15-year-old tagline. Competitor complaint. Court said it's puffery.

Kent RO hits pause on ASCI: A 15-year-old tagline, a competitor’s complaint, and a High Court stay

For over fifteen years, M/s Kent RO Systems Ltd. has told Indian households that its water purifier delivers “sabse shudh paani” — the purest water. The tagline, featuring actress Hema Malini, has been a fixture of television and print advertising since 2007. Then, in May 2023, a competitor — TTK Prestige Limited — filed a complaint with the Advertising Standards Council of India (ASCI). The Council’s Consumer Complaints Council (CCC) upheld the complaint, finding the claim was comparative and unsubstantiated. It ordered Kent to modify or withdraw the advertisement within ten business days.

Kent, which is not a member of ASCI, did not comply. Instead, it moved the Delhi High Court. On 18 January 2024, Justice Prathiba M. Singh granted an interim stay of the ASCI order. The Court found that Kent had made out a prima facie case: the tagline could be puffery, not a factual claim; the complaint came from a rival, not a consumer; and the question of whether ASCI can bind non-members remains unresolved. For now, Kent can keep saying “sabse shudh paani.”

The complaint that started it

On 17 May 2023, TTK Prestige Ltd. approached ASCI’s CCC. Its grievance: Kent’s tagline “Kent deta hai sabse shudh paani” was misleading. According to TTK, the claim was comparative — it implicitly said Kent’s water was purer than every other brand’s — and Kent had provided no substantiation. The CCC agreed. It found the tagline contravened Clauses I.1, I.4 and I.5 of the ASCI Code, which require advertisements to be truthful, not misleading, and to have adequate substantiation for comparative claims. The CCC directed Kent to modify or withdraw the advertisement within ten business days.

Kent did not comply. Instead, on 18 January 2024, it filed an original suit before the Delhi High Court — CS(OS) 44/2024 — seeking a declaration that the ASCI order was invalid and a permanent injunction restraining ASCI from enforcing it. Along with the suit, Kent moved an interim application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, for a temporary stay.

Three arguments, one core question

Kent’s case rested on three main legs. First, jurisdiction: Kent is not a member of ASCI. The ASCI Code is a self-regulatory framework binding only on its members. Kent argued that ASCI cannot exercise jurisdiction over non-members. It cited three decisions — Century Plyboards (India) Ltd. v. Advertising Standards Council of India (MANU/MH/0030/2000), Teleshop Teleshopping v. Advertising Standards Council of India and Another (2015 SCC OnLine Bom 8777), and Dish TV India Limited v. The Advertising Standards Council of India (MANU/DE/3049/2016) — all of which held that ASCI does not have jurisdiction over non-members.

Second, the nature of the tagline: Kent contended that “sabse shudh paani” is puffery — an exaggerated, non-factual boast that no reasonable consumer takes literally. Puffery, Kent argued, is permissible in advertising. It is not a statement of fact that requires substantiation. The tagline had been in use since 2007 without any consumer complaint. The only complaint came from a competitor, which suggested the real motive was competitive rivalry, not consumer protection.

Third, institutional bias: Kent pointed out that TTK Prestige is a member of ASCI. The complaint was adjudicated by a body whose membership includes the complainant’s industry peers. Kent argued that this created a structural conflict of interest, especially in a case involving competitive advertising.

ASCI, represented through counsel, defended its order. It argued that its jurisdiction extends even to non-members, relying on Metro Tyres Ltd. v. The Advertising Standards Council of India & Anr. (2017:DHC:1585), which held that ASCI’s recommendations would be binding on non-members. ASCI also cited a South African Supreme Court of Appeal decision — Advertising Regulatory Board NPC Colgate-Palmolive (Pty) Ltd v. Bliss Brands (Pty) Ltd. ([2022] ZASCA 51) — which held that recommendations of a self-regulatory advertising body can bind non-members under similar circumstances.

On the merits, ASCI maintained that the tagline was a comparative claim, not puffery. It required substantiation, and Kent had provided none. The CCC’s finding, ASCI argued, was correct and should be upheld.

What the Court saw in Kent’s case

Justice Singh began by noting that advertising constitutes commercial speech, which is a recognised aspect of Article 19(1)(a) of the Constitution. Any restraint on such speech must have the authority of law. The Court observed that the tagline had been in continuous use for over fifteen years. No consumer had complained. The only complaint came from a competitor. These facts, the Court said, raised serious questions about whether the ASCI order was justified at the interim stage.

The Court then turned to the law on puffery. It relied on the Division Bench decision of the Delhi High Court in Colgate Palmolive Co. and Ors. v. Hindustan Unilever Ltd. (MANU/DE/4536/2013). That case, which cited the House of Lords’ decision in White v. Mellin (1895) A.C. 154, laid down the following principle: puffery and exaggeration about one’s own goods is permissible, provided there is no denigration of a competitor’s goods. Puffery involves expressing opinions, not statements of fact. It is neither intended as nor taken seriously as a factual representation. Extravagant and exaggerated claims are expected in advertising.

Applying this principle, the Court found that Kent’s tagline — “sabse shudh paani” — could well be puffery. It was a boast about Kent’s own product, not a factual comparison with any specific competitor. The tagline did not name any rival. It did not say “purer than Brand X.” It simply said Kent gives the purest water. That, the Court held, was prima facie permissible puffery.

THE PLAY: If your tagline is a boast about your own product, does not name a competitor, and has been used for years without consumer complaints, it is likely puffery — and a court may protect it from an ASCI order at the interim stage.

The jurisdictional question that won’t go away

The Court also flagged a deeper issue: whether ASCI can bind non-members at all. Justice Singh noted that there are divergent judicial opinions on this point. Three decisions — Century Plyboards, Teleshop Teleshopping, and Dish TV — hold that ASCI does not have jurisdiction over non-members. One decision — Metro Tyres — holds the opposite. The Court observed that this question “deserves to be considered” and may need a definitive ruling. That ruling, if it comes, would have industry-wide implications. If ASCI cannot bind non-members, then its entire enforcement mechanism — which relies on voluntary compliance by members and moral suasion over non-members — would be severely weakened for companies that choose not to join.

The Court also noted an additional issue: whether ASCI’s jurisdiction had been exercised in a case involving competitive advertising. If so, the matter may need to be listed before the Intellectual Property Division of the Delhi High Court. This signals that future ASCI-related disputes involving comparative advertising may be routed to the IP Division, which would affect forum selection strategy for litigants.

The order: stay granted, questions reserved

On 18 January 2024, Justice Singh passed the following order: “Till the next date of hearing, there shall be a stay of order dated 29th December, 2023 passed by the ASCI.” The Court directed Kent to comply with Order XXXIX Rule 3 CPC — which requires the plaintiff to file an affidavit confirming that it has served the order on the defendant — within one week. ASCI was directed to file its reply to the injunction application within four weeks. The matter was listed for further hearing on 17 May 2024.

The stay is interim. It does not decide the merits. But it sends a clear signal: a tagline used for over fifteen years, with no consumer complaints, challenged only by a competitor, is not going to be pulled off the air on an ASCI order without a proper hearing.

What this means for advertisers, founders, and their lawyers

For advocates, this judgment is a reminder that the puffery defence is alive and well in Indian advertising law. The key is to show that the claim is a subjective opinion about one’s own product, not a factual comparison with a competitor. If the tagline does not name a rival, and if it has been used for years without consumer complaints, a court is likely to treat it as puffery.

For CFOs and founders, the takeaway is practical: if you receive an ASCI order and you are not a member of ASCI, you have options. You are not automatically bound. You can challenge the order in court, and you may get an interim stay. But act fast — the ASCI order gives you only ten business days to comply. If you want to fight, you need to file a suit and an interim application before that deadline expires.

For startup founders building a brand: choose your taglines carefully. A claim like “the purest water” is puffery if you are boasting about yourself. But if your advertisement says “purer than Brand X,” you have entered comparative territory, and you will need substantiation. The line between puffery and a factual claim is thin, and ASCI watches it closely.

The larger question — whether ASCI can bind non-members — remains open. Until the Delhi High Court or the Supreme Court resolves it, the balance of power between self-regulatory bodies and non-member companies will be decided case by case, injunction by injunction.

The bottom line: If your tagline is a boast, not a comparison, and you have used it for years without consumer complaints, a court may protect it from an ASCI order — even if you are not a member of ASCI.