can grow twice as taller as (s)he would grow drinking Drink Y (the ad for the health drink Complan). Therefore, there remains a strong case for making celebrities liable.
What are our neighbors and partners in trade doing about it?
In the USA, the Federal Trade Commission Guidelines prohibit deceptive and misleading endorsements by celebrities and make celebrities liable for the same. The endorsers are required to reflect their “honest opinions, findings, beliefs, or experience” in the advertisements. In fact, the advertisers can continue to use the endorsements only as long as the advertiser has a good reason to believe that the endorser continues to remain a bona fide user of the endorsed product. In Europe, the celebrities follow a self-imposed code whereby they refrain from endorsing products harmful to the health of the general public like alcohol, medicines etc. Korea on the other hand has an Advertising Self-regulation Institution which issues guidelines with respect to endorsements and reviews the endorsed advertisements making false advertisements a rarity. Among our neighbors, China makes the endorsers jointly liable with the service provider for the harm caused by the product. Pakistan also has laws forbidding false and misleading advertisements, however it is uncertain whether these laws will also include liability of celebrities for their endorsements. The Malaysian Code of Advertising Practice requires that the endorsements or testimonials contained in advertisements should be based on genuine experience of the endorser over a period of time. Malaysia also has special guidelines for “[p]ersons, characters or group who have achieved particular celebrity status with children”. These celebrities are forbidden from promoting food or drinks in a manner that may undermine the need for a healthy diet however the endorsers are not liable for the same since sanctions are in the form of “withholding of advertising space from advertisers and the withdrawal of trading privileges from advertisers/ advertising agencies”. Singapore has similar laws relating to false advertisements and is also cogitating to put into place specialized guidelines pertaining to children. In Japan on the other hand celebrities participating in false endorsements are made to apologize publicly. This harms the reputation of the endorser decreasing the employment opportunities of these people, forcing celebrities to refrain from making claims with regard to the quality or effectiveness of a product.
What is the law in India?
Section 24 of the Food Safety and Standards Act, 2006 puts restrictions on misleading advertisements. It states, that “no person” shall be allowed to engage in misleading representation concerning the “standard, quality, quantity or grade-composition” and “need for, or the usefulness” of a food product. (S)he should not make any statement which “gives to the public any guarantee of the efficacy [of the product] that is not based on an adequate or scientific justification thereof.” Section 53 of the Act describes the penalty for such false advertisements which can extend to ten lakh rupees. This penalty applies to “any person” and hence should ideally include the celebrities; however there is no case law to support this proposition. The Central Consumer Protection Council (CCPC) has also decided to issue specific guidelines to this effect after the MP High Court directed to set up an advertisement monitoring panel as per the Vibha Bhargava Commission. These guidelines if enforced will allow consumers to claim compensation from celebrities for misleading claims made regarding a product, recklessly or with knowledge that the claim is false.
The case for celebrity endorsement is a strong one considering the status which is accorded to the claims made by these stars and the money which is used in these endorsements. This has been understood across the world and many countries have laws to the effect of punishing celebrities for misleading claims. Indian laws are also developing in this regard and stars in India are becoming more aware with respect to the duty they owe to their fans. For instance recently Amitabh Bachchan stopped promoting Pepsi after a young girl questioned him as to his reasons for endorsing Pepsi which her teacher had termed as poison.