MUMBAI: The Bombay High Court has directed popular FMCG brand Amul to suspend the telecast of the television commercial that showed frozen desserts in a negative light. The court has found the advertisement to be disparaging to HUL's Kwality Walls brand having a market share of around 51 per cent.
Hindustan Unilever Ltd (HUL) has submitted that the said commercial, along with its transcripts, depicted a child being discouraged from eating frozen dessert on the grounds that it contained vanaspati oil (which is adverse to health). Kwality, in its plaint, however, averred that its frozen desserts do not contain vanaspati, and are made using vegetable fat.
In March 2017, HUL had filed a suit before the Bombay High Court claiming that the Gujarat Co-operative Milk Marketing Federation, which takes care of Amul’s marketing was spreading malicious information about its Kwality products. The court yesterday held that the ad showing the difference between frozen desserts and ice-cream amounted to slander.
The court, in its order, stated that Amul has been restrained from broadcasting, telecasting or otherwise howsoever communicating to the public or publishing two television commercials or any part or any other advertisement of a similar nature, denigrating or disparaging Kwality products, including frozen desserts.
HUL has also charged that the Amul TVC designed to mislead the public into believing that an entire class of products are frozen desserts, and are, therefore, unfit for consumption. According to HUL, a majority of Kwality products sold in India are classified as frozen desserts under the Food and Safety Standards Act, 2006.
While deciding the issue, Justice SJ Kathawalla delved into the difference between ice-cream and frozen desserts as per Regulation 2.1.7 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. As per the Regulations, the distinguishing factor between the two is that ice creams must contain over 10% milk fat, whereas frozen desserts must contain over 10% total fat (i.e. milk fat and/or edible vegetable oil).
The law also distinguishes between edible vegetable oil, which the plaintiffs use in their products and hydrogenated vegetable oil, commonly referred to as Vanaspati. After seeing the ad, the court held, “The Defendants have therefore made a false representation to the consumers and also indulged in a negative campaign that no frozen dessert is pure, and only Amul ice cream is pure, as all frozen desserts contain Vanaspati, and are therefore inferior.”
The court also said that the disclaimer of the ad clarifying that “vanaspati” refers to “vegetable oil” was misleading. Moreover, the defendants had issued another ad replacing “vanaspati” with “vanaspati Tel” in the voiceover, which the court said made no difference whatsoever.
The defendants claimed that their TVCs were part of a campaign to educate the consumers about the difference, and were not targeted at denigrating the plaintiff’s products. Justice Kathawalla said: “Any campaign to educate the members of the public by placing before them the true and correct facts/ingredients used in a product should always be welcomed. However, no manufacturer can place misleading information before the consumers qua the product of his rivals, and thereby disparage/discredit/belittle such product including influencing the consumer not to buy the same in the garb of educating and/or bringing the correct facts before the members of the public…”
