How Maggi became a bowl full of trouble for Amitabh Bachchan and other stars
If there is one thing that is common between the Kardashian sisters, Amitabh Bachchan, Madhuri Dixit and Preity Zinta, it is that all of them are under fire for promoting and endorsing food products which are allegedly found to contain harmful ingredients. While the Kardashian sisters were sued for consumer fraud for promoting QuickTrim's weight loss formula on the ground that it actually contained a large dose of caffine, which the Food and Drug Administration determined as not a safe or effective treatment for weight loss, our own Amitabh Bachchan, Madhuri Dixit and Preity Zinta have had cases filed against them for having been featured in Maggi advertisements, on the allegation that Maggi noodles contains excess of lead and Monosodium glutamate (MSG).
While the additional chief judicial magistrate, Muzaffarpur has directed the police to register an FIR against the three celebrities under IPC sections 270 (malignant act likely to spread infection of disease dangerous to life), 273 (sale of noxious food or drink), 276 (sale of drug as a different drug or preparation) and 420 (cheating and dishonesty), the Consumer Affairs official Gurucharan is reported to have stated that brand ambassadors and retailers who sold Maggi "with knowledge" about their side effects would be "liable for action" if the FSSAI identified irregularities.
This is not the first time that celebrities have faced legal trouble for endorsing products or brands which are alleged to be misleading. Actress Genelia D'Souza was recently dragged to court by a few customers who were cheated by real estate venture in Hyderabad who claimed that they had booked apartments in the project only because she was the one promoting it and alleged that they were subsequently cheated by the real estate firm.
Despite the fact that in India's burgeoning market, advertisers more often than not rely on celebrity endorsement in advertisements as a salient executional strategy, there is no law in place to regulate such endorsements and impute liability in cases of misrepresentation or for inducing customers to consume potentially harmful products.
The registration of an FIR in controversy surrounding Maggi might be one thing, but it will be exceptionally hard, if not impossible to impute a criminal intention on the three celebrities, which is a basic ingredient required to result in a criminal conviction. The Food Safety and Standards Act (FSSA), 2006, on the other hand does contain provisions relating to the regulations of advertisements, although the act nowhere mentions endorsements.
Clause 1 of Section 53 of the Act provides that any person who publishes, or is a party to the publication of an advertisement, which- (a) Falsely describes any food; or (b) Is likely to mislead as to the nature or substance or quality of any food or gives false guarantee, shall be liable to a penalty which may extend to ten lakh rupees.
Whether the celebrities can be convicted of offences under this provision will revolve around the interpretation of the phrase "is a party to the publication", a question which has not yet come up before any court in India. The controversy surrounding Maggi will hopefully result in some clarity regarding the responsibility of brand ambassadors over the nature and ingredients being used in making a product.
Hopefully, the Indian legislature and the judiciary should look at other countries, especially the United States, while developing the law relating to culpability of celebrity endorsers for false and misleading advertisements.
The past couple of decades in the United States has seen the cropping up of lawyers and law firms specialising in celebrity endorsement, and with good reason. The regulatory oversight on advertisement, including celebrity endorsement in advertisement have gotten stringent with the endorsements being subject to guidelines laid down by the Federal Trade Commission (FTC), which among other things provide that if an advertisement claims the celebrity uses the product, he or she must in fact be a bona fide user, and that the advertiser can only use the endorsement so long as it has a good faith belief that the celebrity continues to hold the views expressed in the advertisement. The FTC guidelines of 2009 further imposes an obligation on celebrity endorsers to ensure that claims made by the celebrities are independently verified and properly substantiated, thereby ensuring that celebrities educate themselves not only of the products that they endorse, but also the relevant industry and competition.
The US Court of Appeals in FTC v Garvey, 383 F.3d 891 (2004) ruled that for endorsers to be held guilty, the trade commission has to show that he or she had actual knowledge of the material representation, was recklessly indifferent to the truth or falsity of the misrepresentation, or that he/she had an awareness of a high probability of fraud along with an intentional avoidance of the truth. Asian countries on the other hand, taken an entirely different approach.
In Japan, if the celebrity is found guilty of false endorsements, he will be pressured to publicly apologise. As a result of this, celebrities are much more cautious, seldom engaging in medical advertisement, and they more often than not refrain from vouching for the product's quality or its effectiveness, medical or otherwise. In Korea, issues with false advertising involving celebrities are uncommon since the Advertising Self-Regulation Institution has stringent regulations on product categories to be advertised, ways to express, etc., and any violation is severely punished.
Thus, while the goal of every endorser might be to convince that the product will not only work for its particular purpose, but that the consumer who uses the said product will obtain the same result as the endorser, which plays a very important role in influencing the consumer's purchase decision, the endorser has a duty to ensure that he was not party to a misrepresentation, even if there was no actual intent or knowledge of falsity of the claim, as they more often than not are the guiding force behind the consumption of products that they endorse.
The Kardashians might have gotten out of the clutches of the court by virtue of an settlement with the aggrieved consumers, but only time will tell as to what happens to Amitabh Bachchan, Madhuri Dixit and Preity Zinta for their act of endorsing Maggi.