Patanjali chyawanprash ad row: Disparaging rival’s product completely impermissible, says Delhi HC

In its advertisement, Patanjali had cautioned consumers against buying chyawanprash which possess 41 Ayurvedic herbs—a fact highlighted by Dabur while promoting its product.

The Delhi High Court pulled up the FMCG company headed by Ramdev (inset) and temporarily restrained it from issuing disparaging commercials | X

New Delhi: On Thursday, the Delhi High Court pulled up Ramdev’s Patanjali for its “disparaging” or discrediting advertisements and temporarily restrained the ayurveda company from running such advertisements against Dabur’s Chyawanprash.

While noting that it could lead to a situation where Dabur suffers from irreparable loss, including loss of reputation, the court also directed Patanjali to delete the problematic lines from the advertisements.

Essentially, the case originated from Patanjali’s commercial pertaining to its product ‘Patanjali Special Chyawanprash’, both on television and in print, wherein it had been purportedly showing Dabur’s product, and all other chyawanprash products in general, in a negative light.

In the advertisement, Patanjali had said how will persons who have no knowledge of the Ayurveda, or Vedas, prepare an “original” chyawanprash. It had also cautioned consumers against buying chyawanprash which possess 41 Ayurvedic herbs—a fact highlighted by Dabur while promoting its chyawanprash.

Terming the present situation as a “clear case of disparagement”, the court said that an advertisement cannot claim that a competitor’s goods are bad, undesirable or inferior. The subtle distinction between claiming one’s goods as “superior”, and another’s goods to be inferior to one’s own, has to be borne in mind, it said.

The ruling is one-of-a-kind as it lays down markers for the future of comparative advertising in the country, and regulates disparaging or denigrating commercials that often show competitor products in a negative light.

Why ad was found ‘disparaging’

Emphasising that misrepresentation and untruth in advertisements is “impermissible”, the court said that an advertisement cannot convey an overall misleading message, if seen from the consumer’s viewpoint.

The law laid down by the Supreme Court in 2006 in the Godrej Sara Lee Ltd. vs. Reckitt Benckiser India Ltd. also referred to the “cardinal principle” that an advertiser has a right to boast of its technological superiority, while comparing products with competitors. However, it cannot disparage the goods of the competitor, by engaging in an “insinuating” or negative campaign against them.

Citing the Code for Self Regulation of Advertising Conduct, which although not binding, states that advertisements must be truthful in their claims, comparisons and descriptions, the court said that it is important for ads to not distort facts, or mislead consumers.

“Extolling of one’s positive features is permissible and some element of hyperbole and untruth has been accepted to be inherent in puffery. However, denigration of a competitor’s product is completely impermissible,” the court said.

Carving out a “delicate distinction” between saying one’s goods are better than another, and the other’s goods are inferior that one’s own, must be adhered to, the court said. “What matters is the impression that the advertisement or commercial registers in the viewers mind,” it said, making it clear that a competitor’s products cannot be called as “undesirable or inferior”.

Through a 62-page ruling, a bench of Justice Mini Pushkarna, said that although it is permissible to say that one’s advertised product is superior to competitor’s, it is not acceptable to “attribute this superiority to some failing, or fault, in the product of the competitor”.

In its judgment, the court also said that advertising has been used as a tool by manufacturers and service providers to take their goods and services to the masses. It also added that advertising assumes even more significance in a competitive market space, where companies indulge in comparative advertising, to capture a higher market share.

Are such advertisements allowed?

Comparative advertising advocates for the superiority of one’s goods and services over competitors to influence the public. It entails highlighting differences between two products in such a way that it portrays the competitor’s product in a bad or negative light.

Although not expressly forbidden under Indian law, there are some safeguards that regulate such advertisements. The interests of the consumer are paramount, the court said, adding that as long as manufacturers or companies use their competitor’s mark or service, in a fair, honest and truthful way, there is no restriction on comparative advertising.

The HC also emphasised that under Article 19 (1) (a) the Constitution, which protects freedom of speech and expression, commercial speech, which includes advertisements, is also covered.

“Courts have concluded that as commercial speech involves both, the advertiser’s right to disseminate information and the public’s right to receive the same, it is an essential aspect of freedom of speech and expression under Article 19(1)(a),” the HC said.

Contention of the two rivals

Dabur’s case was that the commercial had clearly identified its product and it sought to restrain Patanjali by seeking an interim or temporary injunction from the court.

Usually in Intellectual Property Rights (IPR) cases, remedies are granted in the form of either injunctions, temporarily or permanently, requiring someone to do, or refraining from doing something. Another form of remedy in IP cases is damages, which are usually given to the party whose copyright or trademark is being infringed, or used in an unauthorised manner.

“In so far as serious comparison is concerned, courts have held that it should be truthful and puffery is not a defence. In Dabur judgment, the court has taken it up a notch higher. The test of disparagement and of truthfulness, in the case of medicinal products, is higher and the defence of puffery is impermissible and misleading,” advocate Jawahar Lal, who appeared for Dabur, told ThePrint.

Underlining that all advertisements especially in the case of medicines are infomercials, or informative commercials, Lal said that an untrue statement would compromise or even impair the health of consumers!

Elaborating the concept of “puffery”, Lal said it’s a form of exaggeration, or hyperbole, and hence it is “clearly untrue”. Giving the example of a toothpaste commercial which shows a user’s teeth as completely white and shiny, Lal said in such cases, the consumers do not take such claims literally, since they know it is promotional in nature. “The key distinction lies in whether the average consumer would perceive the same as an exaggeration or truth.”

Dabur’s case was that Patanjali’s advertisement warned consumers to refrain from buying, and settling for products that have 40 herbs.

Emphasising that it’s the market leader possessing a 60-61 percent share in the year 2024, Dabur told the court that it had widely publicised its chyawanprash, as having 40 herbs.

The language of the commercial, specifically the line, ‘Jinko Ayurved aur Vedo ka gyaan nahi, Charak, Sushrut, Dhanvantri aur Chyawanrishi ki Parampara ke anuroop, Original Chyawanprash kaise bana payinge?’ (This roughly translates to how will people who have no knowledge of the Ayurved, or Vedas, prepare an original chyawanprash) came under the lens.

Dabur contended that this conveyed to the audience that other chyawanprash manufacturers, besides Patanjali, do not have the knowledge of ayurveda, or follow the correct tradition, which in turn makes all such other products ordinary or even “fake”.

It also objected to the use of the prefix ‘Special’, while saying that it signalled that all other such products were “ordinary”, albeit in a negative way, to show its product as inferior, below average, or even plain.

Adding the prefix ‘Special’ violates Rule 157(1B) of the Drug Rules, which disallow drug manufacturers from issuing prefixes or suffixes, with the name of any Ayurvedic, Siddha or Unani drug, unless described in the authoritative books, given in the First Schedule of the Act.

Notably, Dabur also argued that an average person would necessarily be influenced by Ramdev, who is an acknowledged yoga and vedic expert, when he calls his product special, and others as ordinary.

In its defence, Patanjali argued that Dabur cannot say that it lacked the necessary knowledge, and the technical know-how to prepare chyawanprash–a product that has been classified as an ayurvedic medicine under Section 3(a) of the Drugs and Cosmetics Act.

The section defines “Ayurvedic, Siddha or Unani drug” to include “all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, and manufactured exclusively in accordance with the formulae described in, the authoritative books of Ayurvedic, Siddha and Unani Tibb systems of medicine”.

Any set of ingredients can be followed to make chyawanprash, Patanjali said, adding that there is a requirement for a manufacturer to first have “knowledge” of Ayurveda or Vedas to make chyawanprash.

(Edited by Tony Rai)