The central consumer protection authority (CCPA) has imposed a ₹1 lakh penalty on United Biscuits Pvt Ltd, formerly known as Pladis India Pvt Ltd, for allegedly misleading consumers by marketing McVitie’s Whole Wheat Marie Biscuits as, 'Whole Wheat' despite the product containing only 19.5% whole wheat flour.
In an order last week, CCPA also directed the company to discontinue the allegedly misleading advertisement with immediate effect across print, electronic and social media. It ordered that all fresh packaging of the product be modified to remove the false and misleading claim.
The order was passed by CCPA chief commissioner Nidhi Khare and commissioner Anupam Mishra. The authority also directed the company to submit a compliance report within 15 days.
CCPA's proceedings followed its suo motu cognisance of an article published by Mint, which referred to a social media video highlighting concerns over food products marketed as 'healthy', 'natural' and 'organic'. The article and video specifically highlighted McVitie’s Whole Wheat Marie Biscuits and the apparent difference between the product's prominent labelling and its ingredient composition.
19.5% Whole Wheat, 52% Maida
A preliminary inquiry by CCPA found that United Biscuits was marketing and selling the product under the brand name 'McVitie’s Whole Wheat Marie Biscuits'.
However, the authority found that the prominent 'whole wheat' representation on the label was inconsistent with the ingredient list printed on the packaging. According to the order, the biscuits contained only 19.5% whole wheat, while 52% of the product comprised maida, or refined wheat flour.
CCPA concluded that the prominent representation could deceive consumers into believing they were purchasing a whole-wheat-based product, when that was not the actual composition.
The matter was subsequently referred to the director general (investigation), CCPA, for detailed investigation.
The investigation found that the manner in which the product was named, depicted, packaged and presented could create the impression that it was predominantly made from whole wheat flour.
CCPA also considered the prominent display of the expression 'wholewheat' along with wheat imagery on the principal display panel. According to the investigation, these elements, coupled with an inconspicuous disclaimer, could influence consumers' understanding of the product's composition.
United Biscuits defended the labelling by arguing that 'McVitie’s Wholewheat Marie' is a registered trademark of United Biscuits (UK) Ltd.
The company contended that the word 'Wholewheat' is being used as part of the brand name and was not intended to represent that the biscuits were made entirely from whole wheat.
It also pointed to a disclaimer on the front of the pack stating that the expression was only a trademark and did not represent the product's true nature.
The company further relied on the Food Safety and Standards (Labelling and Display) Regulations, 2020, arguing that it had disclosed the percentage of whole wheat flour used in the product.
CCPA, however, rejected the defence. The authority held that the existence of a registered trademark did not provide immunity from the provisions of the Consumer Protection Act, 2019 where the representation was capable of misleading consumers.
CCPA observed that trademark protection could not be treated as a licence to make or perpetuate a misleading representation under the guise of a trademark.
The authority also rejected the company's reliance on the disclaimer, holding that a disclaimer could not neutralise a representation that had already created a potentially misleading impression because of its prominence and placement.
CCPA said representations must be assessed from the perspective of a reasonable consumer of average intelligence rather than through a technical interpretation adopted by the advertiser.
During the proceedings, United Biscuits said it is willing to revise the packaging and remove the word 'Wholewheat' from the registered trademark depicted on the pack.
The company also said it would not place fresh orders for packaging material bearing the old branding.
However, it sought a nine-month transition period to use its existing packaging material, arguing that destroying plastic packaging would place an additional burden on the environment.
CCPA did not accept the requested transition period. Instead, it directed the company to ensure that all fresh packaging is modified with effect from the date of the order.
The authority also directed the company to immediately discontinue the false and misleading advertisement across print, electronic and social media.
CCPA concluded that the impugned claims constituted misleading advertisements and unfair trade practices under the Consumer Protection Act, 2019. The authority noted that the product's 19.5% whole wheat content substantially contradicted the principal 'whole wheat' representation on its packaging.
It further rejected the company's argument that there was no intention to deceive consumers, observing that where a representation is capable of creating a false impression, the question of intent does not cure the claim's misleading nature.
CCPA consequently imposed a ₹1 lakh penalty on United Biscuits for indulging in misleading advertisement and unfair trade practice.
Under the final directions, the company has been ordered to immediately discontinue the misleading advertisement, modify all new packaging to remove the allegedly false claim, and submit a compliance report to the CCPA within 15 days.
