On 21 December 2017 the Union Cabinet cleared the Consumer Protection Bill, 2017. The bill is scheduled to be tabled in Lok Sabha during the current Winter Session. One of the interesting aspects to be noted about the bill is that for misleading ads, it provides for fine and a ban on celebrities. For first instance of offence, the fine will be up to Rs 10 lakh and one-year ban on any endorsement. For the second instance, the fine will be up to Rs. 50 lakh and a ban of up to three years.

The definitions of endorsement, endorser and the punishment for endorsers for participating in misleading endorsements retain the form provided in the 2016 Bill. Since the provisions governing the issue of endorsers’ liability for misleading advertisements remain unchanged, the need for a proper understanding of this specific portion of law and the debates surrounding it remain relevant.

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However, we believe that currently this issue of endorsers’ liability as incorporated under the Bill has been substantially misunderstood. The fallacy exists at three levels.

Liability for mere appearance
In several debates, the proposed law has been interpreted to mean that any celebrity shall be held liable merely by virtue of his appearance, performance or participation in a misleading endorsement. This manner of understanding the proposed law exists because we have seen experts arguing, while opposing this amendment, that it would be unjust to hold the celebrity liable when he merely lends his face, voice or image to the advertiser or reads the script given to him; or that if the noose of law is tightened around celebrities for mere association with a misleading advertisement, then by the same logic, media, advertising agencies or other intermediaries should also be held liable; or that even the lawyer upon whose advice the celebrity gives a nod to participate in an advertisement should be held liable.

Those standing in support of the proposed amendment have also depicted a similar understanding of the provisions. This is the reason they present their arguments in favour of this amendment in the way they do. Consequently, they build their arguments upon two grounds – first, since celebrities are influential personalities, they must be careful in their choice of promotion and second, celebrities receive large payments for their promotional activities which justifies the imposition of accountability on them.

However, often these arguments miss the point that there is a distinction between an a celebrity ‘endorsing’ a product on the one hand and his participation in an advertisement showing fictional dramatisation on the other.

This kind of misunderstanding might have occurred because of the turn of events before the final draft of the Bill was chalked out. Post the introduction of the 2015 version of the Bill, it was forwarded to the Parliamentary Committee for review. When the Committee invited suggestions from stakeholders, the debate regarding celebrities’ liability became news due to the participation of celebrities in the misleading advertisement of Maggi noodles. Resultantly, the Committee received suggestions such as the inclusion of celebrities’ liability for their participation in misleading ‘advertisements’.

Hence, while giving suggestions, the terms endorsers and celebrities, and endorsement and advertisement were used interchangeably. Further, in response to these suggestions, the Committee vaguely proposed that under the Bill endorsers/celebrities’ liability should be incorporated. Therefore, in the report presented by the Parliamentary Committee, this distinction between the terms endorser and celebrity and endorsement and advertisement did not get due attention. As a result, when the report entered the public domain, its reading would have paved way for the misunderstanding that the new law proposes to hold celebrities liable even for mere participation in a misleading ‘advertisement’.

It is necessary to keep in mind that endorsement is a subset with advertisement being the superset. Endorsement is the message which makes consumers believe that it reflects the actual opinion, findings or experience of the person making such endorsement. Hence, the term ‘endorse’(ment) for such advertisements. Therefore, when one who may be a celebrity or even an ordinary individual, endorses a product he does something more than merely lend his name, face or image or merely participate by reading of script or dramatisation.

Hence, the definitions of ‘endorsement’ and ‘endorser’ under the Bill suggest that where on one hand even a non-celebrity individual can endorse a product, on the other mere participation of a celebrity in an advertisement does not always amount to endorsement. Thus, in cases where celebrities merely advertise (and not endorse) a product, the provisions of the Bill would not apply. We acknowledge that the line that exists between endorsement and advertisement may not be very clear in countries like India where hero-worship is prevalent. Nonetheless despite this lack of clarity on distinction in practical lives, the expressions endorsement and advertisement cannot be considered as synonymous in a legal sense.

Therefore, it is necessary to note that the sole rationale behind the imposition of liability upon celebrity endorsers under the proposed law is not their sheer influence, or existence of social or moral responsibility among other reasons; rather it is solely the factor of endorsement that brings any celebrity under the lens of the proposed amendment.

Liability of celebrity endorsers
It has further been overlooked that the Bill holds celebrity endorsers liable for their involvement in a misleading ‘endorsement’ and not for their association with a misleading ‘advertisement’ (wherein endorsement comprises the message of the endorser while advertisement includes several other components in addition to endorsement messages. These supplementary components can be sound effects, angel dusting of products advertised, etc). This implies that if for instance, the endorser in the advertisement of tomato flavoured chips states that the chips are crispy, then he can be held liable only if the chips are not crispy and not for instance when the chips are found to lack the redness of tomato powder on their surface as shown in the advertisement.

Endorsers’ liability for defects
In several debates, those arguing against the imposition of liability on celebrity endorsers have stated that it is unjustified to hold endorsers liable if the product endorsed turns out to be ‘defective’. They contend this is because the celebrity lacks control over the manufacturing process of the product or the management of the business enterprise.

This line of argument highlights the third possibility of misunderstanding the proposed law.This is due to the fact that the
provisions under the Bill do not aim at foisting liability upon a celebrity endorser if the product turns out to be defective; instead, it provides for imposition of obligations only if his endorsement turns out to be deceptive.

Therefore, the appropriate example of cases where the suggested law can bring the celebrity endorsers under its ambit would not be the instance of Indian cricketer Mahendra Singh Dhoni’s liability if Amrapali fails to finish the real-estate project endorsed by him on time. Instead the correct example in this context would be the advertisement of Reebok Easy Tone shoes in which the actress Bipasha Basu acted as the endorser when Reebok launched its EasyTone running shoes, claiming that the shoes could tone the calf muscles by 11 per cent and the claim was found to be false. If we clear these three misunderstandings from the debates surrounding the Bill, we would realise that the debate boils down to the question of whether the celebrity endorser should be held liable if his endorsement turns out to be misleading.