MUMBAI: In a rare court action against an ad, the Bombay high court on Friday pulled two of Amul’s icecream commericals off air. The HC held that a fundamental right to free speech cannot be abused to malign, discredit or belittle a rival manufacturer’s product by a negative campaign as was done by Amul.
Hindustan UnileverBSE -1.09 % Ltd, a fast moving consumer goods giant, had moved the HC with a plea for damages worth Rs 10 crore and to stop the telecast of the two Amul commercials— HUL’s contention was that one of the ads asks viewers not to eat products that contain vanaspati oil, thus disparaging its Kwality Wall’s Frozen Desserts which contains vegetable oil.
Justice S J Kathawalla declined a plea by counsel for Gujarat Cooperative Milk Marketing Federation Ltd Ashish Kamat to stay the ban on the telecast after HULBSE -1.09 % counsel Virag Tulzapurkar opposed it saying there was no bar on Amul airing other ads which which were not derogatory.
The court held that the Amul “knowingly denigrated” an entire category of frozen desserts, thereby affecting HUL, which is a market leader in those very frozen desserts. The judge, after a lengthy hearing where Ravi Kadam for Amul, Tulzapurkar and Biren Saraf for HUL launched into a heated discourse on the definition of ‘vanaspati’, free speech, rights of advertisers and the intent of the ice-cream commercial, held that it was “not a case of fair comparison’’. Totally different features were compared in the ad, said the court. “Milk is compared with vanaspati.’’
Disagreeing with the Amul arguments, the court held that HUL cannot be accused of analyzing the impugned TVCs frame by frame as the whole TVC, voiceover along with visual, intentionally conveys that large quantities of vanaspati goes into Frozen Desserts. No justification was given by Amul for the visual impact of the ad and why, originally, only the term vanaspati had been used, the court said.
Gujarat Cooperative Milk Marketing Federation Ltd, which makes Amul ice creams, said the ad doesn’t denigrate HUL’s frozen desserts, but that it merely informed consumers that frozen desserts contain vanaspati tel—vegetable oil as defined even by the Oxford dictionary.
“Once HUL says vegetable oil is healthy, then the ad cannot be said to be disparaging,’’ was the Amul argument. “We are entitled to show the difference between ice cream and frozen dessert. Ours is an ice cream made only of milk and there is a frozen dessert which also contains vegetable oil,’’ Kadam had argued. But Saraf, in a rejoinder, said that “in the pretense of educating the public, Amul is indulging in a false and vicious campaign against HUL’s Wall’s.”
After viewing the ad and its contents as a whole the court said it has become “crystal clear” that the ads were aired with the sole intention of disparaging the entire category of frozen desserts. The repeated airing of the ad is confusing the consumer and disseminating incorrect information. And thus HUL was entitled to the relief it is seeking to take the Amul ad off air.
Reacting to the court order, Sudhir Sitapati, executive director-refreshments, HUL, said, “We are pleased that the Bombay HC while injuncting Amul’s advertisement has agreed with HUL’s contention that Amul’s advertisement is false, misleading consumers and disparages Frozen Desserts. Kwality Walls products are made with milk/milk solids and do not contain vanaspati. In fact, our Frozen Dessert products use milk without cholesterol to offer healthy and exciting choices to consumers.”