Yoga guru Ramdev (centre) arrives at the Supreme Court for hearing on the Patanjali misleading advertisements case, in New Delhi, on April 10, 2024
| Photo Credit: PTI

The Supreme Court on Wednesday refused to accept a second round of apologies from self-styled yoga guru Baba Ramdev, Patanjali Ayurved Limited, and its managing director Acharya Balkrishna in a contempt case, flagging concern about Fast Moving Consumer Goods (FMCG) companies playing with the health of the gullible public while government fails to crack the whip.

“The victim is always the public. We are concerned with all those FMCG companies who are taking their consumers and clients up and down the garden path, showing them very rosy pictures about what their products can do for them. People who pay good money for these products finally end up suffering at the cost of their health… That is absolutely unacceptable,” Justice Hima Kohli observed.

Editorial | Dangerous game: On Patanjali Ayurved’s claims

The Bench, also comprising Justice Ahsanuddin Amanullah, said the objectionable and misleading advertisements by Patanjali Ayurved to cure everything from diabetes and obesity to liver dysfunction, and even COVID-19 during the months of the pandemic, were “deliberate and wilful violations” of the Drugs and Magic Remedies (Objectionable Advertisements) Act of 1954 and its Rules.

The apex court had initiated contempt proceedings against Patanjali Ayurved and Mr. Balkrishna on February 27 for violating an undertaking given to it in November 2023 that they would refrain from advertising “cures” in violation of the 1954 Act. On November 21, the apex court had directed the company to not make any “casual statements” to the print or electronic media about the efficacy of their medicinal products or indulge in any disparaging statements about other disciplines of medicine, including allopathy. However, the very next day, Mr. Ramdev had held a press conference.

“We are thinking, why we should not treat your apology with the same disdain in which you treated the undertaking given to this court?” Justice Kohli addressed senior advocate Mukul Rohatgi, appearing for the proposed contemnors.

Justice Amanullah remarked the apology came from the trio only after “the writing was plain on the wall”.

Justice Kohli said their conduct, when faced with contempt action, changed from hubris to abject surrender when they found themselves cornered.

In its order, the court recorded that the contemnors, Mr. Ramdev and Mr. Balkrishna, had tried to “wriggle out” of personally appearing in the apex court.

Justice Amanullah said it was conduct like this that made a mockery of the Supreme Court, with the public claiming that judges were sitting in an ivory tower.

The court made it clear that it would direct action against every person or authority who had broken the law, without mercy.

“Why should we show mercy when the public is cheated by medicines touted as a cure?” Justice Kohli asked. The court listed the contempt case for April 16.

The hearing saw the court turn its ire on the Uttarakhand State Licensing Authority for choosing to turn a blind eye to the misleading advertisments.

“You twiddled your thumbs… Why should we not come down like a ton of bricks on your officers? They have been filibustering… You were in deep slumber from 2018, when the first complaint came about their products, to 2024,” Justice Kohli told a senior official from the Uttarakhand State Licensing Authority who was present in the courtroom.

The official said he would file an First Information Report (FIR) now. Justice Amanullah, in a sarcastic tone, said he need not bother after so many years.

“Now you have woken up to a statute which is the law of the land?” Justice Kohli asked the State government.

The court said the assurances of the State government to move against Patanjali under the 1954 Act, and the apology of the three proposed contemnors were “not worth the paper they were written on”.

The court directed the State Licensing Authority officers-in-charge, the present one and his predecessor, to file detailed affidavits on why action had not been taken against Patanjali Ayurved under the Drugs and Magic Remedies (Objectionable Advertisements) Act.

It further directed all the officers who had served as District Ayurvedic and Unani Officers, Haridwar, from the period between 2018 to 2024, to file affidavits explaining their inaction against Patanjali Ayurved under the law. The court has listed this part of the case on April 23.

In the previous hearing on April 2, the court had questioned the government for “shutting its eyes” while Patanjali Ayurved “tom-tommed” its wares as panacea during the COVID-19 pandemic.

In its affidavit, the Centre responded that the Interdisciplinary Technical Review Committee for COVID-19 had raised “ethical concerns”, and recommended in its report in December 2020 that Patanjali Ayurved’s ‘Coronil’ “may be used as a supporting measure for COVID-19 without claiming cure”.

The story so far: On April 29, the Advertisement Monitoring Committee at the Food Safety and Standards Authority of India (FSSAI) flagged 32 fresh cases of food business operators (FBOs) making misleading claims and advertisements. They were found to be in contravention of the Food Safety and Standards (Advertisements & Claims) Regulations, 2018. As per the regulator, the cumulative count of such offences has shot up to 170 in the last six months. It urged FBOs to “desist from making any unscientific and/or exaggerated claims and advertisements to promote their product sales to avoid enforcement actions and in larger consumer interest.” 

What has been FSSAI’s initial response?  

While the food regulator did not name the violators, it confirmed that they scrutinised products in varied categories such as health supplements, organic products, fast-moving consumer goods (FMCG) products and staples, each endorsing certain health and product claims. The alleged violators include manufacturers and/or marketers of nutraceutical products, refined oils, pulses, flours, millet products, and ghee.

The cases have now been referred to the concerned licensing authorities to issue notices and subsequently, withdraw the misleading claims or scientifically substantiate them. In the event of an unsatisfactory response, the claims/advertisement would either have to be withdrawn or modified. Failure to comply with the provisions thereafter would invite penalties of up to Rs 10 lakh apart from stringent punishments including the suspension or cancellation of licenses for repeated offences.  

Making deceptive claims or advertisements are punishable offences under Section-53 of the Food Safety and Standards Act, 2006. 

Last month, an uproar ensued after allegations were made against health drink Bournvita. The FSSAI in a statement, without naming any entity, said the health benefits attributed to a product must be based on “statistically significant results from well-designated human intervention studies, conducted by or under the guidance of established research institutions”. They must be in consonance with principles of Good Clinical Practices (GCP) and peer-reviewed or published in a peer-reviewed scientific journal. 

The allegations, made by an influencer, were later withdrawn, with the company stating that the product adheres to a “scientifically designed formula made with ingredients that are approved for use and all ingredients are declared on the pack”. 

What have we recently observed in the food advertising ecosystem?  

Manisha Kapoor, Chief Executive Officer and Secretary General at the self-regulatory organisation Advertising Standards Council of India (ASCI) told The Hindu that food advertising has been a “fairly violative sector”.  

“Close to 788 ads that we processed against food advertising, about 299 are related to (non-disclosure by) food influencers. So, we still have about 490-odd ads where the content of what was being said in the ad was found to be misleading,” Ms Kapoor said.  

On which product category has the most number of violators, Ms Kapoor stated, “It is pretty much across all categories, I would not say that one subcategory is a dominant violator, it is pretty much spread across a bunch of different food categories and food.” 

What are the regulations for tackling misleading ads and claims?  

There are varied regulations to combat misleading advertisements and claims, some are broad, while others are product specific. For example, FSSAI uses the Food Safety and Standards (Advertisements & Claims) Regulations, 2018 which specifically deal with food (and related products) while Central Consumer Protection Authority (CCPA)’s regulations cover goods, products and services.  

Further, the Programme and Advertising Codes prescribed under the Cable Television Network Rules, 1994 stipulate that advertisements must not draw inferences that it has “some special or miraculous or supernatural property or quality, which is difficult of being proved.” 

FSSAI seeks that the advertisements and claims be “truthful, unambiguous, meaningful, not misleading and help consumers to comprehend the information provided”. Claims must be scientifically substantiated by validated methods of characterising or quantifying the ingredient or substance that is the basis for the claim.  

Product claims suggesting suitability for prevention, alleviation, treatment or cure of a disease, disorder or particular psychological condition is prohibited unless specifically permitted under the regulations of the FSS Act, 2006.  

When can a product be referred to as ‘natural’? 

A food product can be referred to as ‘natural’ if it is a single food derived from a recognised natural source and has nothing added to it. It should only have been processed to render it suitable for human consumption. The packaging too must be done sans chemicals and preservatives.  

Composite foods, a mixture of plant and processed constituents, cannot be called ‘natural’, instead, they can say ‘made from natural ingredients’.

What about ‘fresh’? 

‘Fresh’ can be used for products which are not processed in any manner other than washing, peeling, chilling, trimming, cutting or irradiation by ionizing radiation not exceeding 1 kGy or any other processing such that it remains safe for consumption with the basic characteristics unaltered. Food irradiation is a physical process that utilises a controlled amount of radiant energy to achieve effects like sprouting, delay in ripening, and killing of insects/pests, parasites and spoilage microorganisms.  

The regulations forbid the ‘fresh’ reference if the processing endeavours to achieve an extension in the shelf-life of the product (usually achieved through medium-dose applications for meat). Those withadditives (or subject to any other supply chain process) may instead use ‘freshly frozen’, ‘fresh frozen’, or ‘frozen from fresh’ to contextualise that it was quickly frozen while fresh. 

What about ‘pure’ and ‘original’? 

‘Pure’ is to be used for single-ingredient foods to which nothing has been added and which are devoid of all avoidable contamination, while unavoidable contaminations are within prescribed controls. Compound foods cannot be described as ‘pure’ but can be referred to as ‘made with pure ingredients’ if they meet the mentioned criteria.  

‘Original’ is used to describe food products made to a formulation, with a traceable origin that has remained unchanged over time. They do not contain replacements for any major ingredients. It may similarly be used to describe a unique process which has remained essentially unchanged over time, although the product may be mass-produced. 

What about ‘nutritional claims’? 

Nutritional claims may either be about the specific contents of a product or comparisons with some other foodstuff.  

Claims of equivalence such as “contains the same of (nutrient) as a (food)” or “as much (nutrient) as a (food)” may be used in the labelling provided that the amount of nutrient in the foodstuff is enough for it be claimed as a similar ‘source’ of the nutrient as the reference food; in other words, it provides equivalent nutritional value as the reference food.  

According to Ms Kapoor, most complaints of misleadingwere related to the nutrition of a product, its benefits and the ingredient mix not being based on adequate evidence.  

“A lot of claim data is to be based on technical data. For example, if you say, that there is Vitamin D in my product, we need evidence to substantiate that there indeed is Vitamin D in your product,” she says, adding, “then if you claim that Vitamin D in your product can also help reduce fatigue, improve stamina or another claim like that – then there needs to be enough literature to substantiate that the ingredient does what is being stated”.  

However, the Secretary-General elaborates, if the claim revolves around the composition of the product, saying that a product with all its elements achieves a certain outcome, companies needto provide clinical data about the outcomes pertaining to the control group, the administered group and the observed period of the claimed outcomes. 

Lastly, another important aspect of scrutiny entails the expectation from a consumer’s point of view. For example, a product may claim that it offers the same energy as a glass of milk. From a kilocalorie point of view, the product indeed offers the energy equal to the glass of milk – thus making the claim technically correct. However, Ms Kapoor states, from a customer’s perspective, ‘energy’ may imply the body’s ability to carry out certain tasks or be energetic and not necessarily the kilocalorie input.  

In such situations, the advertisement needs to be modified in a “way (that) a consumer would be able to interpret”.