Claims in advertisements concerning health benefits must be scientifically substantiated, failing which they risk being deemed misleading under advertising standards.

JUDGMENT

Manoj Kumar Ohri, J.

CM APPL. 54630/2022 (Exemption)

Allowed, subject to all just exceptions.

Application stands disposed of.

CAV 453/2022

With the appearance of Ms. Avni Singh, learned counsel for the caveator/respondent, caveat stands discharged.

FAO 323/2022

1. By way of present appeal filed under Order XLIII Rule 1(r) read with Section 104 CPC, the appellant (plaintiff therein) has assailed the order dated 22.09.2022 passed by the Trial Court in CS DJ 102/2022, whereby its application under Order XXXIX Rules 1 and 2 CPC was dismissed.

2. The appellant filed the underline suit for declaration, permanent and mandatory injunction wherein it was claimed that it is a company having amongst other business of mass production of Ayurvedic Medicines. It was also claimed that it is the first legal entity in India to provide healthcare through scientifically tested and automated production of formulations based on traditional ayurvedic science. Besides ayurvedic medicines, it also manufactures and markets wellness/healthcare products including the product in question `Dabur Vita' - a health food drink. The product was statedly launched in September, 2021 and claimed to be an `Ayurvedic Medicine (Balya Poshak)' i.e., an `Ayurvedic Proprietary Medicine' under the Drugs and Cosmetics Act, 1940. It was claimed that the ingredients of the product promote immunity and the product itself offers double superior benefits of growth and immunity with superiority on taste compared to others in Milk Food Drinks Category. It was further claimed that on the basis of studies conducted through independent and accredited research organizations who carried out evaluation of immunomodulatory and antioxidant effect of the product, the appellant issued an advertisement of the product on its website www.daburvita.com as well as its social medial handles i.e., on Facebook and Instagram.

3. The respondent is stated to be a voluntary self-regulatory council governed by its own self-regulation code called ASCI Code under which mechanism is available to deal with complaints against advertisements.

4. The respondent received a complaint from third party against use of following claims by the appellant in the above advertisement:

Claim 1: `India's Best Immunity Expert'.

Claim 2: `No Other Health Drink Gives Your Child Better Immunity'.

5. In the complaint, it was alleged that the claim `India's Best Immunity Expert' is a superlative claim that seeks to undermine the benefits consumers may get from any/all other products available in the market. It was further alleged that the claim is superlative and comparative in nature and does not have adequate scientifically verifiable comparative studies. Therefore, the same is violative of Guideline 1.4, Chapter-I of the ASCI Guidelines - Truthful and Honest Representation, which states `Advertisements shall not be so framed as to abuse the trust of consumers or exploit their lack of experience or knowledge. No advertisement shall be permitted to contain any claim so exaggerated as to lead to grave or widespread disappointment in the minds of consumers.' Similar objections were raised with respect to the other claim i.e., `better immunity'. It was alleged that by claiming thus, the appellant has deliberately disparaged other health drinks available in the market without any factual substantiation.

6. Based on the observations of the Fast Track Complaints Panel (FTCP), ASCI, the impugned communication dated 04.02.2022 was issued by the respondent. The payer for inj