Explained | Misleading food ads and regulations to curtail them

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 In the event of an unsatisfactory response, the claims/advertisement would either have to be withdrawn or modified.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The allegations, made by an influencer, were later withdrawn, with the company stating that the product adheres to a “scientifically designed formula made with ingredients that are approved for use and all ingredients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”.