Advertising with Medical Practitioners? Dr. NO!

Several advertisements depict an individual wearing a white coat giving advice to parents/ lay consumers on the efficacy of a product. Some even go as far as showing a stethoscope around the person endorsing a product, leading the consumer to believe that such endorsements are made by a doctor. This article by Advocate Aazmeen Kasad is part of a series of articles on Misleading Advertising. Part 10 covers the aspect of portraying doctors through artists in white coats in advertisements and whether this falls foul of the law.

From time immemorial, it is known that a doctor or a person from the medical profession garners more trust than any other professional. To many, a doctor is perceived to be next only to God and is looked at with utmost faith to cure issues related to the health of individuals.

In the past century, never would this be more true than during the COVID-19 pandemic which has spread across the world, resulting in the creation of a widespread fear and anxiety amongst people of their contracting it. The advisory by the World Health Organisation and several notable health organisations and Ministries globally have recommended taking preventive health measures. This has manifested in a consequent need amongst the public at large to use products which can be trusted, especially if a doctor endorses it.

We are witnessing a spate of advertisers using either medical practitioners who are registered outside India or individuals wearing white coats/ with or without a stethoscope endorsing a certain brand and exhorting its efficacy in advertisements, leading consumers to believe that such endorsements are made by Doctors.

The Lifebuoy TVC portrays a doctor advising the mothers of two children to use Lifebuoy soap to ensure protection from 10 external skin ailments or internal bodily infections.

Historically, Colgate’s advertisements have always shown a dentist recommending the toothpaste and also carry the endorsement by the Indian Dentists Association (‘IDA’) of being the No.1 toothpaste recommended by the IDA.

This led to Pepsodent resorting to a comparative advertising campaign against Colgate’s claim, with their advertisement making a claim that using Pepsodent toothpaste assures 130% more germ attack power over those who use Colgate Strong Teeth Toothpaste.

This brings up the element of Comparative Advertising. Marketing one’s brand by comparing it with another’s brand is referred to as ‘Comparative Advertising’. The objectives are to demonstrate superiority to your rivals’ product/ service, inform consumers, promote market transparency, ensure price competitiveness and create product improvisation. Is comparative advertising legally permissible? There is no law which bars it, simply because, if done honestly, it actually aids consumers. ‘Consumer Rights’ per the Consumer Protection Act, 2019 (the ‘Act’) includes the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices. It also includes the right to be assured an access to a variety of goods, products or services at competitive prices, wherever possible. Comparative advertising does just that.

Having said that, advertisers should be cautious when resorting to comparative advertising to avoid being sued for unfair and dishonest/ misleading advertising. How does one ensure honest comparisons? There are several checks and measures that advertisers should ensure adherence to. The foremost is by comparing apples to apples. Advertisers should ensure that while comparing its product with that of its competition, all significant attributes of comparison are provided. Selective attributes’ comparison is held to be unfair, even if it is of the same product category. Similarly, not disclosing important information is also misleading a consumer’s trust. Another important way of ensuring that an advertiser does not run into a legal issue while promoting its brand through comparative advertising is by having substantiation in the form of research reports or laboratory studies, etc., backing up its claims of superiority.

The trend continued with Pepsodent, too, using a character portraying a dentist, who advises patients to switch to Pepsodent to control gum bleeding.

The Medical Council of India bars advertising by Doctors. Regulation 6.1.1 of Chapter 6 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 provides that soliciting of patients directly or indirectly, by a physician, by a group of physicians or by institutions or organisations is unethical. A physician must not make use of him/ her (or his/ her name) as subject of any form or manner of advertising or publicity through any mode either alone or in conjunction with others, which is of such a character as to invite attention to him or to his professional position, skill, qualification, achievements, attainments, specialities, appointments, associations, affiliations or honours and/or of such character as would ordinarily result in his self-aggrandizement. A physician is barred from giving to any person, whether for compensation or otherwise, any approval, recommendation, endorsement, certificate, report or statement with respect of any drug, medicine, nostrum remedy, surgical, or therapeutic article, apparatus or appliance or any commercial product or article with respect of any property, quality or use thereof or any test, demonstration or trial thereof, for use in connection with his name, signature, or photograph in any form or manner of advertising through any mode nor shall he boast of cases, operations, cures or remedies or permit the publication of report thereof through any mode.

Despite the law by which doctors registered with the Medical Council of India (‘MCI’) are bound, select doctors have been advertising and endorsing products. Such violations have been dealt with strictly by the MCI. Where a hospital in Kerala published advertisements in newspapers featuring doctors who are practicing in the hospital along with their photographs and qualifications among others, the said doctors were issued a warning in the first instance. Complaints on advertisements by the Nova Orthopaedics & Spine Hospital, Nehru Enclave, New Delhi and the Saket City Hospital, New Delhi having advertising by doctors were strictly dealt with and the advertisements were withdrawn with an apology being tendered by the hospitals.

The Madhya Pradesh Medical Council (MPMC) has issued warning notices to the state’s nearly 50 prominent doctors for advertising and promoting their skills. The action was taken on the complaints lodged with the Council against the doctors. (Source: https://brandequity.economictimes.indiatimes.com/news/advertising/medical-council-warns-top-docs-to-stay-away-from-advertisement-blitz/52450490)

Any subsequent violation would lead to strict disciplinary action, including their licences being suspended and their names being struck off from the register of the MCI.

The Travancore Cochin Medical Council (TCMC) has suspended the registration of an Ayurveda practitioner, who was under the scanner for publishing advertisements which claimed miracle and unscientific cures for various illnesses.This suspension was done on orders of the State Human Rights Commission (SHRC), which had directed the TCMC and state drugs controller to take strict action against the practitioner. (Source: https://medicaldialogues.in/medical-council-suspends-registration-of-ayurveda-practitioner-for-publishing-miracle-cure-advertisements?infinitescroll=1 )

Six doctors were suspended and 10 penalised after the Tamil Nadu Medical Council registered at least 50 cases in 2019 against doctors for advertising on online platforms, said officials. (Source: https://www.dtnext.in/News/TamilNadu/2019/11/16025844/1197941/Online-advertisements-Medical-Council-suspends-six-.vpf )

The Ministry of Health and Family Welfare have stated that the MCI receives complaints with regard to advertisement of medical professionals, which are considered by the Ethics Committee of the MCI and are followed with strict action. This has led to doctors now exercising caution against violation of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

Given that doctors are now declining to endorse products in advertisements, more recently, the trend has emerged of using celebrities to portray the role of a doctor in advertisements by advertisers.

The recent advertisement of Policy Bazaar.com, features celebrity actor Akshay Kumar endorsing the insurance aggregator.

In another recent case, celebrity actor Neena Gupta is seen donning a white coat and endorsing GSK’s 3-in-1 vaccine, explaining to expectant mothers how the vaccine will protect the child from Tetanus, Diphtheria and Pertussis all at once.

https://www.facebook.com/GSKPharmaceuticalsIndia/videos/818163872017650/

While the Consumer Protection Act, 2019 (the ‘Act’) is silent on the use of the term ‘Celebrity’; it has defined the term "endorsement" in relation to an advertisement to mean (i) any message, verbal statement, demonstration; or (ii) depiction of the name, signature, likeness or other identifiable personal characteristics of an individual; or (iii) depiction of the name or seal of any institution or organisation, which makes the consumer believe that it reflects the opinion, finding or experience of the person making such endorsement. Thus, the Act includes endorsements by (i) individuals; and (ii) institutions/ organisations. The critical element of an endorsement is the fact that it leads the consumer to believe that it is the opinion or the finding or the experience of the person/ institution/ organisation making the endorsement. However, today, there are no rules, regulations or guidelines laid down with regard to the basis on which endorsements are made by institutions/ organisations, be it noted medical associations of the country or doctors or otherwise.

Per Section 2(1) of the Act, an ‘advertisement’ means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents. Therefore, this includes advertisements not only on the traditional media such as print, radio or television advertisements but also includes packaging, point of sale material, etc. Advertisements on the Internet, including social media such as ads posted on Facebook, Instagram, Twitter, LinkedIn, etc. also fall within the purview of the Act, as do advertisements on websites, which includes the advertiser’s own website(s).

As per the Act, a ‘misleading advertisement’ in relation to any product or service, means an advertisement, which (i) falsely describes such product or service; or (ii) gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or (iii) conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or (iv) deliberately conceals important information.

Per section 2(47) of the Act, an ‘unfair trade practice’ means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely (i) making any statement, whether orally or in writing or by visible representation including by means of electronic record, which (a) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model; (d) represents that the goods have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods do not have; (f) makes a false or misleading representation concerning the need for, or the usefulness of, any goods.

As Doctors themselves are barred from advertising, resorting to usage of characters portraying the role of doctors, misleads the unsuspecting consumer by implication. Such advertisements, especially in the absence of genuine endorsements by any reputed Doctor or registered Medical Council of India, misleads consumers to believe that the products are genuinely endorsed by the medical fraternity. The very fact that advertisers are portraying celebrities in white coats with/ without stethoscopes knowing that it would lead the common man to believe that the character is one of a doctor and therefore trust the endorsement by the actor portraying the role, smacks of mischief and may be construed as an ‘Unfair Trade Practice’.

In light of the newly introduced provisions under the Act, which came into force from July 20, 2020, it is advisable for not only the advertisers and the endorsers, but also the publishers of the advertisements to exercise caution on the claims that form part of the advertisement of the goods/ services. Under the Act, any advertiser, trader, publisher and endorser found to be guilty of a false or misleading advertisement, may receive an order from the Central Consumer Protection Authority, with directions to the concerned trader or manufacturer or endorser or advertiser or publisher, as the case may be, to discontinue such advertisement or to modify the same in such manner and within such time as may be specified in that order. If the Central Authority is of the opinion that it is necessary to impose a penalty in respect of such false or misleading advertisement, by a manufacturer or an endorser, it may, by order, impose on manufacturer or celebrity endorser a penalty which may extend to Rs 10 lakh in the first instance and for every subsequent contravention by a manufacturer or endorser, a penalty, which may extend to Rs 50 lakh may be imposed.

Additionally, where the Central Authority deems it necessary, it may, by order, prohibit the celebrity endorser of a false or misleading advertisement from making endorsement of any product or service for a period which may extend to one year in the first instance which may extend to three years for every subsequent contravention. Any person found to publish, or is a party to the publication of a misleading advertisement, except in the ordinary course of his business, may be penalisedwith a fine which may extend to Rs 10 lakh. The defence that the false or misleading advertisement was published in the ordinary course of business shall not be available to such person if he had previous knowledge of the order passed by the Central Authority for withdrawal or modification of such advertisement.

Honest advertising can empower consumers into making better buying decisions; while for advertisers, it can garner goodwill, trust, brand loyalty, higher sales which translates intohigher revenues and profits. On the other hand, deceptive or misleading advertising can hurt the brand, expose the advertiser to legal risks and fines and also loss of consumer trust and in the long run, consumers.The ensuing Parts of the series will pertain to various other aspects of what constitutes Misleading Advertising and key judicial precedents on the same.

Advocate Aazmeen Kasad is a practicing corporate advocate with over 20 years of experience, with a focus on the Media, Technology and Telecom industries. She is also a professor of law since 13 years. She is a member of the Consumer Complaints Council of the Advertising Standards Council of India. She is a speaker at several forums.

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