Amul granted some relief from Bombay HC, modifies judgment for broadcasting two TV ads

The bench partly allowed the appeal and allowed Amul to use the two TV commercials after it removes portions disparaging rivals like Kwality Wall’s

Kwality amul

According to media reports, the Bombay High Court recently granted relief to Gujarat Co-operative Milk Marketing Federation (GCMMF)-run Amul and allowed it to run two TV advertisements after it removes portions disparaging rivals like Kwality Wall’s for using Vanaspati in their ice creams.

A division bench of Justice BR Gavai and Justice RI Chagla partly allowed the appeal filed by the GCMMF against a judgment of a single bench of Justice SJ Kathawalla as reported earlier, wherein Amul was restricted from broadcasting two TV ads as they were disparaging towards Hindustan Unilever-owned Kwality Wall's, its rival.

In the said judgment that ran into 87 pages, Justice Kathawalla had noted that in 2012-13, Amul started a campaign by distributing pamphlets stating the difference between a frozen dessert and ice cream. These pamphlets state: “Usse real milk wala Amul ice cream khilayein, Vanaspati tel wala nahi”. While frozen desserts contain vegetable oil, ice creams contain dairy fat.

As Justice Kathawalla noted in his judgment, the distinction between ice creams and frozen desserts was made for the first time in 2005 with an amendment to the regulations framed under the Prevention of Food Adulteration Act, 1954.

According to HUL, the two advertisements by Amul disparaged frozen desserts and majority of these frozen desserts are manufactured by HUL, which has 51.3% of the market share. It is shown in the two TV ads that Amul ice creams are manufactured by using 100% milk whereas frozen desserts are manufactured by using Vanaspati. It is the case of HUL that Vanaspati is hydrogenated vegetable oil, which is considered to be unhealthy in the Indian society and it is also considered to be having bad effects effects on the health of consumers. In its suit seeking an injunction against Amul, HUL stated that Vanaspati is not used in the manufacture of frozen desserts by Kwality Wall’s, instead, edible vegetable oil is used. Both frozen desserts desserts and ice creams contain 90% milk, the difference is only with regard to the remaining 10%, HUL argued.

After examining all the facts, the bench said: “It could thus be seen that, even according to the own admission of the Appellant, hydrogenated fat or Vanaspati has harmful effects on the health. If, with this knowledge, the Appellant has aired the impugned advertisement, showing that all the manufacturers of frozen desserts use Vanaspati or Vanaspati tel, there can be no manner of doubt that intent of the advertisement is to show that Frozen Desserts are manufactured by using Vanaspati and that the said products which are manufactured with the use of Vanaspati are dangerous to the health.  We have no manner of doubt, to hold that TVCs have an effect of disparaging the frozen desserts in general and dissuading the class of consumers from using it. As held in catena of cases, Appellant can very well make a false claim to puff up their product. It can also make statements which are not true to its knowledge to show how its product is superior. It can even compare its products with the competitors. However, the Appellant cannot be permitted to air the advertisement which disparages the product of its competitors."

However, the court also found that there was no need to restrain Amul from broadcasting both TVCs entirely - “We are of the view that such a blanket injunction could not have been granted by the learned Single Judge. Perusal of the advertisement would reveal that, entire TVC cannot be said to be of objectionable nature.”  

Thus, the bench partly allowed the appeal and allowed Amul to use the two TV commercials only after the parts disparaging frozen desserts is removed. Other modifications were made to the language used in the judgment.

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