Opinion | Patanjali Saga Is A Reminder That India Needs Better Ad Regulation

On April 10, the Supreme Court of India pulled up yoga guru Ramdev and Patanjali Ayurved managing director Acharya Balkrishna, refusing to accept their unconditional apology for issuing misleading advertisements. The Bench, comprising justices Hima Kohli and Ahsanuddin Amanullah, also criticised the Uttarakhand government for its failure to act against Patanjali Ayurved for violating the law. 

In a significant remark, the court said an apology given to it could not be taken lightly as there was a larger issue concerning public health. "We are also concerned about the FMCGs [fast-moving consumer goods companies] that are taking consumers up the garden path and making people buy their products, who end up bearing adverse consequences. There are major fault lines in the system and this fault line is not at the cost of your company but the health of the public," the court said.

The apex court, questioning the state government for keeping its eyes "shut", took strong exception to the Uttarakhand government's apparent lack of action regarding Patanjali's exaggerated claims about the effectiveness of its products and its criticism of modern medicine during the peak of the Covid-19 pandemic.

According to the Advertising Standards Council of India's (ASCI) half-yearly complaints report published in November last year, healthcare-related ads were at the top in terms of violating the law. They constituted 21 per cent of all processed ads. The report also observed that there was a significant rise in the number of ads that directly went against the Drug and Magic Remedies Act of 1954.

Why The Case

The Indian Medical Association (IMA) filed a petition in the Supreme Court in August 2022 based on a Patanjali advertisement published in several newspapers in July the same year. The advertisment, titled 'Misconceptions Spread By Allopathy: Save Yourself And The Country From The Misconceptions Spread By Pharma And Medical Industry', featured yoga expert Ramdev calling allopathy a "stupid and bankrupt science" and claimed that allopathic medicine was responsible for a large number of Covid-19-related deaths in the country.  

On November 21, 2023, during the first hearing in the case, the court orally warned Patanjali against false claims and said it would impose a fine if the company didn't stop publishing misleading advertisements. Less than two months after that, however, the court received an anonymous letter flagging the continued publication of false and misleading advertisements by Patanjali. Taking cognisance of it, the court issued a contempt notice to Patanjali Ayurved and its MD for flouting its orders. The SC also panned the Central government for not restraining the company. 

In March, the court, upon not having received a reply to the contempt notice, passed an order seeking the personal appearance of Balakrishna and Ramdev. The Uttarakhand government was also made a party. Both Balakrishna and Ramdev issued an apology, but the top court on April 2 dismissed it as mere "lip service", criticising the company for failing to file proper affidavits and giving it a week to do so. On April 10, however, the court ultimately rejected Patanjali's apologies over the fact that they were first sent to the media. "Till the matter reached the court, the contemnors did not find it fit to send us the affidavits. They sent it to the media first, until 7.30 pm yesterday it was not uploaded for us. They clearly believe in publicity," it said.

Past Incidents

There have been several cases involving misleading advertisements. In December 2016, a Haridwar court had imposed a Rs 11 lakh fine on Ramdev's company, Patanjali Ayurved Ltd. The penalty arose from charges of misbranding and misrepresentation of its products.

In the April of 2023, a huge controversy erupted again when a viral video revealed that Bournvita, produced by Mondelez International India, contained dangerously high amounts of sugar. The National Commission for Protection of Child Rights (NCPCR) issued a notice to the company, ordering it to  withdraw all misleading advertisements, packaging and labels. Of course, the advertisements weren't stalled, but the brand did claim that it had reduced the quantity of sugar in the children's drink. 

Legal Regulation

Misleading advertising can cause serious harm to consumers.  And in the case of health-related products, such ads can be even more dangerous. "In the present case, since the primary business is in the medicinal healthcare sector, laws such as the Drugs and Magic Remedies (Objectionable Advertisements) Act of 1954, the Drugs and Cosmetics Rules, 1945, and the Advertising Standards Council of India's Regulation Code and Consumer Protection Act, 2019, apply," says Aditya Bharat Manubarwala, a Supreme Court advocate. 

Internet and the emergence of new ways to advertise have further aggravated the challenge. Regulation has been unable to keep pace with the changing nature of marketing. Advertisement and promotional material can reach even the remotest corners of the country today with very little expenditure, thanks to smartphones and social media. Our actions in real life are defined by the myriad advertisements and promotional content we see on our social media. Weight loss, fair complexion, healthy oil for healthy heart products...the list is endless. Brands paint a rosy picture, and consumers take it as gospel truth.

"A brand is a trust. A trust that a consumer reposes in an offering. And this trust must not be broken or even attempted to be broken. Brand ethics is a serious business," says Harish Bijoor, founder of Harish Bijoor Consults Inc. "Corporate entities, brands and their bait, and lure offerings are meant to be integrity-oriented offerings. One must not swerve away from the narrow and tight track of integrity. The gold standard globally is to tell the truth and plain truth. No exaggeration. No falsification. No lure that is a lie or even a half-truth."  

Experts say along with other deterrents, brands should also be made to issue corrective advertisements so as to alert consumers about their wrongful claims earlier. "Existing laws say that any advertising should not be misleading...An advertisement for medicines should never make any promise or claims of curing the diseases," Manubarwala says. The need of the hour is a cohesive legal framework and awareness and active self-regulation to guarantee quality communication between brands and the public.

(Bharti Mishra Nath is a senior journalist)

Disclaimer: These are the personal opinions of the author