CCPA Introduces New Guidelines to Ban Surrogate Advertising  

In the latest development in the advertising space, the Central Consumer Protection Authority (CCPA) under the Department of Consumer Affairs has introduced ‘Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022’. These guidelines aim to curb misleading advertisements and endorsers by putting a complete ban on surrogate advertising effective June 09, 2022. These new guidelines will apply to all advertisements irrespective of the form, format, or platform. 

The Consumer Protection Act, 2019, provides for ‘misleading advertisements’ under Section 2(28).

Section 2(28): “Misleading advertisement” in relation to any product or service means an advertisement that— (i) falsely describes such product or service; or (ii) gives a false guarantee to or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or (iii) conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or (iv) deliberately conceals essential information.

The new guidelines touch upon each sub-section of section 2(28) and provide further definitions to include conditions for non-misleading and valid advertisements, definitions for bait and free-claim advertisements, and the complete ban on surrogate/indirect advertisements.

 

Salient Features  

 

Bait Advertising  

An advertisement in which goods, products or services are offered for sale at a low price to attract consumers. The guidelines lay down that:

  • The ad should not entice consumers to buy the goods or services without a reasonable prospect of selling them at a price offered in the advertisement.
  • There should be an adequate supply of the advertised goods or services to meet the demand created as a result of the advertisement.
  • The advertisement should state that the stock is limited; if the ad is to assess the demand, the same should be stated, and it should not omit restrictions regarding the availability of goods or services.

 

Free Claim Advertisement 

The advertisement should make clear the extent of commitment that a consumer shall make to take advantage of a free offer and should not use the term “free trial” to describe an offer that promises to pay the money back to the consumer in case of non-satisfaction if it requires the consumer to make a non-refundable purchase. Free claims should not be made in the advertisement –

  • If the consumers have to pay anything other than the unavoidable cost of responding to the ad or packing, handling or administration of free goods or services or if the price has been increased (except where such increase results from factors unrelated to the cost of promotion) or when the quality or quantity of goods or services has been reduced;
  • If an element of the package is included in the price, it should not be advertised as free.

 

Advertisements Targeting Children

In addition to taking measures to protect the general public from being misled, the CCPA has also laid down measures to protect the sensitive and impressionable minds of the younger generations.

  • It provides that advertisements that target or address children shall not condone or encourage activities that are dangerous for children or take advantage of their inexperience, and/or encourages practices that are detrimental to children’s wellbeing, etc.;
  • Advertisements should not be such as to develop negative body image in children or give any impression that such goods, product or service is better than the natural or traditional food which children may be consuming.
  • Advertisement for junk foods, including chips, carbonated beverages and such other snacks and drinks, should not be advertised during a program meant for children or on a channel meant exclusively for children.
  • The Guidelines also prohibit advertisers from featuring children and personalities from sports, music or cinema for products requiring  a health warning or for products children cannot purchase

 

Due Diligence Endorsers

The guidelines clearly state that the endorsements should reflect the genuine, reasonably current opinion of the endorser regarding their representation. Such endorsement must be based on adequate information or experience with the goods or services and must not be deceptive. Foreign professionals are barred from making endorsements in all circumstances where Indian professionals are barred.

If a connection between the trader/manufacturer and the endorser exists, such connection should be disclosed if such information is likely to affect the value or credibility of the endorsement and the audience does not reasonably expect the link.

 

Disclaimers 

While laying down provisions for disclaimers in advertisements, the Guidelines state that a disclaimer may expand or clarify the main offer but cannot contradict or hide the material claim made in the advertisement or attempt to correct a misleading claim made in the ad. Further, it provides that a disclaimer should be in the same language and font as the claim made in the advertisement and that the placement of the disclaimer shall be at a prominent and visible place on the packaging (ideally be on the same panel). Also, if the claim is presented as a voiceover, the disclaimer shall be displayed in sync with the voiceover and at the same speed as the original claim made in the advertisement.

Apart from the features mentioned above, the guidelines also stipulate specific duties on the manufacturer, service provider, advertiser, or advertising agency to ensure compliance in advertisements, which primarily deals with the veracity of the information/claims made in the advertisements. These guidelines are to be read as part and parcel of the Consumer Protection Act, 2019, and the non-compliance with the provisions shall also invite penalization as provided in section 21 of the Act.

These guidelines will also apply to government advertisements issued by PSUs engaged in providing consumer services along with those issued by private agencies. Moreover, the advertising guidelines for self-regulation issued by the Advertising Standards Council of India (ASCI) will also apply simultaneously.

 

Conclusion 

In the last few years, the regulatory bodies have undertaken many reformations and measures to control how and what is advertised. As our country is moving towards digitization, the need of the hour is to closely monitor the content that is made available to the public, mainly on online social media platforms. The guidelines intend to protect the interests of consumers by introducing more transparency and coherence in the way advertisements are published so that consumers can make informed decisions.

 

 

You may read our blog post detailing surrogate advertising and its enforceability for a deeper understanding of the issues.  

Image Credits: Photo by Dennis Maliepaard on Unsplash

The guidelines also stipulate specific duties on the manufacturer, service provider, advertiser, or advertising agency to ensure compliance in advertisements, which primarily deals with the veracity of the information/claims made in the advertisements. These guidelines are to be read as part and parcel of the Consumer Protection Act, 2019, and the non-compliance with the provisions shall also invite penalization as provided in Section 21 of the Act.

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Revised Guidelines and Standards for Charging Infrastructure for Electric Vehicles: An Analysis

To promote e-mobility in India, the Ministry of Power, on 14th January 2022, introduced the revised consolidated Guidelines & Standards for Charging Infrastructure for Electric Vehicles (hereinafter, the Guidelines).[1] The Guidelines play a pertinent role in facilitating the e-mobility transition in India by increasing the affordability, accessibility, and reliability of the charging infrastructure. These guidelines are comprehensive as they deal with issues ranging from public charging stations to the tariff for the supply of electricity.[2] This article aims to study the provisions under the recent Guidelines, analyse the same, and delve into the suggestions for their effective implementation.

Exploring the Contours of the Electric Vehicle Infrastructure Guidelines

 

The Guidelines allow individuals to charge the Electric Vehicles (hereinafter, “EV”) at their residences and places of work with the help of their existing electricity connections.[3]  A private entity is free to set up a public charging station till the time it complies with the standards and protocols laid down by the Ministry of Power, Bureau of Energy Efficiency and Central Electricity Authority (CEA) from time to time.

The government, through the new Guidelines, aims to establish a grid of 3x3km for the EVs.[4] On the highways, a charging station would be available within every twenty-five kilometres. These charging stations would be present on both sides of the highways. To facilitate this goal, the government may resort to the installation of public charging stations at the existing outlets of the oil marketing companies.[5] It is interesting to note that the Guidelines also target heavy-duty EVs such as trucks and buses. A separate list of compliances, such as the requirement of at least two chargers of a minimum 100 kW (with 200-1000 V) each, has been specified for the long-distance and heavy-duty EVs.[6]

Under the Guidelines, the public charging stations can apply for electricity connection and the distribution licensee would provide the same as per the timelines provided under the Electricity (Rights of the Consumers) Rules, 2020.[7]  The public charging stations set up in metro cities would be able to have connectivity within the seven days of applying.[8] The deadline extends to 15 days in the case of other municipal areas and 30 days in rural areas. The Guidelines also present the option of procuring power from any power generating company through open access.

To provide for advanced remote or online booking of charging slots, it is necessary for the public charging station to have a tie-up with at least a single network service provider. This would allow the EV owners to have the requisite information pertaining to various aspects such as a number of the installed and available chargers, location, and applicable service charges. While acknowledging that few public charging stations would be set up for internal use of an entity, the Guidelines additionally mention that no network service provider tie-ups are needed in that instance.

One of the key features of these Guidelines is that they provide for the single part tariff for the electric supply to the public charging stations, which would not extend the average cost of the supply until March 31st, 2025.[9] A separate meeting arrangement would be provided for the public charging stations, as opposed to the domestic charging, so as to ensure that the consumption is recorded and billed in line with the applicable tariffs. To further reduce the cost, the government has provided electricity at concessional rates along with the subsidies to set up the Public Charging Stations. Moreover, the state governments would be fixing the ceiling of service charges, which are to be levied on these charging stations.[10]  The Guidelines, inter alia, provide that the DISCOMs may leverage on the funding from the Revamped Distribution Sector Scheme for the augmentation of the general upstream network, which is necessitated due to the upcoming charging infrastructure. It specifies that the “cost of such works carried out by DISCOMs with the financial assistance from the Government of India under the revamped scheme should not be charged from the consumers for the Public Charging Stations for EVs.”[11]

The recent guidelines play an instrumental role in ensuring the process of charging is made affordable for EV users. The public charging stations would be set up on a revenue-sharing basis at the fixed rate of Rs 1/kWh.[12] More and more public charging systems would be set up by using the land available with the government and private entities.

It is pertinent to note that a phased manner would be followed with respect to the rolling out process. Phase I, which ranges from the first to third year, would target all the megacities having a population of over four million. In this phase, all the existing expressways and important highways linked with the above megacities would also be included. Thereafter, under the second phase (which would range from the third to the fifth year) would cover certain big cities, state capitals, and headquarters of the Union territories.[13]

Moreover, these Guidelines are made technology agnostic because they provide for prevailing international charging standards available in the market as well as new Indian charging standards.

The Bureau of Energy Efficiency would be the central nodal agency for the rollout of the EV public charging infrastructure.[14] Moreover, every state government can have its own nodal agency for the purposes of setting up the requisite infrastructure.

 

Requisites of Electric Vehicle Charging Stations

 

The Guidelines can be perceived as a massive step forward to promote the adoption of EVs in India by increasing accessibility and affordability. They should be lauded for introducing a reliable economically viable and coordinated system to regulate the charging of such vehicles. They further tend to address the long-existing lacunae, which persisted with respect to the applicable tariffs.

In India, one of the reasons as to why the adoption of EVs has been quite staggered is because, according to the data with the Ministry of Road Transport and Highways (“MORTH”), for 9,47,876 registered cars, only 1028 public charging stations are there.[15] This was observed by the Bureau of Energy Efficiency. Therefore, from the above figure, it could be clearly observed that the country does not have the necessary infrastructure to cater to the growing demand for EVs. These guidelines have identified the existing problem and provided appropriate solutions for the same. As discussed above, apart from the installation of an adequate number of public charging stations, the individual consumers will also have the option of charging the EVs at their homes or places of work. The Guidelines state that under private charging, the batteries of the privately owned cars are charged through the domestic charging points and the billing is done via the home or domestic metering.  On the other hand, for charging outside the home premises, the power needs to be billed and payment needs to be collected. Moreover, the power drawn from these chargers is regulated from time to time.

The provision of private charging, in addition to public charging, would overall result in consumer welfare as now the private users do not have to rely completely on the government for the charging process. They can bridge the implementation gap by setting up their own charging stations. Further, the government has also been taking the right steps to bring down the price of electric vehicles by providing subsidies. At present, the price of the majority of Electric two-wheelers and three-wheelers are almost equivalent to their petrol counterparts.[16]

India has set the target of meeting 30% EV sales penetration for private cars, 70% for commercial vehicles, 80% for two and three-wheelers, and 40% for buses by 2030.[17] However, earlier this goal seemed unachievable due to the high costs associated with EVs and lack of the required infrastructure for public charging stations. The new Guidelines strive to make certain that the country is back on the track to meet the above-mentioned objective. This has been possible due to the subsidies that have been provided by the government. It is predicted that the sale of the total electric vehicles in India would reach approximately 10 lakh units. This number is equal to the units sold collectively in the last fifteen years.[18] Apart from this, the government has introduced a portal called e-Amrit to make India a more conducive place for the manufacture and adoption of EVs.[19]

Furthermore, the Guidelines aim to strike a balance between accessibility and safety. By allowing private entities to set up charging stations, the government has not only made the charging of EVs more feasible for individuals but has also reduced its burden of being the sole provider of the charging stations.  Annexure 3 lay down a list of requirements to ensure that the safety protocols have been followed[20]

Instrumental Role Played by EV Charging Infrastructure

 

The Guidelines would play an instrumental role in transforming and shaping the future of the use of EVs in India. They have efficiently recognized the existing issues and have formulated promising ways for addressing the same. Not only would they help in promoting energy security, but would also help in the reduction of emissions that are harmful to the environment which is a major concern at the global level. This would enable the country to take a step forward in the direction of its concern to save the environment and sustainable development.

However, the success of these Guidelines entirely depends on their effective implementation. Therefore, both central and state governments shall play a crucial role in its success in introducing a user-friendly EV policy. It is suggested that the Central Government or the Central Nodal Agency should keep a check on the performance of all the States with regards to the Guidelines. It should ensure that the development is taking place in a continuous and coordinated manner. Moreover, since the private individuals and entities for public use are free to set up their own charging stations, measures should be taken to ensure that the safety standards are strictly being met.

References:

[1] https://powermin.gov.in/sites/default/files/webform/notices/Final_Consolidated_EVCI_Guidelines_January_2022_with_ANNEXURES.pdf

[2] https://www.business-standard.com/article/economy-policy/power-ministry-revises-norms-for-pro-actively-setting-up-ev-charing-infra-122011500778_1.html

[3] https://auto.economictimes.indiatimes.com/news/industry/guidelines-and-standards-for-ev-public-charging-stations-released-owners-can-charge-at-home-or-office-too/88941883

[4] https://economictimes.indiatimes.com/industry/renewables/what-budget-2022-can-do-to-power-up-ev-charging-scene/articleshow/89069935.cms

[5] https://mercomindia.com/ministry-of-power-guidelines-ev-charging-infrastructure/#:~:text=As%20per%20the%20new%20guidelines%2C%20public%20charging%20stations%20will%20be,30%20days%20in%20rural%20areas.

[6] https://powermin.gov.in/sites/default/files/webform/notices/Final_Consolidated_EVCI_Guidelines_January_2022_with_ANNEXURES.pdf.

[7] https://powermin.gov.in/sites/default/files/uploads/Consumers_Rules_2020.pdf

[8] https://www.news18.com/news/auto/government-allows-ev-owners-to-charge-cars-using-existing-electricity-connections-4666697.html

[9] https://www.thehindu.com/news/national/revised-guidelines-for-charging-infrastructure-for-electric-vehicles-issued/article38275645.ece

[10] https://indiaesa.info/resources/ev-101/3924-public-ev-charging-infrastructure-in-india.

[11] https://powermin.gov.in/sites/default/files/webform/notices/Final_Consolidated_EVCI_Guidelines_January_2022_with_ANNEXURES.pdf

[12] https://www.freepressjournal.in/india/owners-of-evs-can-now-charge-them-at-their-residenceoffices-using-their-existing-electricity-connections

[13] https://economictimes.indiatimes.com/industry/renewables/govt-land-to-ev-public-charging-stations-through-bidding/articleshow/88917938.cms?from=mdr

[14] https://beeindia.gov.in/content/e-mobility

[15] https://www.hindustantimes.com/india-news/govt-allows-use-of-existing-power-connections-to-charge-evs-101642392095051.html

[16] https://www.hindustantimes.com/india-news/govt-allows-use-of-existing-power-connections-to-charge-evs-101642392095051.html.

[17] https://www.hindustantimes.com/india-news/budget-2022-special-mobility-zones-for-evs-soon-101643699503104.html#:~:text=her%20budget%20speech.-,India%20has%20set%20a%20target%20of%2030%25%20EV%20sales%20penetration,and%20three%2Dwheelers%20by%202030.

[18] https://www.news18.com/news/auto/electric-vehicles-sales-in-india-expected-to-touch-10-lakh-units-in-2022-smev-4630505.html.

[19] https://www.india.gov.in/spotlight/e-amrit-accelerated-e-mobility-revolution-indias-transportation#:~:text=e%2DAMRIT%20is%20a%20one,%2C%20charging%20stations%2C%20business%20requirements.

[20] https://powermin.gov.in/sites/default/files/webform/notices/Final_Consolidated_EVCI_Guidelines_January_2022_with_ANNEXURES.pdf.

Image Credits: Image by Photo by Michael Marais on Unsplash

The success of these Guidelines entirely depends on their effective implementation. Therefore, both central and state governments shall play a crucial role in its success in introducing a user-friendly EV policy. It is suggested that the Central Government or the Central Nodal Agency should keep a check on the performance of all the States with regards to the Guidelines. It should ensure that the development is taking place in a continuous and coordinated manner.

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The Concussion Conundrum

  • 08 December, 2020
  • Santosh Vikram Singh

The first T20 International Cricket match between Australia Vs. India played on December 4, 2020, at Manuka Oval, Canberra witnessed an unusual controversy. During the inning break, on-field cameras captured the animated discussion between the match referee David Boon and the Australian head coach Justin Langer. The issue was centered on the decision of the match referee about concussion replacement player Yuzvendra Chahal for concussed player Ravindra Jadeja.

During the last over of India’s inning, a beaming delivery of Mitchell Starc hit Ravindra Jadeja on his helmet. Though Jadeja went on to complete that over without any complaint or call for help, later reported dizziness in the dressing room. As per the news reports, the team medics after examining the player suspected of concussion hence sought concussion replacement.

The team medics seem to have duly followed the ICC Rules on their part by completing the required formalities. Match Referee, David Boon who approved India’s concussion substitute had an animated conversation with Justin Langer followed by outbursts from certain Australian players and the decision being questioned by Cricket experts and scrutinized by the media.

ICC Rules & Guidelines on Concussion Replacement:

Well, to lay rest to these speculations and determine if the Indian team subverted the rules, it is important to look at the International Cricket Council (ICC) Rules and Guidelines concerning concussion replacement. The concussion rules were implemented to restrict a player from being unduly exposed to health risks and also to save a team from being disadvantaged if their player is concussed.

The concussion replacement issue is dealt with under Rule 1.2.7 of the ICC Men’s Twenty20 International Playing Conditions which was introduced in July 2019. The Rules allow a ‘like-for-like’ replacement in case a player is concussed, i.e., an injury is caused to the head or neck during the course of the match and the incident had occurred within the playing area.

The team medical representative is responsible for diagnosing the player and submitting the request for concussion replacement to the Match Referee. Rules 1.2.7.1.3.4 mandate that the concussion replacement request shall be a like-for-like for the player who has sustained the concussion or suspected concussion.

As per Rule 1.2.7.3, the ICC Match Referee should ordinarily approve a Concussion Replacement Request if the replacement is a like-for-like player whose inclusion will not excessively advantage his team for the remainder of the match. Further, the ICC Match Referee should consider the likely role the concussed player would have played during the remainder of the match, and the normal role that would be performed by the nominated Concussion Replacement. The decision of the match referee in this regard is final and cannot be appealed.

Did India and the Match Referee follow the Rules?

Let us analyze the core issues which became the point of discussion and disagreement and caused the stir.

a) Player Assessment

The major issue was that the player was not assessed after he was hit and hence there was a breach of protocol by team India. Let us look at the ICC’s concussion management guidelines and refer to section “Clear and immediate diagnosis of concussion” which reads as:

When should a team doctor/physio run out for an on-field assessment?

  1. If called on by the umpire;
  2. If a player is down and players are calling for assistance;
  3. Immediately, if there is a head knock and the player is unable to resume after 3 to 4 seconds;
  4. If a player calls for a new helmet following a head injury; and
  5. At the end of the over, if the player resumes play after having sustained a blow to the head.

Analyzing, the above guidelines team India does not seem to have breached any protocol as the player was attended and assessed in the dressing room by the team medics immediately after the (final) over in which he was hit, therefore falling under the fifth scenario. Hence, the objection of an unfair advantage being taken solely on this ground cannot be sustained. Moreover, given the medical expertise and sensitive nature of the injury, the opinion of the medics can also not be called into question or be disregarded.

b)  Like-for-like replacement:

The second issue, which caused much furor was whether the replacement player (Yuzvendra Chahal in this case) could be considered a ‘like-for-like’ replacement (Ravindra Jadeja) where Jadeja is considered a bowling all-rounder while Chahal is purely a leg-spinner.

Rules 1.2.7.3 – 1.2.7.5 sets out the guidelines for Match Referee to address the issue of concussion replacement. As per the Rules, the Match Referee should assess the likely role the concussed player would have played during the remainder of the match and the normal role, which would be performed by the nominated replacement. It is not necessary that a player should be a ‘like-for-like’ replacement in terms of ability and standing. Such an interpretation would render the concussion rules infructuous as no two players are alike and no team can be expected to carry a squad containing an exact substitute for each of its players. The assessment is to be done on the basis of the ‘likely role’ to be played.

Moreover, if the Match Referee believes that the inclusion of the replacement would excessively advantage the team, the Match Referee is well within his rights to impose conditions upon the identity and involvement of the Concussion replacement, to neutralize any advantage being accrued. In the instant match, being an all-rounder, Jadeja was likely to complete his bowling quota. Since the replacement happened at the end of the batting innings, Chahal could be considered a ‘like-for-like’ replacement, as he would have played the role of Jadeja, which is to bowl his quota of four overs.

Conclusion:

An in-depth analysis of the ICC Rules & Guidelines and the subject issue of concussion replacement do not hint at any unfair or mala-fide intention neither on the part of the Indian cricket team nor the match referee. Another perspective; had Chahal not bowled the Indian team to victory and bagged the man of the match award, this issue would not have seen the light of the day. The whole matter seems to be no more than a tempest in a teacup.

Image Credits: Photo by Aksh yadav on Unsplash

Had Chahal not bowled the Indian team to victory and bagged the man of the match award, this issue would not have seen the light of the day. The whole matter seems to be no more than a tempest in a teacup.

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