Date:06/04/2008 URL: http://www.thehindu.com/2008/04/06/stories/2008040655661200.htm

National

No unfair trade practice in cigarette ad: Supreme Court

J. Venkatesan

Quashes order against advertisement featuring Akshay Kumar

No suggestion it was about actor or that he could perform stunts without duplicates
Nor did ad detract from statutory warning

New Delhi: The Supreme Court has set aside a National Consumer Disputes Redressal Commission order that an advertisement showing the smiling face of actor Akshay Kumar on cigarette packs sold under the brand name ‘Red and White’ amounted to an unfair trade practice.

Issued by Godfrey Phillips India in 1999 in newspapers and magazines, the advertisement, apart from showing the pack of cigarettes with the brand name, said “Red and White smokers are one of a kind”.

It showed Akshay Kumar holding a cigarette. The pack carried the statutory warning “Cigarette smoking is injurious to health.” Both the district forum and the State Commission, New Delhi, dismissed a complaint from Ajay Kumar.

However, the National Commission held that the slogan “Red and White smokers are one of a kind” showing the image of Akshay Kumar indicated that smokers of Red and White cigarettes could be super actors performing all film stunts on their own.

The Commission held that the advertisement amounted to an ‘unfair trade practice’ and directed the company to discontinue it and to issue corrective advertisements to neutralise the effect of the impugned, misleading one.

Allowing the company’s appeal and quashing the impugned order, a Bench consisting of Justices Arijit Pasayat and P. Sathasivam said: “As rightly contended 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 was of Akshay Kumar 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 pure surmises.”

Corrective ad not possible

As for 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, the corrective advertisement as directed could not have been given.