In a case of comparative advertisement, the Delhi High Court ruled that advertisement is a facet of commercial speech which is protected under the Constitution and the same can be restricted only in accordance with law.
“….advertisement is a facet of commercial speech which is protected by Article 19(1)(a) of the Constitution. The same can be restricted only in accordance with law enacted under Article 19(2) of the Constitution. In a democratic country, free flow of commercial information is indispensable and the public has a right to receive the commercial speech”, the Court said.
The Court was considering a suit filed by Horlicks Ltd (“Horlicks”) for disparagement and unfair trade practices against Heinz India Private Limited (“Heinz”) wherein it was alleged by Horlicks that the advertisement by Heinz for its health food drink COMPLAN deliberately disparaged Horlicks health food drink HORLICKS by claiming that one cup (33 grams) of COMPLAN has the same amount of protein as two cups (54 grams) of HORLICKS.
Stating that the concept of ‘per serving’ size is well recognized not only by the industry but also under the law, the Court said “The reason for recommending a ‘per serving’ size by both the parties on their respective packagings is that consumption of any health food drink in excess of the recommended dietary allowance could distort the macro and micro nutritional requirements of a consumer.”
The Court stated that the impugned advertisement seeks only to compare the protein content in the recommended ‘per serving’ sizes of both products which is factually true and not misleading in any way.
It was further observed by the Court that an advertiser is not obliged to compare all parameters and it is open to an advertiser to highlight a special feature/characteristic of his product which would set its product apart from its competitors and make a comparison with other products, as long as it is true.