The concept of celebrity endorsement of products and services is widely recognised and has taken on a steep incline in the last decade. Celebrity endorsements have introduced novel aspects to branding strategies adopted by companies worldwide. The role of the endorser is to attract attention to the brand’s voice and often, celebrity endorsements are used so intensively that it can have a psychological effect on consumers and entice them into buying products recommended by their favourite influencers. This phenomenon is largely attributable to the celebrity’s personality and stature being associated with the promoted product, thereby increasing profits for both the business as well as the celebrity. This marketing model has gained prominence in the last few years with the growing prevalence of social media. A good illustrative example is when Tu Face Idibia, a popular musician in Nigeria, endorsed Airtel (a telecommunication service provider), this singular action drummed up significant patronage for Airtel’s products and services.
However, since the infamy faced by Nestlé in India over its Nestlé Maggi brand following the nationwide branding of their noodles line of products, there has been a deeper scrutiny regarding the existing liability for the celebrity endorsers of such products. Companies appear to be taking undue advantage of celebrities who are oblivious to the defects of the goods that they promote. Consequentially, it is the consumer who suffers in the instance where such celebrity-endorsed products do not deliver on the promise or causes loss to them.
In a bid to address this issue, this article will consider the defences available against the liability of celebrity endorsements of defective goods. This article will briefly examine the Maggi case to determine the measures adopted in other jurisdictions and then go on to consider the extent of the existing legislation available to protect consumers under Nigerian Law. Finally, this article will consider the steps that can be taken by endorsers to exclude any potential liability they may face.
- A Mere Art Form?
One popular point of contention in celebrity liability for such endorsements is that these endorsements can be considered as pure art forms much like other advertisements on television. However, this cannot honestly be argued to be the case. This is because the intent behind advertisements and promotional activities is not only to put forth an artistic expression, but is predominantly biased towards driving the consumer base in the direction of the product/ service being endorsed. Hence, the social immunity that art-forms enjoy is not always applicable to these promotional activities.
Furthermore, the endorsers have a personal ethical responsibility to consumers. Endorsers increase the trust and familiarity of the products that a consumer may not otherwise have paid any attention to, thus, leading the customers and fans to place a higher value on such endorsed products. Therefore, there is an onus on these celebrities to pay particular attention to what they endorse rather than assume that they are merely acting as a carrier of information especially when their fan-following are likely to be exposed to mental and physical health hazards from consuming or making use of the products that they have endorsed.
- The Maggi case and lessons from India
There have been several incidents where celebrity endorsement of false claims in support of a brand has been a matter of concern. In Nestle India Limited v. The Food Safety and Standards Authority of India (the Maggi Case), the petitioner, a company, was ordered to stop the manufacturing and distribution of 9 types of noodles manufactured by the company. Tests showed that these noodles contained excessive amounts of the chemical monosodium glutamate (MSG) and lead. There was also alleged mislabelling of the flavour enhancer ‘MSG’. Nestlé has since then removed the claim of “No added MSG”, and the product returned to stores after a court lifted the restriction. Criminal complaints were filed against Bollywood stars like Bachchan, Madhuri Dixit and Preity Zinta for endorsing Maggi.
In the present Indian legal framework, a celebrity can now be held liable for inappropriate advertisements and promotional activities of products that adversely affect the interest of consumers, under the Food Safety and Standards Act, 2006, the Indian Penal Code, 1860 and under the Consumer Protection Act (CPA). Under the CPA, endorsers face steep fines for false or misleading claims, and could be prohibited from appearing in such advertisements for up to three years.
Furthermore, the Advertising Standards Council of India (ASCI) commenced a due diligence service to assess whether claims by celebrities or endorsers in advertisements are ‘false or misleading’. The self-regulatory body has set up a panel of about two dozen executives from stakeholder organisations to keep a check on such claims, in line with the Consumer Protection Act, 2019. The panel includes executives from legal, advertising, talent management and financial services etc. Thus, it is clear that from the Maggi incident, India has taken, and continues to take, proactive measures in order to prevent such situations from reoccurring. These measures by India will compel celebrities to be more prudent when deciding which goods to endorse, and in turn, ensure the safety of its people.
- A brief analysis of measures taken by the United States
Between 1998 and 2002 ex-baseball player Steve Garvey made various statements in US TV “infomercials” promoting weight loss supplement products. The products in question were “Fat Trapper” and “Exercise in a Bottle” produced by Enforma Natural Products. Garvey was paid an estimated $1,000,000 including repeat fees for his appearances in the infomercials.
Following consumer complaints, the US Federal Trade Commission (FTC) sued Steve Garvey on the basis that his claims made for the products in question during the infomercials were without foundation and seriously misleading. Furthermore, they alleged that as a celebrity endorser, he was a direct participant in the deceptive advertising and therefore could be held liable for any false statements made during the advertisement. The courts ruled in favour of Garvey, stating that he could not be held liable as a direct participant because he did not have actual knowledge of any material misrepresentations and he was not recklessly indifferent to the truth or falsity of any representation. However, Enforma agreed to pay $10 million in consumer redress to settle FTC charges against the company.
This case served to convey the seriousness with which the FTC takes on the issue of liability of celebrities who endorse defective products. Furthermore, the FTC made amendments to its Guides Concerning the Use of Endorsements and Testimonials in Advertising in 2009, giving consumers the right to hold celebrities liable in cases of deceptive advertisements. The guidelines now compel the celebrities to investigate the products first and then make a testimonial.
- The scope of protection of consumers under Nigerian law
Based on the few case studies emanating from other jurisdictions it is clear that other jurisdictions have taken strides to address the issue of celebrity endorsement of defective goods by introducing legislation and creating review panels to protect consumers.
In Nigeria, the law which regulates the welfare of consumers is the Federal Competition and Consumer Protection Act, 2019. The Act mandates the Commission to administer the provisions of the Act as well as set up the Competition and Consumer Protection Tribunal to adjudicate over conduct prohibited by the Act and exercise jurisdiction in accordance with the Act. This law aims to promote and maintain competitive markets in the Nigerian economy, promote economic efficiency and protect and promote the interests and welfare of consumers. The Act applies to all undertakings and all commercial activities within, or having effect within Nigeria.
The Act provides that a trade description is applied to a good if it is contained in any “advertisement…or other commercial communication on the basis of which a consumer may request or order the goods”. The Act further provides that an undertaking shall not knowingly apply to any goods a trade description that is likely to mislead consumers as to any matter implied or expressed in that trade description. It provides that a consumer may seek to enforce any right under the Act, a transaction or agreement, or otherwise resolve any dispute with an undertaking that supplied the goods or services to the consumer by-
(a) referring the matter directly to the undertaking that supplied the goods or services:
(b) referring the matter to the applicable industry sector regulator with jurisdiction, if the undertaking is subject to the jurisdiction of the regulator; or
(c) filing a complaint directly with the Commission.
Brand promoters making representations to the public that turn out to be at variance to what they represented, shall be held liable for misrepresentation.
Furthermore, under both the Nigerian Criminal and Penal Codes, whoever induces another to do what they would not have willfully done is said to have committed cheating if such inducement results in the loss of pecuniary or proprietary rights.
Thus, while there are laws in place to protect consumers, such laws relating to misleading advertisements are in their infancy as none define the extent of the celebrity’s liability in a case where they endorse defective goods.
The misrepresentation of consumable products should be taken very seriously, and the present statutory provisions under Nigerian laws are not sufficient to deter producers and advertisers from employing public figures in misleading endorsements. The skyrocketing popularity of celebrity endorsements together with the prevalence of counterfeit goods in Nigeria only spells disaster for many consumers. Thus, while the Federal Competition and Consumer Protection Act has provisions in place to ensure the welfare of consumers, there specifically needs to be provisions which address the liability of celebrities such as the provisions stipulating the penalties for same under the Indian Consumer Protection Act in order to effectively prevent cases of misleading endorsements, and thus, minimise any potential harm which could be occasioned to the consumer.
Furthermore, such a statute would foster a sense of responsibility among celebrities and make them more prudent when accepting offers of brand endorsements. Although it is not always possible for celebrities to understand the complex structures of a product or to check the quality of the products personally, due diligence on behalf of the celebrity will be required.
In addition, it would be advisable for celebrities negotiating such contracts for brand endorsements to include an indemnity clause. This may serve to limit or protect the celebrity from liability if a third-party or third entity is harmed.
In conclusion, it is clear that the laws relating to misleading advertisements in Nigeria are in their infancy as none define the extent of the celebrity’s liability in a case where they endorse defective goods. While there are obvious economic advantages in the advertising landscape that a celebrity can offer, it is advisable that such celebrity adopt precautionary measures to avoid legal liability by ensuring that liability exclusion clauses are included in any contract for the endorsement of a product.
An exclusion or limitation clause in a contract is a condition, which aims to preclude one of the parties from accountability or circumscribes the citizen’s liability to exact listed terms, conditions, or circumstances. These could be inserted into a contract to keep private citizens/customers protected from lawsuits for damages, loss, negligence, or non-performance of a contractual or legal obligation.
For an exclusion or limitation clause to be effective, it must pass at least these tests:
- it must have been incorporated into the agreement;
- its wording must cover the liability in question;
- it must not be prohibited by statute or other law
The incorporation of an exclusion/limitation clause in an endorsement contract will serve to protect the reputation and integrity of a celebrity, and consequently deter any potential damage to their persona resulting from the endorsement of a defective good. The essence of this clause will further serve as a vital tool and exemption in allocating the risk of contracts between the parties to ensure that the celebrity is not held liable for any defect suffered by the customer over the use of the product or services endorsed and advertised by the celebrity.
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 Ayomide O. Tayo, “Artistes grab new endorsement deals” available at https://www.pulse.ng/entertainment/celebrities/2face-idibia-patoranking-artistes-grab-new-endorsement-deal/j04msf5 accessed on 5th April 2022.
 M/S Nestle India Limited v. The Food Safety and Standards Authority of India, W.P. (L) No. 1688 of 2015.
 Entertainment desk, “Nestle India to support Maggi celebrity endorsers” available at https://tribune.com.pk/story/898890/nestle-india-to-support-maggi-celebrity-endorsers accessed on 29th March 2022.
 ET Bureau, “ Nestle India to contest fine in Noodle case” available at https://economictimes.indiatimes.com/industry/cons-products/fmcg/nestle-india-to-contest-fine-in-maggi-noodles-case/articleshow/71073426.cms?from=mdr accessed on 17th March 2022.
 Section 53, The Food Safety And Standards Act, 2006 available at https://www.indiacode.nic.in/bitstream/123456789/7800/1/200634_food_safety_and_standards_act%2C_2006.pdf accessed on 7th April 2022.
 Section 272 and 273, Indian Penal Code, 1860 (Act no. 45 of Year 1860) available at https://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20Penal%20Code,%201860 accessed on 7th April 2022.
 Section 21, Consumer Protection Act, 2019 (Act no. 35 of 2019) available at https://egazette.nic.in/WriteReadData/2019/210422.pdf accessed on 7th April 2022.
 Ibid, Section 21(3).
 Ratna Bhushan, “Consumer protection initiative: Endorsers’ claims to go through a due diligence process” available at https://economictimes.indiatimes.com/industry/services/advertising/consumer-protection-initiative-endorsers-claims-to-go-through-a-due-diligence-process/articleshow/90109767.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst accessed on 29th March 2022.
 Osborne Clarke, “US District court ruling on celebrity endorsement liability” available at https://marketinglaw.osborneclarke.com/marketing-techniques/us-district-court-ruling-on-celebrity-endorsement-liability/ accessed on 29th March 2022.
 Ramesh Vaidyanathan, “Maggi noodles controversy: are celebrities liable for alleged lapses of the manufacturer ?” available at https://economictimes.indiatimes.com/blogs/et-commentary/maggi-noodles-controversy-are-celebrities-liable-for-alleged-lapses-of-the-manufacturer/ accessed on 2nd March 2022.
 “Guides Concerning the Use of Endorsement and Testimonials in Advertising” available at https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf accessed on 2nd March 2022.
 Federal Competition and Consumer Protection Act, 2018.
 Section 116(1)(c).
 Section 116(2).
 Section 146.
 Section 140
 See Section 320 1(b) of Penal Code and Section 421 of the Criminal Code.
 Beverly Whittaker and Beverly Flynn “Limiting liability in commercial contracts” available at https://www.stevens-bolton.com/site/insights/briefing-notes/limiting-liability-in-commercial-contracts accessed on 10th August 2022.