Misleading advertisements And An Affected Consumer’s Right To Enforce A Legal Action By Adamu Isa

INTRODUCTION

Quite often, when we tune in to our favourite TV channel or programme, we are exposed to multifarious advertisements at regular intervals. Flipping through the pages of a newspaper or magazine, one is sure to jump into various advertisements inviting for offers from the readers. Some advertisements, of course, may be misleading, as the advertised content(s) may not have the degree of efficacy or quality portrayed. Such advertisements are technically referred to as the snake oil adverts.

In Nigeria, advertisements are regulated by different legislations — federal, state and subsidiary. For example, APCON (Advertising Practitioners Council of Nigeria) is the main government body in charge of approving adverts on food, cosmetics, drugs and beverages, featured on television, radio and the print media. Section 23 (1) of the APCON Act empowers the body to do so through an established panel known as Advertising Standards Panel. Statutory reliance in this essay shall therefore be on some of these legislations, decided cases and other relevant sources.

Meaning of Misleading Advertisement

The European Commission defines misleading/deceptive advertisement as a commercial practice that contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer to take a transactional decision that he would not have taken otherwise. Misleading advertisement also constitutes a misrepresentation in Law. In the case of Sodeinde v. Allen & Anor (2018) LPELR-46782(CA), the Court of Appeal, Per Obaseki, JCA defined misrepresentation as a

“representation or statement that is false in substance and in fact. It is the act of making a misleading statement about something.”

Misrepresentation in advertisements may be in the form of claiming a product has some purported health benefits. Another form is the practice of advertising a something with hidden extra charges, such that a potential buyer or consumer will have to pay more than the amount specified. It can also be in the form of claiming a product has a top-notch quality while it is in fact, of coarse quality.

Proving Misleading Advertisement In A Lawsuit

Under section 8 (a-b) of the Consumer Protection Council Act, a consumer affected by a misrepresentation in an advertisement has the right to sue the entity behind it.

The landmark US case of Wiener v. Dannon Company Inc. 255 F.R.D. 658 (C.D. Cal. 2009), presents a perfect illustration of misleading advertisement. Dannon alleged that its product, Activia yogurt is “scientifically proven” to naturally regulate digestion when eaten daily for two weeks. It was widely publicized on magazines, newspapers and television. The plaintiff, acting in good faith of the defendant’s advertisement purchased and consumed the product. When there was no desired outcome, he filed an action against the Company. The defendant company paid $45 million in damages to the plaintiff, and some consumers proven to have purchased the product. It is apparent that the usage of the term “scientifically proven” was one of the reasons why the consumers, especially the “good-health freaks” parted with some money to purchase it. The National Broadcasting Commission Act in Nigeria, under Chapter 7 (n) prohibits the usage of, unless backed up by relevant authorities, terms such as “Best”, “Number one”, “Trusted”, “Guaranteed”, etc., for advertisements. This is meant to prevent consumers from being misled like in the above cited case. The succeeding paragraph of the chapter also prohibits hyping of any product to be broadcasted for advertisement.

In order to validly prove misleading advertisement in a suit, which is an ingredient of misrepresentation, the party who sets up the claim will be burdened to prove it as established per Kharibi-whyte in Afegbai v A.-G., Edo State (2001) 14 NWLR (Pt.733) 425. The conditions upon which a civil action may be brought before a court, has been subtly captured under Section 8 (a-b) of the Consumer Protection Council Act. It provides that:

1. Whereupon an investigation by the Council or State Committee of a complaint by a consumer, it is proved that the consumer’s right has been violated; or
2. that a wrong has been committed by way of trade, provision of services, supply of information or advertisement thereby causing injury or loss to the consumer;

the consumer shall, in addition to the redress which the State Committee, subject to the approval of the Council may impose, have a right of civil action for compensation or restitution in any competent court.”

A consumer’s success in a misleading advertisement suit therefore depends on whether they are able to prove a misrepresentation contained in the advert they relied upon for a transaction or business.

Who Is Liable For A Misleading Advertisement?

Section 11 of the Consumer Protection Council Act specifies the liability and punishment for false advertisement in the following words:

Any person who issues or aids in issuing any wrong advertisement about a consumer item, is guilty of an offence and liable on conviction to a fine of ₦50,000 or to imprisonment of five years or to both such fine and imprisonment.

Liability is therefore on the advertiser and any other person or agent who aids in issuing such advertisement. However, Section 20 of same act gives an exception on the liability of the later. Where they (publisher/advertiser) are able to provide, at the request of the Council, the name and address of the manufacturer, packer, distributor, seller, or advertising agency, they will not be held liable.

Similarly, Section 125 (1) of the Federal Competition and Consumer Protection Act provides:

(1) Where in the marketing of any goods or services an undertaking or any person acting on its behalf by words or conduct-

(a) directly or indirectly expresses or implies a false, misleading or deceptive representation concerning a material fact to a consumer or prospective consumer, or

(b) fails to correct an apparent misapprehension on the part of a consumer or prospective consumer, amounting to a false, misleading or deceptive representation or permit or require any other person to do so, the undertaking is liable for damages to any person damaged, and shall be ordered to make monetary restitution.”

Contrary to the provision of paragraph (b) above, liability will not be on the representor for the representee’s misapprehension if he(represent or) says the truth about a product, and the representee understands it in another sense as untrue. This position was further confirmed by the Supreme Court per Ayoola, JSC:

“Even if a statement is true in the sense in which the represent or meant it but is so obscure that the representee understands it in another sense, in which it is untrue, the represent or is not liable if his interpretation is the correct one.” Afegbai v. Attorney General of Edo State (2001) LPELR-SC.111/1996.

Conclusion

A consumer in Nigeria therefore has a right to sue a company, business venture or person whose misleading advertisement(s) the consumer unknowingly relied upon to make a purchase.

Adamu Abubakar Isa,

Ahmadu Bello University, Zaria,

200 Level.

You can contact the author via his phone number, 07030992543 or via his e-mail address, [email protected]