The Supreme Court of India has set aside a National Consumer Disputes Redressal Commission order that an advertisement showing the smiling face of Actor Akshay kumar on cigarette sold under the brand name ‘Red and White’ amounted to an unfair trade practice.
The case was this:Godfrey Phillips India, in an advertisement issued by him in the newspapers and magazines in the year 1999, apart from showing the pack of cigarettes with the brand name, said, ’Red and White smokers are one of a kind.’It showed Akshaykumar holding a cigarette and the pack also carried the statutory warning ‘Cigarette smoking is injurious to health’
Both the District Forum and the State Consumer Disputes Redressal Commission dismissed the complaint from Akshaykumar.
However, the National Consumer Disputes Redressal Commission held that the slogan, ‘Red and white smokers are one of a kind’ showing the image of Akshaykumar indicated that smokers of ‘Red and White cigarettes could be super actors performing all film stunts on their own.
The National Commission further held that the advertisement amounted to an ‘unfair trade practice’ and directed the company to discontinue it and to issue corrective advertisements to neutralize the effect of the impugned, misleading one.
Allowing the appeal by quashing the order passed by the National Consumer Disputes Redressal Commission, the Supreme Court of India, a Bench consisting of Justices Arijit Pasayat and P.Sathasivam said, ‘As rightly held by the appellant, the direction (to discontinue the advertisement) was given without any material or evidence whatsoever and there was not even a suggestion/pleading that the advertisement of Akshaykumar or that he could perform certain stunts without duplicates” There was not even an allegation that it detracted from the statutory warning.
‘When such a serious allegation, which was required to be established, was not even specifically pleaded and when nothing specific was indicated in the complaint, the commission should not have given the direction on surmises.’
As far the direction to issue corrective advertisements, the Bench said Sections 5(1) and 5(2) of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, clearly prohibited issuance of any advertisement in relation to cigarettes. Therefore, corrective advertisement as directed could not have been given.
The above Judgment of the Supreme Court is significant from the point of view that it clearly restricts the lower Fora and Courts from passing an order based on surmises and when there is no specific pleading to that effect.