Advertising: Understanding your rights

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By Antony Mutunga

In the course of our day-to-day activities, we come across a lot of advertisements whether on the Internet, billboards, television or radio. The texts and images used on the advertisements usually entice us to different products and play a big role in our decision on purchases. To quote Kumar and Raju in “The Role of Advertising in Consumer Decision Making – IOSR” (2013), “all advertising seeks to influence the decisions consumers make.”

Among all these images, it is difficult to identify which products are worth it and which are not.

Organisations spend a lot of money advertising, as it has become a powerful tool to attract consumers to products. However, not all organisations advertise their products with the utmost truth as some falsify and use misleading information to attract consumers. This information tends to create a complex problem as people interpret things differently. When an organisation uses false/misleading/deceptive advertising, it tends to affect the consumers’ decisions, causing them to purchase something with less value than they had expected, or, in some instances, something completely different.

False advertising is a tort of publishing, broadcasting, or otherwise publicly distributing an advertisement that contains an untrue, misleading, or deceptive representation or statement, which is made knowingly or recklessly and with the intent to promote the sale of property, goods, or services to the public.

This has become an art for advertising agencies, organisations as well as individuals who have found ways to dupe consumers through various ways. For example, political aspirants usually use misleading agenda to advertise to people their causes and at the same time to increase their individual status; organisations, on the other hand, advertise products that are different from the ones they are offering, or at times they omit some information that would be pertinent to the consumer when making a decision.

As false advertising has the power to deceive consumers to make decisions that they would have otherwise steered clear off of, legislation has been enacted that illegalises it in some countries. However, organisations still mislead people to their products using legal ways that bypass the existing laws or use illegal ways that are unenforceable.

In Kenya, false advertising falls under the Consumer Protection Act Cap 46 (2012), which protects the rights of the consumer. One of the major purposes of the act is protecting consumers from all forms and means of unconscionable, unfair, unreasonable, and unjust or otherwise improper trade practices, including deceptive, misleading, unfair or fraudulent conduct.

Section 12 of the act stipulates that it is an unfair practice for one at any given time to make a false, misleading or deceptive representation. The act goes on to explain further what is allowed and what is not when it comes to product representations and advertising. It summarises what makes up false representation or advertising so as to protect consumers from its adverse effects.

The act goes on to highlight that the following are considered false, misleading or deceptive representations: representations whereby the goods or services have sponsorship, performance, ingredients, benefits, uses or various qualities that they do not actually have – when one advertises that their goods and services, or any part of them are available or can be delivered or performed, when the person making the representation knows or ought to know they are not available or cannot be delivered or performed by a specified time.

This misleading representation mostly occurs when an organisation fails to disclose crucial information to the consumers that would change their decision on the purchases. This is a common form of false advertising that some mobile providers and business people usually use when introducing new products to the market.

Representation that misrepresents or exaggerates the benefits that are likely to flow to a consumer if the consumer helps a person obtain new or potential customers is also considered false advertising. This is popular on the Internet whereby in social media consumers are promised something in return if the achieve a certain target.

The Act also stipulates it is wrong to advertise that a product has a specific price advantage if it does not. This is common in most places, as most shops tend to deceive consumers that they are giving out discounts when in real sense they are selling the goods at the market prices.

The Act has helped the market by making it a little safer as before the consumers were only protected by legislations with most faults being unenforceable. In December 2013, the Kenya Consumers Protection Advisory Committee was established. According to the Act, the committee has the obligation of assisting in the formulation of policies related to consumer protection, accrediting consumer organisations, advising consumers on their rights and responsibilities, investigating complaints and establishing conflict resolution mechanisms, etc.

Consumers who have been duped by false advertising are advised to either report their cases to the committee so they can get justice on their behalf, or sue. If one is found guilty of false advertising, they are liable to a fine not exceeding more than one million shillings or imprisonment for a term of no more than three years or both depending on the courts decision.

However, before it comes to going to the court, it is better for one to be careful and to always be sure that you have all information (facts and figures) before purchasing any product. It is advisable for one to always be on the lookout so as to avoid to be reeled in by enticing images and texts that cause impulsive spending, only to regret afterwards that you acquired something different from what you expected.

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