Misleading Ads: Demystifying ‘Trans Fat Free’ claims made by brands
The Indian Food regulator notified changes to the regulation on Trans Fats in the last week of 2020. What are Trans Fats? Part 21 of the series of articles on Misleading Ads by Advocate Aazmeen Kasad, serves to demystify the term, use of the ‘Trans Fat Free’ claim by certain products and provide an in-depth understanding of what the law on the same is.
Diet-related risk factors are a major driver of preventable deaths due to cardiovascular disease. Industrially produced trans-fatty acids (TFA), which are still used in some countries as an ingredient in fried food, deep-fried food, baked goods and spreads, are linked with heart disease and death. Increased intake of trans fat (>1% of total energy intake) is associated with increased risk of coronary heart disease mortality and events. Trans fat intake is responsible for approximately 500,000 premature deaths from coronary heart disease each year around the world, as per World Health Organisation (WHO). India accounts for the largest number of deaths that are caused due to trans-fatty acids in the world annually. It is estimated that between 60,000 and 75,000 people die because of trans fats each year. They can be completely eliminated and replaced with healthier oils and fats without changing the taste or cost of food. The WHO has recommended a strategic approach to eliminate industrially-produced trans fat from national food supplies, with the goal of global elimination by 2023.
What are Trans Fats or Trans Fatty Acids (TFA)? Fats or total lipids include (i) saturated fats; (ii) monounsaturated fats; (iii) polyunsaturated fat; and (iv) trans fats. Per the Food Safety and Standards (Advertising and Claims) Regulations, 2018, “trans fat” means all the geometrical isomers of monounsaturated and polyunsaturated fatty acids having non-conjugated, interrupted by at least one methylene group, carbon-carbon double bonds in the trans configuration, while “saturated fats” means fatty acids without double bonds; “monounsaturated fats” means fatty acids with one cis double bond; and “polyunsaturated fats” means fatty acids with cis-cis methylene interrupted doublebonds. Sounds complicated? Put simply, TFAs are substances that are made through the chemical process of hydrogenating oils. Hydrogenation solidifies liquid oils and increases their shelf life and the flavour stability of oils and foods that contain them. TFAs are found in baked goods such as cookies, pies, cakes, microwave popcorn, frozen pizza, refrigerated dough such as biscuits, rolls, fried food such as French fries, doughnuts, etc.
Artificial TFAs are created when hydrogen is added to unsaturated liquid vegetable oils to make them more solid. Food manufacturers use partially hydrogenated oils (PHOs) to improve the texture, shelf life, and flavour of food. Such food increase bad cholesterol and lower good cholesterol in the body, causing a high risk to the health of the consumer.
Per the WHO Report ‘Countdown to 2023: WHO report on global trans-fat elimination 2020’, in South-East Asia, India ranks second, behind Thailand, amongst the countries that is committed to restrict TFA limits.
Source: Countdown to 2023: WHO report on global trans-fat elimination 2020
India passed the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011 that set a TFA limit of 10% in oils and fats in 2011, which was further reduced to 5% (5mg/kg) in 2015.
On December 29, 2020, the Food Safety and Standards Authority of India (FSSAI) notified the Food Safety and Standards (Food Products Standards and Food Additives) Tenth Amendment Regulations, 2020 via which it has capped the amount of trans fatty acids (TFA) in oils and fats to 3% from January 1, 2021 and 2% from January 1, 2022 from the current permissible limit of 5% through an amendment. The Food Safety and Standards (Prohibition and Restriction on Sales) Regulations stand amended accordingly. The revised regulation applies to edible refined oils, vanaspati (partially hydrogenated oils), margarine, bakery shortenings, and other mediums of cooking such as vegetable fat spreads and mixed fat spreads.
The Food Safety and Standards Authority of India (FSSAI) has the mandate to regulate, manufacture, distribute, sell or import ‘Foods’ per the Food Safety Standards Act, 2006. More recently, the FSSAI has brought into force the Food Safety and Standards (Advertising and Claims) Regulations, 2018 (the ‘Regulations’) which govern advertising and claims made by Food Business Operators, to prevent consumers from being misled. Food Business Operators are mandated to comply with all the provisions of these Regulations from July 1, 2019. Advertisements and claims in respect of food products which claim to have ‘Zero Trans Fat’ should comply with the provisions of Schedule I of the Regulations, that is, it should contain less than 0.2 g trans fat per 100 g or 100 ml of food.
Section 24 of the Food Safety and Standards Act, 2006 (the ‘Act’) provides restrictions on advertisements related to food and prohibits unfair trade practices in promoting the sale, supply, use and consumption of articles of food. The Act expressly prohibits an advertisement of any food which is misleading or deceiving or contravenes the provisions of the Act, rules and regulations notified under it.
The Act bars any false or misleading representation/ claims being made with respect to the standard, quality, quantity, grade composition, need for/ usefulness or any efficacy guarantee being made to the public unless it is based on adequate or scientific justification. A ‘claim’ is any representation which is printed, oral, audio or visual and states, suggests, or implies that a specific kind of food/ food product has particular qualities relating to its origin, nutritional properties, nature, processing, composition or otherwise.
Per Section 53 of the Act, any person who publishes, or is a party to the publication of an advertisement, which (a) falsely describes any food; or (b) is likely to mislead as to the nature or substance or quality of any food or gives false guarantee, is liable to be fined up to Rs 10 lakh.
If an advertisement contravenes the provisions of the Act, but the label of the product accurately states the relevant information regarding the product, will the advertiser still be liable for the fine? The provisions of the section 53 of the Food Safety and Standards Act, 2006 states that the fact that a label or advertisement relating to any article of food in respect of which the contravention is alleged to have been committed contained an accurate statement of the composition of the food, shall not preclude the court from finding that the contravention was committed.
A number of processed food advertisers resort to Comparative Advertising. Advertisers should be cautious when resorting to comparative advertising to avoid being sued for unfair anddishonest / 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. Invariably, advertisers risk their campaign by comparing apples to oranges. Most brands which indulge in such kind of advertising believe that they are safe by writing a disclaimer in a small font at the end of the advertisement. However, the courts have held a contrary view as most consumers believe what they see and hear in the advertisements. The small type disclaimers are illegible and seldom read by the consumers. Besides, a disclaimer cannot be used to correct a misleading claim in an advertisement nor contradict the main claim in the advertisement.
Additionally, a new mechanism has been put in place by which complaints filed against a misleading advertisement shall be investigated and pecuniary penalties up to Rs 50 lakh shall be imposed on the advertiser if the advertisement is found to be false or misleading and up to Rs 10 lakh on the persons publishing the said misleading advertisements.
Per Section 2(1) of the Consumer Protection 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).
A ‘misleading advertisement’ in relation to any product or service, is 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. Thus, any advertisement which expressly or impliedly misleads consumers about the product or service will also be considered as misleading in nature.
The Central Consumer Protection Authority will regulate matters relating to violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of public and consumers to promote, protect and enforce the rights of consumers. This Authority shall be headquartered in the National Capital Region of Delhi and may have regional and other offices across India.
A complaint relating to any false or misleading advertisements may be forwarded either in writing or in electronic mode, to any one of the authorities, namely, the District Collector or the Commissioner of regional office or the Central Authority. After a preliminary enquiry is made, if the Central Authority is satisfied that a prima facie case exists, an investigation shall be conducted.
Where the Central Authority is satisfied after conducting the investigation that the advertisement for which a complaint is received is false or misleading and is prejudicial to the interest of any consumer or is in contravention of consumer rights, it may, by order, issue 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: Provided that the Central Authority may, for every subsequent contravention by a manufacturer or endorser, impose a penalty, which may extend to Rs 50 lakh. 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: For every subsequent contravention, prohibit such endorser from making endorsement in respect of any product or service for a period which may extend to three years. Where the Central Authority is satisfied after conducting an investigation, that any person is found to publish, or is a party to the publication of a misleading advertisement, except in the ordinary course of his business, it may impose on such person a penalty 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.
In light of the newly introduced provisions under the Act, which came into force from July 20, 2020, it is advisable for both the advertisers and the endorsers to exercise caution in the claims that form part of the advertisement of the goods/ services. The ensuing Parts of the series will pertain to various 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 14 years. She is a member of the Consumer Complaints Council of the Advertising Standards Council of India. She is a speaker at several forums.