Will a proactive SC force FMCG brands to review their claims in ads?

Amidst the Patanjali controversy, experts assess the impact on the industry by the apex court’s intervention.

The ongoing misleading ads case against Patanjali in the Supreme Court has acted as a catalyst for Union Ministries and authorities to take action against fast-moving consumer goods (FMCG) companies that indiscriminately publish misleading ads. 

Baba Ramdev and Acharya Balkrishna-led company has fallen time and again in troubled waters owing to its series of questionable campaigns over the course of the last few years, most notoriously for its anti-allopathy campaign promoting the brand’s self-acclaimed COVID-19 cure, ‘Coronil’.

For the unacquainted, the infographic below gives a brief chronology of Patanjali’s controversial claims.

Now, when the brand is under the direct inspection of the Supreme Court, other FMCG brands may bear the brunt of this intervention as well. 

In fact, Justices Hima Kohli and Ahsanuddin Amanullah, who are currently overseeing the Patanjali case, have decided to broaden the scope of their examination to other FMCG and healthcare companies. 

In a parallel but separate timeline, Hindustan Unilever (HUL) recently renamed its ‘health food drinks’ to ‘functional nutritional Drinks drinks’ (FND), after government regulations clamped down on misleading labelling practices. 

The Ministry of Commerce and Industry had directed e-commerce platforms to stop classifying drinks like Horlicks and Boost as “health drinks”. 

In the past campaigns of Horlicks, the essence was around the assurance of clinically proven benefits that foster a child’s growth in health, strength, and mental acuity. In the past, Boost’s ad featuring Sachin Tendulkar claims that his secret of energy is Boost. 

Last year in December 2023, Bournvita reduced its sugar content to 32.2 grams per 100 grams. This happened after eight months when an influencer pointed out the high sugar content in Cadbury’s Bournvita ‘health drink’.

In January 2023, ASCI asked Britannia Industries to withdraw its Milk Bikis campaign, as the campaign claimed that biscuits contain the power of milk and wheat flour. 

The ads and claims by these brands are operating in a grey area of showcasing health benefits and adjusting their branding and communication strategies accordingly.

Prabhakar Mundkur, who has spent 17 years in an advertising agency formerly known as J Walter Thompson and is now working as a consultant stated,  “These brands are not operating in any grey area, they are just overclaiming which has now become an industry practice.”

He also stated that these players are largely selling undifferentiated products, therefore clinging to unrealistic claims to make a difference with their competitors.

Gauri Chaudhari, founder, of Brand Innerworld, a healthcare brand consultancy specialising in end-to-end healthcare brand consultancy stated, “Within the FMCG category, the concept of health lacks a definitive definition, posing challenges for brands navigating this terrain. While some claims are blatantly false and easily addressed, others are nuanced and comparative, making them less straightforward to adjudicate.”

Additionally, she also adds that contextual factors such as time and environment further complicate matters, as products once considered healthy may now be deemed otherwise due to evolving nutritional standards. 

She highlighted an example of Glucose biscuit which was healthy for the malnourished Indian populace earlier but now is referred to as unhealthy due to ingredients such as sugar and maida.

According to the Advertising Standards Council of India (ASCI) half-yearly complaints report 2023, healthcare emerges as the most violative sector, constituting 21% of all processed ads. The surge is attributed to a high volume of drug and medicine advertisements on digital platforms.

While ASCI has been consistently flagging problematic ads and advising brands to abide by guidelines, there still remains scope for authorities to step in and enforce rules, as per Manisha Kapoor, who is the CEO and secretary general at ASCI.

She says, "Healthcare is a very important segment where consumers are especially vulnerable. It is important that honesty in communication remains a priority for advertisers. While self-regulation works well in over 90% of the cases, the government and courts are required to step in for repeat violators. Regulation and self-regulation therefore can work in complimentary ways to address some of these challenges."

Talking about amendments in big brands, Atin Roy, senior vice president, Ogilvy who has worked with P&G Health Asia, Nestle believes that big brands just can’t make superficial title changes, but there is a need for them to back them up with tangible shifts in their products. 

“There’s an urgency on brands to sound healthy, just by simply adding a dash or fortifying a product. However, the gravity of health and well-being can’t be overstated, it directly influences human life," he highlights. 

The recourse

These new developments warrant a new communication strategy with more transparency between consumers and the brands. 

Roy states that it’s not possible to review every ad by a regulatory authority. “I believe that empowerment should be provided to publishers, giving them industry-crafted guidelines, adhering to health and wellness ads guidelines. This approach has the potential to sift through noise and safeguard the health and well-being.”

Mundkur believes that all the guidelines are in place, the brand just needs to follow what is already prescribed.