On 10th August 2023, the Department of Consumer Affairs (“DCA”), under the Ministry of Consumer Affairs, Food and Public Distribution released Additional Influencers Guidelines for Health and Wellness Celebrities, Influencers, and Virtual Influencers (“Guidelines”). The Guidelines deal with misleading advertisements, unsubstantiated claims and ensure transparency in health and wellness endorsements and apply to medical practitioners and health & fitness experts, celebrities, influencers, and virtual influencers presenting themselves as health experts or medical practitioners.
The Guidelines have been developed after extensive discussions with the stakeholders and are an extension to the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 (“Misleading Ads Guidelines”) notified on 9th June 2022, and are in lieu of ‘Endorsement Know-hows!’ guide booklet that was released on 20th January, 2023 by the DCA.
The salient features of the Guidelines are as follows:
- Disclosure and disclaimer – While talking or making claims on health-related topics, such as disease prevention, treatment or cure, medical conditions, advantages derived from food items and nutraceuticals etc., medical practitioners, health and fitness experts, celebrities, influencers, and virtual influencers are required to display disclosure or disclaimer during endorsements, promotions or at any instance of making health-related assertions.
- Due Diligence & Fact-based information – Under the Guidelines, endorsers are “encouraged” to carry out a thorough review and ensure that that they can substantiate the claims made in the advertisement. The endorsers must carry out adequate due diligence before endorsing a product/ service and may use/experience the product/ service before the endorsement. Information/advice shared by the celebrities, influencers, and virtual influencers must be substantiated by facts. Such celebrities, influencers, and virtual influencers should provide appropriate citations and sources of the information shared by them and should refrain from making false, misleading, or exaggerated claims that could mislead viewers.
- Exemptions – The Guidelines exempt celebrities, influencers, and virtual influencers who share general health and wellness advice not specifically associated with any product/service or not targeting any specific health condition. However, celebrities, influencers, and virtual influencers presenting themselves as health experts or medical practitioners are required to make a clear distinction between their personal views and professional advice and refrain from making any specific health claim without substantiated facts.
- Advisory Note – The Guidelines include an advisory note as per which celebrities, influencers, and virtual influencers must not endorse/distribute information/advertisements about any health and wellness product/service which is prohibited from being advertised under any law or rules & regulations in a manner that implies/encourages its usage for diagnosing, curing, alleviating, treating, or preventing any disease, disorder, or condition.
- Reporting & Monitoring – Celebrities, influencers, and virtual influencers are required to cooperate with any investigation by the relevant authorities concerning the authenticity of any claim made by them in any endorsement. Any non-compliance of the Guidelines/act of sharing misleading or false information will be penalised in accordance with the Consumer Protection Act 2019 and other relevant provisions of the law related to sharing of misleading, false, or harmful information.
In particular, certified medical practitioners and health and fitness experts who hold certifications from recognised institutions must disclose that they are certified health/fitness expert and medical practitioner while making health related claims. Additionally, while promoting health and wellness products/services, celebrities, influencers, and virtual influencers must include a disclaimer clarifying that their content does not substitute professional medical advice, diagnosis, treatment and must encourage the viewers to seek advice from healthcare professionals prior to significantly altering their diet, exercise, or medication routines. The Guidelines provide the format of making such disclosure and state that the disclaimer/disclosure should be hard to miss in static ads as well.
The rise in the number of influencers/health influencers and their growing influence has prepared the ground for making unsubstantiated claims and spreading misinformation pertaining to health-related issues. Such influencers often lack the expertise required for adequately advising on such issues.
In light of the above, the release of the Guidelines is a welcome step since they acknowledge the influence that new age content creators have over people. The Guidelines have been issued in an easy-to-understand format, providing teeth to the Misleading Ads Guidelines thereby safeguarding consumer interests while ensuring transparency, especially in the ever-expanding influential digital space.
The Guidelines have been prepared after discussions with stakeholders including inter alia the Advertising Standards Council of India (“ASCI”), which is a self-regulatory body governing advertisements in India. Notably, after the release of the Guidelines, ASCI also updated its Guidelines for Influencer Advertising in Digital Media (“ASCI’s Influencer Guidelines”). As per ASCI, influencers in the health sector must be qualified as wrong advise can lead to serious and substantial losses to the consumers.
The Guidelines and ASCI’s Influencer Guidelines place the onus on the celebrities, influencers, and virtual influencers to provide accurate information to the consumers. The imposition of penalty for non-compliance with the Guidelines and proactive role played by ASCI in enforcing the ASCI Influencer Guidelines will deter such celebrities and influencers from engaging in negligent practices and will encourage them to act more responsibly while making health related assertions.
Link to the Department of Consumer Affairs’ Additional Influencers Guidelines for Health and Wellness Celebrities, Influencers, and Virtual Influencers – https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Additional%20Influencer%20Guidelines%20for%20Health%20and%20Wellness%20Celebrities%2C%20Influencers%20and%20Virtual%20Influencers.pdf