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Law unclear if celebrities endorsing food products can be prosecuted

June,5,2015: The Maggi controversy has opened a Pandora’s box on the legal liability of celebrities who endorse food products even as it exposes ambiguities in the Food Safety and Standards Act (FSSA), 2006, making the current debate an opportunity to interpret judicially the role and liability of brand ambassadors.

Celebrity Prosecution
Celebrity Prosecution

There is no specific word in the Act about the extent, or lack, of liability or duty of care of the brand ambassador, who signs on to promote the brand as its ‘face’ and takes on the role of a marketing representative. Sections 24 and 53 in the 2006 Act deal specifically with advertisements.

Section 24(1) says in general terms that “no advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made there under.” Here, it does not explain whether the term “made” is only confined to commissioning the advertisement or its actual making. In the latter case, a brand ambassador does play a part.

One of the primary statutory objectives of the FSSA is to “ensure availability of safe and wholesome food for human consumption” and it makes the promoter, manufacturer, packer, wholesaler, distributor, seller and even the ‘manager’ of a food business outlet liable for violations, including ‘unfair trade practice’ in several instances.

But there is no specific word in the Act about the extent or lack of liability or duty of care of the brand ambassador, who signs on to promote the brand as its ‘face’ and takes on the role of a marketing representative.

Wide definition

The Act affords a comprehensive definition of the term ‘advertisement’ in Section 3 (1) (b) to mean “any audio or visual publicity, representation or pronouncement made by means of any light, sound, smoke, gas, print, electronic media, internet or website and includes through any notice, circular, label, wrapper, invoice or other documents.”

Two sections — Section 24 and Section 53 — in the 2006 Act deal specifically with advertisements.

Section 24 (1) says in general terms that “no advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made there under.” Here, it does not explain whether the term “made” is only confined to commissioning the advertisement or the actual making of it. In the latter case, a brand ambassador does play a part.

Sub-section (2) of the same section says “no person shall engage himself in any unfair trade practice for purpose of promoting the sale…” This clause does not specify who the “person” mentioned in it is, thus, making the ambit of the provision pliable.

Clauses (a) (b) and (c) of Sub-section (2) holds this “person” legally responsible for falsely representing the standard and quality of the food product, its need and usefulness and also for giving the public “any guarantee of the efficacy that is not based on an adequate or scientific justification.”

Maggi Noodles- Madhuri
Maggi Noodles- Madhuri
Defence

If any defence of such guarantee is raised in a court of law, the burden of proof lies on the person doing so. If the definition of the term ‘person’ used in this provision includes a brand ambassador, he has to provide the scientific justification in his defence. Besides, it is reasonably assumed that a person must have applied his mind about the quality and standard of a brand before agreeing to promote it.

Whether this means brand ambassadors will be held responsible for every single thing that goes into the making of the product they endorse is not spelt out but it is this very ambiguity that has left actors Amitabh Bachchan, Madhuri Dixit and Preity Zinta in the dock.

Consumers’ claim

“Brand ambassadors have a duty of care. They are paid in crores to use their persona or voice to make the public purchase a brand. Consumers enjoy a tortious claim against them for using their highly commercially exploitative rights to mislead the public,” Madhavi Gorakhia Divan, senior Supreme Court advocate and media law expert, said.

Vipul Mudgal, rights activist and Director of NGO Common Cause, however, said a brand ambassador cannot be culpable for promoting a brand if it is done in good faith.Hindu

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