FDA Notice to Madhuri Dixit for her claims in Maggi advertisement –...

FDA Notice to Madhuri Dixit for her claims in Maggi advertisement – legal and ethical questions

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Food and Drug Administration (FDA), Haridwar has served a notice on the actress Madhuri Dixit for her claims of nutritional value of Maggi noodles in an advertisement. It is noteworthy that recently samples of Maggi collected by Uttar Pradesh FDA were tested and it was found that it had monosodium glutamate (MSG) and lead much in excess of the permissible limits, which may be harmful for the health, specially for the children who are the biggest consumers of Maggi. Madhuri Dixit has been asked to respond to the notice within 15 days. It has been reported that a case could be registered if she fails to respond to the notice in 15 days. She has been asked to explain how Maggi noodles are good for health of children and on what basis she made those claims in the advertisement. Moreover, she has also been asked to give details such as when she did the ad, how much money she received and what is the contract duration and she has also been asked to provide a copy of the contract for the advertisement.

Maggie ad by Madhuri Dixit

Some people have raised doubts as to how an actress could be sent notice by the FDA since she merely acted in the advertisement on the basis of the script provided to her. However, there could be issues of ethics and law here. Acting in an entertainment movie as per the script provided is alright, but acting in an advertisement as per the script provided may have ethical and legal issues. These are two entirely different things.

Watch the Maggie ad video by Madhuri Dixit:

Firstly, it is a fact that when celebrities endorse some product, people are attracted to using that product. Children are more likely to immediately start using the product if it is endorsed by celebrities who have been famous in their fields. This is the reason why companies pay huge amounts for doing advertisements to the celebrities, mainly from the film industry and the cricket field. At the same time, the celebrities owe some moral duty towards the citizenry to not do ads for a product unless they are sure about (at least) the basic quality of the product. It is a well-known fact that junk food and/or ready-to-eat food, such as Maggi, may not be good for children. So, how do you promote such products without verifying some basic details? Only for money? But, for the money that you get, consumers may have to pay the price in terms of health. Celebrities endorsing various products can often be misleading. One remembers Amitabh Bachchan endorsing the safety of ICICI Bank at a time when he was himself in financial crisis and was supposed to be defaulting on his bank loans. In contrast, in this regard, one must appreciate P. Gopichand, the legendry badminton player who refused to do advertisements for Coca Cola and cigarettes due to health hazards even though he was given lucrative offers after he won the All England Badminton Championship in 2011.

Also see: Court directs FIR in Maggi case against Amitabh Bachchan, Madhuri Dixit and Preity Zinta.

I am not against celebrities earning big money in advertisements and product endorsements. But, the question is should they not do at least a basic check about ethics part of it and the impact that it would have on the society? Should they bother only for their own money and not the least for the society which has turned them into celebrities?

Let me now come to the legal part. Firstly, as a general principle, one must remember that acting in a fiction or entertainment movie is one thing, but acting in an advertisement for a product that can have health hazards is entirely a different thing because in the latter case by promoting a hazardous product you may be violating the law relating to the food safety and may also be playing with the health of people. Let me now point out the legal provisions.

In 2006, Food Safety and Standards Act, 2006, was enacted by the Parliament. Some of its provisions came into effect from 15th October 2007 and the whole Act is learnt to have come into effect from 5th August 2011. Here is what Section 24 of this Act states:

24. Restrictions of advertisement and prohibition as to unfair trade practices.—(1) No advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made thereunder.

(2) No person shall engage himself in any unfair trade practice for purpose of promoting the sale, supply, use and consumption of articles of food or adopt any unfair or deceptive practice including the practice of making any statement, whether orally or in writing or by visible representation which—

(a) falsely represents that the foods are of a particular standard, quality, quantity or grade-composition;

(b) makes a false or misleading representation concerning the need for, or the usefulness;

(c) gives to the public any guarantee of the efficacy that is not based on an adequate or scientific jurisdiction thereof:

Provided that where a defence is raised to the effect that such guarantee is based on adequate or scientific justification, the burden of proof of such defence shall lie on the person raising such defence.”

What is “advertisement” is defined in Section 3(b) of the Act as under:

“(b) “advertisement” means any audio or visual publicity, representation or pronouncement made by means of any light, sound, smoke, gas, print, electronic media, internet or website and includes through any notice, circular, label, wrapper, invoice or other documents;”

Further, Section 53 of the Food Safety and Standards Act lays down as under:

53. Penalty for misleading advertisement.—(1) Any person who publishes, or is a party to the publication of an advertisement, which—

(a) falsely describes any food; or

(b) is likely to mislead as to the nature or substance or quality of any food or gives false guarantee,

shall be liable to a penalty which may extend to ten lakh rupees.

(2) In any proceeding the fact that a label or advertisement relating to any article of food is respect of which the contravention is alleged to have been committed contained an accurate statement of the composition of the food shall not preclude the court from finding that the contravention was committed.”

A perusal of these legal provisions makes it clear that a person, taking part in the publication of an advertisement, may be punished in certain circumstances.

So, the question is whether celebrities, while doing ads for products that can possibly have some health issues are not supposed to take at least some basic reasonable care to check the details of the product and be cautious? Should they not show at least some concern for the health of the society and should they be concerned only about the money package they get by doing the advertisement? Should a health-related advertisement be treated at par with an entertainment movie where the actor merely acts as per the script provided to him or her?

Update (31 May 2015): After I wrote this article, one of my good friends (whose name I cannot disclose without his permission) commented as under:

“I think the logic of the celebrity acting in an advertisement is similar to her acting in a movie. It is just a script being executed. In this case, had she appeared as herself, there might have been some question as to what her source of knowledge about the product is and what her credentials are to comment on it. Also, she talks of oats being the ingredient, which is healthful. The discovery of MSG and other objectionable ingredients can not be linked to her. For all one knows, it may be a manufacturing process/quality control issue. If there is a regulation, not to use MSG, that may come into play against the company. As far as the advertisement is concerned, this instance should be covered by free speech and buyer beware principles.”

My response to this comment is as under:

Let me clarify that I have nowhere stated that Madhuri Dixit is responsible for the health hazards of Maggi. The article talks in general terms of celebrities endorsing products and that they should consider acting in an ad for a product and acting in a movie entirely differently. The reason is very simple. Sachin Tendulkar is considered as God. Salman Khan is revered by his fans in spite of a conviction in a criminal case (and another pending criminal case) against him. Same applies to Amitabh Bachchan and many other celebrities. People blindly follow these celebrities, even if they are not speaking for themselves and merely reading the script as an artist. Had it not been the celebrity influence, a company would not be foolish to pay Rs. 20 crore to Sachin Tendulkar when the same role can be played by some XYZ for Rs. 20000/- only or may be much less. And, I hope Sachin Tendulkar knows it that he carries undue influence over his crores of fans. Other celebrities know it too.

Next, that it is question of drawing the Laxman Rekha. When Sachin refused to do a liquor ad even though Rs. 20 crore was offered, he drew a Laxman Rekha since he did not want his fans to follow this. When P. Gopichand refused Coca Cola and cigarettes ads, he drew his own Laxman Rekha much more strictly. When Amitabh Bachchan refused Pepsi ad (after doing it for some years initially, if I remember correctly), he RE-drew his own previous Laxman Rekha. This means that they do apply their mind to some extent. What is suggested in the article is that the Laxman Rekha should be drawn more in favour of societal interests, after duly considering the interest of the society also and not merely on the basis of the money offered. The fact remains that there is a law that requires that the ad should not mislead or misrepresent about food items. Everyone is supposed to know the law and its ignorance is no excuse. One ignores the law at one’s own peril. When a duty is cast under a law to act responsibly while doing an ad, then it definitely has some adverse impact on the right of free speech. It acts as a restriction. There is always a delicate balance to be maintained between the right of free speech and the duty to act responsibly in the interests of the society wherever the law requires it. Unlike USA, in India the right to freedom of speech has many restrictions. A single law like IPC is full of such restrictions.

To reiterate, it is not my case that Madhuri Dixit, in this particular case, is guilty. This will be decided by due process of law, and most likely she would not be found guilty. At the same time, I have seen many experts advising that ready-to-eat foods like Maggi are not good for the health of children (if for nothing else, then due to certain preservatives and flavours being used; and lead and MSG have been used exactly for that purpose, I suppose). I think that is a common knowledge, at least this is what is my understanding. So, perhaps, celebrities should be on the side of caution. If they blindly endorse products thinking that it is their right of free speech, well, then I can only feel sorry that we have such irresponsible celebrities who do not bother for their fans and for the society and bother only for money. In such a scenario, my respect for a celebrity like P. Gopichand would increase manifold from the already existing high level of respect for him, since he acted responsibly and refused to accept ad for products in which he did not have faith.

In my humble opinion, there is a lot of difference between acting in an entertainment movie and in an ad for a product that may probably have certain health issues. In any case, I have raised some general issues in the context of Maggi issue which is in media news currently.

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