Misleading Advertisement under Section 2(28) of the Consumer Protection Act, 2019

Advertising is where the consumer's decision is made, and the 2019 Act is the first Indian consumer statute to treat the misleading advertisement as a defined wrong with its own enforcement machinery: a definition in Section 2(28), the CCPA's power to order discontinuance, correction and penalties, liability reaching the endorser, and a criminal offence in Section 89. This note sets out the definition limb by limb, the advertisement concept behind it, the enforcement architecture including the 2022 Guidelines and the dark-patterns rules, and the defences.

1. The Definitions

The advertisement concept is deliberately total: every medium (including the internet and websites, so influencer posts and platform listings are covered) and every form, down to the label, wrapper and invoice. The four limbs of 'misleading' then cover: outright false description; false guarantees and likely deception as to nature, substance, quantity or quality, judged, as under the unfair-practice cases, by the net impression on the ordinary consumer rather than literal truth; representations that would be an unfair trade practice if made directly, importing the whole Section 2(47) catalogue into advertising; and deliberate concealment of important information, the half-truth: the headline rate without the conditions, the 'clinically proven' without the study's limits, the price without the compulsory charges.

2. What Misleading Advertisement Is Not

The definition polices deception, not enthusiasm. Puffery, the seller's obviously unverifiable boast ('the best tea in town'), does not mislead the ordinary consumer, who discounts it; the line is crossed when the claim becomes specific, factual and testable, 'kills 99.9 per cent of germs', 'ranked first', 'guaranteed returns', and cannot be substantiated. Comparative advertising is lawful while it truthfully compares; it becomes actionable as disparagement (an unfair trade practice) when it falsely denigrates the rival's product. And an advertisement true when made does not become misleading by later events, though continuing to run it after the facts change may be.

3. The Enforcement Architecture

3.1 The CCPA: Section 21

Where the Central Authority is satisfied after investigation that an advertisement is false or misleading and prejudicial to consumer interest or in contravention of consumer rights, it may: direct discontinuance or modification of the advertisement; impose a penalty up to ten lakh rupees on the manufacturer, advertiser or endorser, and up to fifty lakh for subsequent contraventions; and prohibit the endorser of a false or misleading advertisement from making endorsement of any product or service for up to one year, extendable to three years on repeat, the provision that brought celebrity and influencer accountability into Indian law. The CCPA has used the power actively: penalty and discontinuance orders against advertisers across sectors, and advisories against surrogate advertising and exaggerated claims.

3.2 The 2022 Guidelines and the dark-patterns regime

Under Section 18, the CCPA issued the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022: conditions for bait and free claims advertisements, restrictions on ads targeting children, mandatory disclosure of material connections between endorsers and advertisers, and the due-diligence duty of endorsers to verify claims, the foundation of influencer disclosure norms. The Guidelines for Prevention and Regulation of Dark Patterns, 2023 extend the same policy to manipulative design: false urgency, basket sneaking, confirm shaming, forced action, subscription traps, drip pricing and the like, treated as misleading advertisement or unfair trade practice as their form requires, with the CCPA pressing platforms to self-audit.

3.3 The offence and the Commissions

Section 89 makes the false or misleading advertisement prejudicial to consumer interest a criminal offence for the manufacturer or service provider: imprisonment up to two years and fine up to ten lakh rupees, rising to five years and fifty lakh for subsequent offences. Before the Commissions, a misleading advertisement is an unfair trade practice ground: the consumer's individual remedies include refund, compensation, discontinuance and corrective advertisement at the trader's cost (Section 39(1)(f)), the advertisement is also the trader's 'claim' for defect purposes, so the product that fails the advertised standard is defective against limb three of Section 2(10).

4. Liability and Defences

• Who answers: the manufacturer or service provider whose product is promoted; the advertiser; the publisher of the advertisement in defined circumstances; and the endorser, the 2019 Act's addition.
• The endorser's due-diligence defence: no penalty lies on an endorser who exercised due diligence to verify the veracity of the claims made in the advertisement, the statutory incentive behind the 2022 Guidelines' verification and disclosure duties.
• The publisher's defence: a person who publishes the advertisement in the ordinary course of business is not liable to the CCPA's penalty, protecting media that carry, without authoring, the offending claim.
• Substantiation as the practical test: in proceedings, the advertiser who can substantiate the claim by adequate tests and material defeats the charge; the guarantee 'not based on adequate or proper test' is the statutory example of what fails.

5. Related Topics and Provisions

• Unfair trade practice (Topic 16): the parent concept imported by limb (iii)
• Defect in goods (Topic 13): the advertisement as the trader's claim
• The CCPA: structure, investigation and penalties, in a later note
• Sections 88 and 89: the offences chapter's advertising provisions
• E-commerce and dark patterns: the online application, in a later note