The Legal Boundaries of Advertising: Puffery, Disparagement, and Comparative Advertising”
INTRODUCTION
In 2025, the world of advertising is marked by fierce competition, where brands constantly vie for consumer attention. In this race, the delicate boundary between puffery and product disparagement often becomes blurred, sparking frequent controversies. Advertising is an important factor for a products future growth. But with more competition coming in the economy, it was necessary to introduce advertising laws, since more and more misleading advertisement started taking place. The hierarchy for evolution for advertising laws is mentioned below:
Prior to independence, advertising was mostly supervised by British-era regulations such as the Indian Penal Code (IPC), 1860, which dealt with misleading advertisements through prohibitions pertaining to fraud and deception. There was also pharmaceuticals and Cosmetics Act of 1940 which controlled ads for pharmaceuticals and medical products to prevent fraudulent promises. On the other hand, during the post-independence era, The abuse of brand names in advertising was addressed by the Trade Marks Act of 1958 and its replacement, the Trade Marks Act of 1999. Now today, in the modern day framework, ASCI guidelines, that is Advertising Standards Council of India, which was established in 1985, which has been notified by the Ministry of Electronics and Information Technology that these codes can be legally binding.
ADVERTISING STANDARD COUNCIL OF INDIA
ASCI is a self-regulating body which also have been recognized by the Ministry of Electronics and Information and broadcasting, Government of India by inserting rule 7(9) in the Cable Television Network, Rules, 1994. A self-regulatory organization, creates and implements rules to guarantee that commercials are honest, equitable, and not deceptive. The ASCI Code for Self-Regulation in Advertising is a thorough framework that covers topics like social responsibility, honesty, and decency. ASCI actively tracks ads on digital and other media platforms and takes action against those that don’t follow its rules. Additionally, it handles customer complaints by offering a channel for resolving issues pertaining to offensive or misleading advertising.
COMPARITIVE ADVERTISING VS. DISPARAGEMENT
Courts have consistently clarified the distinction between comparative advertising and product disparagement through numerous landmark judgments, reinforcing the importance of ethical advertising practices. There are subtle but important differences between puffery, disparagement, and comparison advertising. There are numerous examples of rival brands using references to their rivals’ products in their own advertising.
Disparagement: As per Black’s Law Dictionary disparagement means “A derogatory comparison of one thing with another; the act or an instance of castigating or detracting from reputation of, esp. unfairly or untruthfully; a false and injurious statement that discredits or detracts the from the reputation of another’s property, product or business.”
Puffing: Puffing can be defined as “an exaggerated advertisement, blustering and or a overstated claim about a product or service to try to sell it”. In the case of Colgate Palmotive Company and Anr vs. Hindustan Unilever Ltd[1], the court stated that while puffing is permissible in comparative advertising, disparagement occurs when one tradesman makes defamatory remarks about the products of another tradesman in the same advertisement.
Comparative Advertisement: As the name suggests, comparing products for advertising. Sometimes advertisements in order to show their superiority can explicitly compare their products with that of their rival products. Comparative advertising is sometimes justified on the grounds that advertising is commercial speech and hence protected by Article 19 (1) (a) [2]of the Indian Constitution. But at the same time, freedom of speech does not allow for defamation, so it’s unlikely that an advertising can defame a competitor’s goods without consequences under the guise of free speech.
These three terms runs parallel and hence, the difference between these three words is very subtle and there is a thin line difference between the three leading to many conflicts. This has happened multiple times between the same product classes, such as Coke and Pepsi, Colgate and Pepsodent, and so on. In each of these scenarios, the goods and services of one tradesman are contrasted against the goods and services of another trader. Surprisingly, the law as well as the principle settled by the courts have given guidelines, as to which extent the comparative advertising can be done and when does a product disparagement takes place. In the case of Reckitt Benckiser (India) v. M.P Ramchandran[3] the court proposed the following propositions relating to comparative advertising. These are
- A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue
- He can also say that his goods are better than his competitors, even though such statement is untrue
- For the purpose of saying that his goods are the best in the world, or his goods are better than his competitors he can even compare the advantage of this goods over the goods of others.
- He however, cannot while saying that his goods are better than his competitors, say that his competitor’s goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitor and their goods, which is not permissible.
- If there is no defamation to the goods or to the manufacturer of such goods no action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining repetition of such defamation.
The court also in the case of Dabur India Ltd. Vs. Colortek Meghalaya Pvt. Ltd[4]., had listed down certain questions in order to find whether a product was disparaged or not. These are;
- The Intent of the advertisement– this is mainly understood from its story line and the message sought to be conveyed.
- The overall effect of the advertisement– does the advertisement promote the advisor’s products or does it disparages or denigrate a rival’s product?
- The manner of advertising– is the comparison by and large truthful or does it falsely denigrate or disparage a rival product?
CONCLUSION
There is a conflict between the right to freedom of expression under Article 19(1)(a) of the Indian Constitution and the need to safeguard competitors from making defamatory statements about others products. As the economy is growing and there is a intense competition for consumer attention and hence firms are increasingly turning to compare their products with that of their rival products in order to show their superiority with the rivals. But sometimes the clear demarcation between puffing and comparative advertising occasionally dissolves. Hence it becomes difficult to create a balance between permissible puffery, valid comparative advertising which can lead to product disparagement further leading harming the competitor’s reputation. There has to be a greater emphasis on transparency and consumer protection. In this era of growing economy, maintaining the right balance between disparagement and puffing is crucial because it ensures that business can compete fairly without making misleading advertisement or making defamatory statements.
[1] Colgate Palmolive Company and Anr vs. Hindustan Unilever Ltd 2013 SCC Online Del 4986
[2] India Const. art. 19, cl. 1(a)
[3] Reckitt & Colman of India Ltd. v. M.P. Ramchandran, : 1999 (19) PTC 741
[4] Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. : 167 (2010) DLT 278 (DB)
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