The Noodle Testhttps://indianexpress.com/article/opinion/columns/the-noodle-test/

The Noodle Test

Celebrity-endorsers have a duty of care to consumers. But how far does it extend?

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A celebrity-endorser is entitled to indulge in a little puffery or exaggeration, so long as it is not stretched to blatant untruth.

The value of their endorsement contracts may be the best indicator of a celebrity’s popularity, better than their performance at the box office or on the playing field. So well paid are endorsements, that often, a celebrity’s earnings from professional pursuits are just a small fraction of those from endorsements. The right to advertise, also known as the right to commercial speech, is a facet of the freedom of speech protected under Article 19 of the Constitution. In the landmark Tata Press case, the Supreme Court shed its earlier reluctance to recognise speech for commercial gain as free speech protected by the Constitution. Commercial speech covers advertising, modelling and celebrity endorsements.

Celebrities also enjoy image rights or rights of publicity. These give them control over their public persona and enable the commercial exploitation of their star status. The law affords protection against unauthorised exploitation by others of the goodwill of a celebrity. If a celebrity finds their image being commercially exploited without authorisation or compensation, they have every right to sue, not only for illegal commercial use but also for damage to their reputation. Some international sports stars even have trademarks registered in their names and have sued others for infringement. Publicity rights are, therefore, valuable. But they come at a price.

When celebrities endorse a product, they do so knowing that their endorsement will persuade people to buy it. Given the power and influence they exercise over the mind of the consumer, particularly impressionable children, celebrities cannot shrug off the duty of care to their consumers. Under the law of tort, there exists a duty of care because the endorser knows that the product will be purchased on the strength of their popularity, goodwill and reputation. But modelling and endorsement are two different things. A model cannot be held liable for a product that turns out to be harmful, but a celebrity who endorses a harmful product can — because the consumer is persuaded to buy the product by an identifiable individual who enjoys a reputation and the trust of the buyer. While the endorser cannot be responsible for a one-off defect, if the product itself is harmful, the case may be different. Can celebrities be permitted to commercially exploit their status and enrich themselves at the expense of consumers without any corresponding duty? Probably not.

Once we accept that a celebrity-endorser has a duty of care to the consumer, the question is: How far does this duty extend? If they have endorsed a food product that is certified to be safe by the statutory authorities, the endorser has a perfect defence — they acted with reasonable care by ensuring that safety standards were met. Beyond that, the endorser ordinarily may not have the expertise to delve into the nitty gritty of nutrition. But, if the product is uncertified or fails safety standards, the case may be different.

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But the consumer must also act reasonably. A product may be harmless if consumed in moderation — a can of aerated cola, for example. But 10 cans a day could be toxic. The celebrity who endorsed the cola cannot be held liable for the perils of excess consumption.

A celebrity-endorser is entitled to indulge in a little puffery or exaggeration, so long as it is not stretched to blatant untruth. It is one thing to say that a product tastes fabulous. It is quite another to say that it makes the healthiest breakfast. An endorser cannot be held liable for saying the former but could be if, contrary to her claims, the product is found to be harmful.

In India, the endorsements industry has grown manifold. Individual stars sign contracts worth billions of rupees. But the extent of their liability is yet to be determined. Maggi may just be the test case.

The writer is an advocate and author of ‘Facets of Media Law’