Delhi HC nixes Dabur’s plea against order on withdrawal of health drink ad

The court held prayers sought by Dabur were “inchoate”, and the trial court had rightly refused to restrain ASCI, on the ground that Dabur could not show that the body tried to interfere with the broadcast of the advertisement in question.

“In the considered opinion of this Court, no ground for interference is made out with the impugned order passed by the Trial Court. Pertinently, it is the appellant’s (Dabur India) own case that the respondent (ASCI) does not have the authority to block the broadcast of the advertisements and that it could only send its recommendations to the Government of India to issue necessary directions,” it said.

“The decision to block the broadcast rests with the Government and not the respondent. No evidence was produced before the Trial Court to show that the respondent tried to exceed its remit by sending communications to broadcasters directly requesting them to stop the broadcast of the advertisement in question,” it added.

The observations were made in Dabur India’s lawsuit against the trial court’s order which upheld the decision of ASCI who on February 4, 2022, had said the company’s claims that ‘Dabur Vita’ is “India’s Best Immunity Expert” and “no other health drink gives your child better immunity” were “inadequately substantiated” and not backed by science.

The body had further observed the claims were “misleading by exaggeration and are likely to cause widespread disappointment in the minds of consumers”. The body asked the company to withdraw the claims across all media, including YouTube, Print, TVC, digital media etc and had asked them to inform all media to stop the release of the ads and ensure the implementation of the decision by February 15, 2022.

Dabur had sought an interim direction to “declare that the advertisement in question is truthful and does not violate any advertisement code” and had further asked the HC to restrain the operation of ASCI’s order. Dabur India said that if ASCI’s order is not stayed, there is a likelihood that the Ministry of Information & Broadcasting may initiate some action.

The high court after going through ASCI’s order/communication said their findings are “quite damning of the claims” made by Dabur India about its product. The body observed that the claims are not backed by science and that the product should go through a process of clinical trials to empirically prove the claims made by it.

The high court said Dabur India has “made light” of the findings given by the body, “being a voluntary society of its members of which, admittedly, appellant itself is a member”. The court found it noteworthy that the norms laid down by the body have been recognised as an ‘advertising code’ and accorded legal sanctity in the Cable Television Networks Rules, 1994. The HC said that although the rules were not applicable to the advertisement in question as it was not telecasted on Cable TV and was restricted to Dabur’s own website and social media, “however the sanctity accorded to the respondent’s code is clearly established, only to answer the appellant’s contention apropos the respondent’s authority to enforce its code”.

The HC noted that the Ad made a “very emphatic and confident claim” that ‘No other health drink gives your child better impunity’. “This catchphrase is the centrepiece of the advertisement by which the customers are told that all other products in the market are inferior to the appellant’s product. Even if the competitors have not been named, but clearly the intent is to run down the competition, that too, with a claim whose scientific basis has been doubted,” the court said.

It further observed that at this stage when the efficacy of the product is “yet to be established as per the established norms, the claims made in the advertisement may well be misleading”. It opined the truthfulness of Dabur’s claims will be established after trial and, therefore, at the interim stage there was “no prima facie case that the appellant could claim to be in its favour”.

“Balance of convenience too is against the appellant since it is always safe to err on the side of caution and not permit a claim to be made about a product that concerns human health. No irreparable harm can possibly be suffered by the appellant since there is no embargo on the sale of the product in question and it is only the way the product is sought to promote by way of the advertisement in question has been found to be misleading,” the high court held.

While dismissing the appeal, the high court also noted Dabur had not sought a prayer seeking setting aside of the body’s February 2022 order holding that in the absence of a “final relief being sought, interim relief to stay the operation of the order could not have been granted”.