Advertisement is an important activity undertaken by every business concern to promote its products to the general public who are the end users of the products. With the exponential growth of the number of similar products manufactured, the competition to become one of the best-selling product continues to grow. However, to what extent can advertisement be controlled and restricted in its application to the general public has been reiterated by the Courts in India. The Delhi High Court, in the matter of Horlicks Ltd and Anr. Versus Heinz India Private Limited has held that advertisement can merely be restricted in accordance with the prescribed law enacted under Article 19(2) of the Indian Constitution.

The Plaintiff Company in the said matter had sought to restrain the Defendant Company from publishing and advertising its health drink product ‘Complan’ as it interfered with the goodwill and reputation of the Plaintiff Company’s own product ‘Horlicks’. The said suit was in regards to an advertisement published by the Defendant Company wherein its product was compared with that of the Plaintiff Company’s product which stated that “One cup of Complan (33g) gives 5.94g of protein while two cups of Horlicks (27*2=54g) gives 5.94g of protein basis recommended pack dosage….”. The Plaintiff contended that the said impugned advertisement was stating incorrect facts by manipulating the serving size of Complan in the advertisement. Furthermore, the said advertisement wrongly showed a correlation between the amounts of protein consumed with that of the growth in a child.

The Single Judge Bench of Justice Manmohan rejected the arguments of the Plaintiff stating that the said advertisement merely compared “a material, relevant, verifiable, representative feature of the goods in question and is factually true”, and that the defendant had not manipulated its serving size as it has been constant since 1934. It further observed that:

“38. In the opinion of this Court, the purpose of the provisions in the Act, 1999 and the ASCI Code which lists the conditions under which comparative advertising is permitted is to stimulate competition between suppliers of goods and services to the consumer‟s advantage,by allowing competitors to highlight objectively the merits of the various comparative products while, at the same time, prohibiting practices which may distort competition, be detrimental to competitors and have an adverse effect on consumer choice.”

On the test of determining ‘misleading advertisement’, the Court stated that:

• Firstly, misleading advertising must deceive the persons to whom it is addressed or at least, must have the potential to deceive them;

• And secondly, as a consequence of its deceptive nature, misleading advertisement must be likely to affect the economic behavior of the public to whom it is addressed, or harm a competitor of the advertiser.

Thus the Court dismissed the petition stating that the impugned advertisement merely sough to compare the protein content of the recommended’per serving’ sizes of both products, which is significant information for the consumer concerned.

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