Nov 18, 2018

False Advertisement and Vulnerable Persons in Nigeria (2) | Akpan, Emaediong Ofonime




Flawed and insignificant research propagated in advertisements amount to misleading advertisements. In the same vein, where an advertisement, is based on flawed and insignificant research or are contradicted by prevailing authority or research section 43(a) of the Lanham Act refers to such advertisements as false. In Alpo Pet Foods v. Ralston Purina Co.[ii] the claimant brought a claim of false advertising against Purina whose adverts that its dog food was beneficial for dogs with canine hips dysplasia demonstrating that the claims was supported by test results conducted by Purina which showed that the methods used to conduct the tests were inadequate and the results could therefore not support Purina's claims. 


The case involving Purina is a common re-occurence in Nigeria specifically the Uyo Metropolis in Akwa Ibom State. Adverts that make claims that have been rebutted by prevailing scientific authority can be sighted within the city. (Discovery Park " Eat a Plate of Isi-Ewu or Nkwobi daily its is good for your health) such adverts pose health risks for vulnerable consumers especially the elderly. They lure consumers to make decisions (purchase decisions) that are based on such claims that have been unseated by superior evidence like the opinion of Ballentyne[iii] which states that goat meat though healthy should not be consumed daily. Another popular case of advertisements that makes flawed research claims are the likes of Iguedo Goko cleanser, Dazzle Shea butter. These adverts claim to cure all kinds of ailments and make diagnosis based external symptoms of a person example rashes, heat flushes, painful urination etcetera which are not enough base medical diagnosis. The adverse impacts of these advertisements have led consumers into going against established medical precaution s and placing their confidence in these products can eventually worsen their condition and send them to intensive care.



Trade marks infringement also constitutes false advertisements as it is intended to mislead and confuse consumers. In Edina Really Inc. v. TheMLSOnline.com[iv] the use of a key word in an advert amounted to trade mark infringement and false advertisement as it was purported to mislead consumers. In Hamzik v. Zale Corps/Delware,[v] the use of another’s trademark to trigger online advertisements (i.e to generate traffic) was regarded as a clear cut case of false advertisement and trademark infringement.[vi] The case of Polariod Corp v Pzlora Electronics Corp laid the test for such confusion. False labelling on products constitutes false and misleading advertisements; it may take various subtle ways like images that are suggestive, false production origin, false nutritional value. The Pre-Packaged food (Labelling) Regulations 1995 and Regulation 18 of The Nigerian Food Products (Advertisement) Regulations[vii] prohibits false labeling. The Food and Drugs Act 1955 makes it an offence to give any food exposed for sale a label that falsely describes the food or is calculated to mislead as to its nature, substance, or quality. Quality was been defined in the case of Aness v. Grivell[viii] to mean the commercial quantity and not the commercial description. Quality also includes nutritional or dietary value of the food and any label construed to mislead the public on such grounds are misleading advertisements. In Kingston-upon-Thames Royal London Borough Council v. F.W Woolworth and Co. Ltd,[ix] the test of false labeling or advertisement as depends on whether a label or advertisement falsely described food seems to depend on how an ordinary individual would interpret the description in question. The publishing, giving or display of such product is a strict liability offence without the element of mens rea needed to secure a conviction as decided in Kat v Diment.[x] The NAFDAC Guidelines for Advertisements of Regulated Products in Nigeria[xi] recognises the prevalence of herbal medicine amongst Nigerians. In a bid to protect the consumer from misleading adverts or labeling of herbal medicines states that such labels and advert shall include the caveat, “These claims have not been evaluated by NAFDAC.”[xii] This is not enough protection especially where most adverts by herbal medicine dealers are aired on public address systems in the local languages and since the caveat by NAFDAC only requires that it be stated in English language by implication, it is this lacuna that herbal medicine advertisers exploit and deceive consumers. Furthermore the NAFDAC regulation does not foresee the protection of animals even though that is beyond the scope of this work. The Medicines Act[xiii] the United Kingdom counterpart of the NAFDAC Regulation takes a more holistic definition which includes substances or articles manufactured sold or supplied to be administered to human beings or animals for a medicinal purpose. The Medicines Act prohibits the issuance of false advertisements relating to medicinal products. It also states that an advertisement is false or misleading only if it falsely describes the medicinal properties of the medicinal product to which it relates.

Advertisements on weight loss product have also come under scrutiny for being false and misleading. While some consumers do not live to tell the story, on a daily basis vulnerable consumers are influenced by the idea of a perfect body sold by the media to purchase quick weight loss products. In the Indian case of Smt Divya Wood v Ms Gurdeep Kaur Bhuhi,[xiv] the court decided that a refund be made to a consumer who paid for a body care programme that promised weight reduction. After payment and undergoing treatment the plaintiff did not lose any weight. The apex consumer court said "we entirely agree with this findings recorded by the fora below such tempting advertisements, giving misleading statements with regard to the alleged treatment, are increasing day-by-day and are required to be checked so that persons may not be lured to pay large amounts in a hope that they can reduce their weight by undergoing the so-called treatment." In Jody Gorran v Atkins Nutritional Inc,[xv]  the plaintiff Jody Gorran lured by the advert Atkins Nutritional Inc. proceeded to begin their diet as advertised. Rather than lose weight Jody Gorran gained high cholesterol levels, angina and some other heart complications that needed emergency surgery to save his life. He sued Atkins the courts however did not rule in his favour stating that the Atkin’s diet book did not constitute advertisements. It appears the decision of the court was based on the fact that safe and effective methods of weight loss often involve a modification of behaviour, decreased calorie intake and exercises. This is not particularly appealing as a result some consumers opt for weight loss products that promise rapid weight loss with little or no effort.[xvi] Despite efforts to curb false and misleading adverts, they have continued to grow in weight-loss advertisements, this is problematic because some vulnerable consumers base their decision making on advertising, and advertisements with false and misleading information pose threats to them. Furthermore, if the entire field of ‘weight-loss’ advertisement is subject to wide-spread deception, advertising will lose its role in the efficient allocation of resources in a free-market economy. This is because other manufacturers end up advertising the impossible in order to compete and the deceptive promotion of quick and easy weight-loss solutions could potentially fuel unrealistic consumer expectations.



Making false promises in order to sell a product is another unfair and misleading advertising tool. Promotional advertisements in general encourage the consumption of these products in large quantities in avid to win the lucky reward. In the case of Bonn Nutrients Pvt. Ltd v Jagpal Singh[xvii] a consumer brought a complaint that in order to promote a brand of bread called "Bonn" the manufacturers announced through advertisements that each packet will contain a scratch and win coupon. The consumer-complainant claimed he bought several quantities of the product but every time he scratched the coupon it read "try again". The court ruled in his favour and stated that the advertisements misled the general public and it had not made good on the statements it made in its advertisements. Cases like “Bonn" exists howbeit; the regulatory agency saddled with the responsibility is the Nigerian Lottery Commission. They appears to be only concerned with ensuring that the lucky prize exists and nothing more. It can be said conclusively that these regulatory agencies do not provide protection for the consumer who might be harmed by his efforts to win the coveted prize, however, the efforts include excessive consumption of the product.



END NOTES



[i] Akpan, Emaediong Ofonime is currently undergoing postgraduate studies at the University of Uyo and majors in Consumer Protection. She can be reached at akpanemaediongofonime@gmail.com.
[ii]    913 F.2d 958 (D.C. Cir. 1990)
[iii]   D Ballentyne, www.supplementsource.co.ca accessed 9th January 2017.
[iv]    (2006) WL 737064. See also F.T.C v. Sili Neutralceutical 154 F.SUPP 2D 497. And Playboy Enterprises               Inc. v. Netscape Communication Corps 55 F. SUPP 2D 1070 (C.D CAL). 
[v]     NO3 : 06-CV-1300
[vi] The Trademark Act CAP T 13 LFN 2004 regulates the use of a trademark. Consequently, the use of a trademark identical to that of COCACOLA by AJE[vi] to sell an identical product 'Big Cola' amounts to only an infringement of trade mark because the existing framework’s definition of false advertisement does not bring into its purview trademarks infringement. Consumers were under the impression that it was coca cola. One trader noted that she was mislead to  purchase 'Big Cola' thinking it was Coca cola, she lost customers who came to purchase coca cola because she sold ''Big Cola' to consumer unknown to her that it wasn't Coca-Cola which the customer requested.
[vii]   1994 NO.15. S.I 13 of 1996
[viii]  (1915) 3KB 685, at p.691.
[ix]    (1968) 1Q.B. 802.
[x]     (1951) 1 K.B. 34.
[xi] NAFDAC is empowered by the NAFDAC Act CapN1 LFN 2004 to regulate and control the manufacture,               exportation, importation, and advertisement of medicines, cosmetic, medical devices, bottled water and              chemicals. The Advertisement Control Division in the directorate of Registration and Regulatory Affairs of        NAFDAC.
[xii] Regulation 10
[xiii] 1968
[xiv] (1989) L.P.A No. 646
[xv]   No. 2004-CC-006591-MB(Fla. Palm Beach County Ct.May 26,2004)
[xvi] J Cawley et all, ‘The Effect of Advertising on Consumption: The Case of Over-the Counter Wight Loss Products’ (2011) University of Cornell Law Review
[xvii] IV (2005) CPJ 108 NC.

Akpan, Emaediong Ofonime is currently undergoing postgraduate studies at the University of Uyo and majors in Consumer Protection. She can be reached at akpanemaediongofonime@gmail.com

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