False claims by Food Supplements, Health Drinks and Baby Food etc

Author’s Note

Did drinking Complan make you taller? Are you sure? Don’t you feel like you were sold a lie?

The Section 24 of Food Safety and Standards Act, 2006 restricts misleading advertisements and false claims for food items which fool users into buying them. We are basically, speaking about supplements that promise height growth, fair skin etc.

This post is a vivid discussion of the laws that relate to misleading advertisements of food supplements, health drinks and infant food. We have also cited examples of some big brands who have been accused of misleading ads.

Table of Contents

1. Food Supplements are not medicines 
2. Laws dealing with Misleading Ads and False Claims
3. Whether sale of food supplements, health drinks and infant foods by misleading advertisement and false claims is legal?
4. List of Brands indulged in Misleading Advertisements
5. Further Action to be taken by FSSAI for Food Advertising and False Claims

Food Supplements are not medicines

They do not fall under the purview of Schedule – J of Drugs and Cosmetics Act, 1940

The Drugs and Cosmetics Act, 1940 and Schedule J lay down the laws and regulation for controlling misleading advertisements of drugs and cosmetics only. Did you know that penis/breast enlargements pills are illegal? Read here.

Many food supplements, health drinks and infant food are sold on the basis of fake claims and advertisements. And, they are not considered as medicines under the Drugs and Cosmetics Act, 1940.

Laws dealing with Misleading Ads and False Claims

Food Safety and Standards Act, 2006 (hereinafter referred to as the “FSSA”) controls the manufacturing, advertising and sale of food and other related products.

“Food” is defined under Section 3(j) of the Act and it includes all health drinks, food supplements, infant food and other processed and packaged edible products.

Section 3(zf) of the act defines what amounts to misbranding of food. According to the definition, “if a food product is represented with false claims whether on package or by advertisement, such an act would amount to misbranding of food.”

The Act forbids the manufacturer from making any claims on the package or by advertisements which are deceptive in nature and have not been proven to be true.^[1]

Whether sale of food supplements, health drinks and infant foods by misleading advertisement and false claims is legal?

Sale of food supplements, health drinks and infant food depends highly on advertisements.

People are made to believe advertisements through TV Ads, Internet Ads, Radio, Magazines, Newspapers, Billboards and Hoardings. Products are sold on the basis of claims made in the ads.

Therefore, the more attractive your advertisement is, the more dominant role you play in the market. The competitive nature of the market leads to promotion of food supplements and health drinks by making false claims and misleading advertisements.

The Section 24 of FSS Act, 2006 describes the restrictions on Unfair Trade Practices and misleading advertisements. The Act strictly prohibits the use of deceiving claims for promotion and sale of products.

The sale or promotion of any food product or supplement with false claim amounts to misleading advertisement and is a punishable offence.

The Consumer Redressal Forums has all the powers to take an action against the manufacturers who are selling food supplements, health drinks or infant food based on false claims and misleading advertisements.

Section 10 of the Consumer Protection Act, 2019, the Central Government shall form a Central Consumer Protection Authority who will have the power to deal with complaints related to misleading advertisements and false claims. Such an offence is punishable under section 89 of the Act with 2 years of imprisonment and fine upto ten lakhs.

Insofar as misleading advertisements are concerned, this is the most important provision and can really prove to be a deterrent. Any person who faces any issues due to misleading advertisements can directly file a complaint in the Consumer Forum.

List of Brands indulged in Misleading Advertisements

In a report, released by the FSSAI (Food Safety and Standards Authority of India), they have given the summary of cases that have been filed against various food supplements, food products and health drinks for making false claims in advertisements for promotion of their products.

The Following Table^[2] has the details of the cases filed for violation of Section 24 of FSS Act, 2006 & FSS (Packaging and Labelling) Regulation, 2011:

These are a few examples. The list is much longer. This gives us a clear picture about the illegality of the act of advertising food products and food supplements.

Further Action to be taken by FSSAI for Food Advertising and False Claims

In a recent press release dated 22nd November, 2019, FSSAI has cleared its position regarding food standards, security and misleading advertising in India.

According to the release, they have started working on new and more stringent measures that would be applied on all manufacturing as well as strict actions to be taken on advertising and promotion of these food supplements, health drinks and infant foods^[3].

Further, FSSAI also clears about the WHO regulations on food promotion and advertising and states that

“Aligned with the WHO advice, FSSAI has recently finalized the ‘Food Safety and Standards (Advertising and Claims) Regulations, 2018’. Under these regulations, the advertisements should not undermine the importance of healthy lifestyles, and also shall not promote or portray their food & beverages as a meal replacement unless otherwise specifically permitted by FSSAI. Further, no advertisements or claims for articles of foods shall be made by any food business operator that undermines the products of any other manufacturer for the purpose of promoting their products or influencing consumer behavior. Violation of these regulations attracts a penalty up to ten lakh rupees under Section (53) of Food Safety & Standards Act, 2006.”^[4]

FSSAI is also in the process of finalizing regulations to ensure safe and wholesome food for school children. A key proposal in the regulations is that foods that are high in fat, salt and sugar cannot be sold to school children in school canteens / mess premises / hostel kitchens or within 50 meters of the school campus^[5]. Diets that have excess of salt and sugar not only harm the body but also the cognitive capabilities of the children. Therefore, at the heart of the proposed regulations is a fundamental idea to make it clear what is healthy for children and what is not and promote healthy eating habits amongst the children. These regulations are in draft stage under consultation.^[6]

1. Nidhi Jamwal, Complan’s Tall Claim Falls Short, DowntoEarth, dt – 04/07/2015 https://www.downtoearth.org.in/news/complans-tall-claim-falls-short-1638, last accessed on 12/04/2020. ↑
2. Food Safety and Standard Authority of India, Summary Of Prosecution Initiated In the Court of Adjudicating Officers on violation of section 24 of FSS Act, 2006 & FSS (Packaging and Labelling) Regulation, 2011, Ministry of Health and Family Welfare, http://old.fssai.gov.in/Portals/0/Pdf/Summary%2830-11-2012%29.pdf, Last accessed on 12/04/2020. ↑
3. FSSAI, Irresponsible Advertising a Matter of Grave Concern, Dt – 22/11/2019, https://fssai.gov.in/upload/press_release/2019/11/5dd8883577dc9Press_Release_Advertising_22_11_2019.pdf, last accessed on 12/04/2020. ↑
4. Ibid. ↑
5. Ibid. ↑
6. Ibid. ↑