Are the endorsers of Maggi culpable? Law sweeping, no legal precedent yet

Under Section 3 of the FSS Act, an “advertisement” is defined as “any audio or visual publicity, representation or pronouncement” made through “print, electronic media, Internet or website, and… any notice, circular, label, wrapper, invoice or other documents”. The definition is wide enough to cover all forms of promotion and publicity aimed at advertising a product for sale.

Provisions under the Food Safety and Standards (Packaging and Labelling), Regulation, 2011, define the health and nutritional claims, and claims for risk reduction made in these ads. These regulations are essentially in the nature of practice guidelines that work within the framework of the FSS Act.

Section 23 of the Act (“Packaging and Labelling of Foods”) says “no person shall manufacture, distribute, sell or expose for sale… any packaged food products which are not marked or labelled” as per regulations. The labels “shall not contain any statement, claim, design or device which is false or misleading in any particular”, it adds. “Every food business operator shall ensure that the labelling and presentation of food… and the information which is made available about them… does not mislead consumers.”

Which means that if tests are able to prove beyond doubt the presence of MSG and excess levels of lead in Maggi, Nestle would have indubitably breached the provisions of Section 23.

The requirement that “no person” shall “expose for sale” a product that makes a misleading claim is not confined to business entities. Whether the term “expose for sale” would include brand ambassadors remains to be judicially interpreted, though.

Section 24 prohibits the very making of an advertisement “of any food which is misleading or deceiving or contravenes the [FSS] Act” and the rules and regulations under it. The words “no advertisement shall be made” are very general — and would involve the manufacturer, ad agency, promoters and endorsers.

Section 24 (2) states “no person shall engage himself in any unfair trade practice” to promote sale and consumption of a food item. It also prohibits any unfair or deceptive practice which may falsely represent that foods are of a particular standard or quality. And — and this might affect the brand ambassadors — it is an offence to give to the public any guarantee of usefulness or efficacy of a food item that is “not based on an adequate or scientific justification”. Further, the burden of proof would lie on the person defending the claim that the guarantee was indeed based on scientific justification.

Again, according to Section 53, “any person who publishes, or is a party to the publication of an advertisement, which falsely describes any food, or is likely to mislead as to [its] nature or substance or quality… or gives false guarantee”, may be fined up to Rs 10 lakh. This provision too has the potential of taking brand ambassadors within its sweep.

Besides the Act fastening some liability on “any person” associated with advertisements, FSSAI too has issued advisories to guide the obligations of involved entities. The regulations were notified in August 2011 and, in July 2012, FSSAI elucidated what would constitute an offence over misleading claims.

It held that misleading ads related to food items are “imputed with mala fide intent” since they are normally made to mislead a consumer into purchasing a food item without disclosing complete details. It warned “any person dealing with food articles”, and said several firms had faced action already.

It has been argued that endorsers’ agreements with ad agencies and manufacturers shield them from vicarious liability regarding the quality of a product. However, no agreement or contract can be valid if it is executed to contravene legal provisions. What has been made punishable by the FSS Act can’t be obliterated by a contract that makes an ambassador immune to legal consequences.

Nothing also prevents a consumer from approaching a consumer court under the Consumer Protection Act, seeking damages from both the company and its brand ambassadors in case it is established that Nestle India resorted to unfair trade practices.

It is manifest that provisions in the FSS Act are very widely worded, but questions on their validity or interpretation have so far not been raised before a court. However, there is always a legal presumption in favour of constitutionality of a law passed by Parliament.

Brand ambassadors are paid in crores to use their persona to persuade the public to purchase a product. It may not be easy to establish that the law cannot bind them for their association with a “misleading” advertisement — or that consumers have no tortious claim or any other remedy against such advertising campaigns.

However, what should be the extent of the brand ambassadors’ culpability on the principles of duty of care, due diligence and vicarious liability, awaits a legal precedent.

utkarsh.anand@expressindia.com