Misleading or Deceptive Marketing of Dietary Supplements in

Malaysia: The Criminal Law Aspect

Norazlina Bt Abdul Aziz, Farizah Bt Mohamed Isa, Ahmad Shukree Mhd Salle, Mardiah Hayati

Binti Abu Bakar, Hartini Saripan

Law Faculty, Universiti Teknologi MARA, Shah Alam, Selangor, Malaysia

Keywords: Criminal, Deceptive, Dietary supplements, Misleading.

Abstract: One of the effects of globalization is the transformation of many industries from the traditional/conventional

ambiance to a modern and technology-based industry. Among the transformed industry is the food and

pharmaceutical industry which led to the growth of the dietary supplements industry. Dietary supplements are

products that are labelled as dietary supplements and are not represented for use as a conventional food or as

a sole item of a meal or diet. Supplements can be marketed for ingestion in various forms such as capsules,

powder, soft gels, tablets, liquid, teas and many other forms. Although dietary supplements are believed to

have aided in the maintenance of better quality of life, yet the market is flooded with dietary supplements that

are marketed or advertised with deceptive or misleading description. Advertisements in the media, has become

a vital source of information about dietary supplements for consumers. Within this context, the extent to which

the manufacturers of these dietary supplements adhere to the standards and guidelines of good advertising

practices remains relatively unexplored in Malaysia. Where the existing regulatory framework provides for

the control of marketing for pharmaceutical related products, the law is absent in providing the same for food

related products. This paper will look at the criminal aspects of misleading or deceptive marketing of dietary

supplements in relation to the provisions of the Malaysian Penal Code, in particular the offence of cheating;

provided under section 415 and section 418 which describes cheating with knowledge that wrongful loss may

be caused to a person whose interest the offender is bound to protect.

1 INTRODUCTION

There is no doubt that advertisements have become a

very powerful marketing tool. Now and again, it has

been proven that they are indispensable in building

and empowering brands. As such, most if not all

businesses have embraced advertising because

promoting brands have become critical for a business

in a highly competitive commercial environment like

we have today.

A powerful visual advertising presentation can

compel consumers to purchase goods, services and

ideas as a way to achieve an emotional need and

fulfilment. According to Tracy Stefan (2018),

persuasion is the core mission of advertising.

Advertising not only give information about a

product, it also tells you how the product, service or

idea you are considering will improve your life.

Advertising feeds on the concepts of ideology, myth,

art, sexual attraction and religion. Advertising infuses

images and ideas into products and services, just as

the meanings of products and services are infused into

images and ideas.(O’Sullivan, 1998)

It can also be said that advertising has been a

major factor that is driving global consumerism.

Some have even blamed excessive advertising for the

unsustainable consumption patterns in many

developed economies. There seems to be an insatiable

demand for consumer products and a major cause of

this can be said to be because of highly powerful and

persuasive advertising.

There have also been instances where the

advertisements were proven to be outright lies. These

are the kind of advertisements that promises certain

things, either in the description of the product, a

guarantee on the quality of the product or the

properties contained in a certain product that can cure

a certain ailment. In many cases, these promises were

not honoured by the owner or manufacturer of the

product.

This article looks at the law relating to deceptive

or misleading advertisements in the context of

326

Aziz, N., Isa, F., Salleh, A., Bakar, M. and Saripan, H.

Misleading or Deceptive Marketing of Dietary Supplements in Malaysia: The Criminal Law Aspect.

DOI: 10.5220/0010053603260330

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 326-330

ISBN: 978-989-758-482-4

criminal law; with specific reference to the offence of

cheating. The key principle that will be focused here

is the essence of the offence of cheating. The various

elements necessary to constitute the offence as

required under section 415 of the Penal Code, must

be looked at in the relevant context. We shall examine

the position of an advertiser, a seller or a person

making representations about the qualities of their

product as to the extent of their responsibility should

there be any instances of deception. The Penal Code

prescribes sections 415 and 418 in order to deal with

this issue.

2 BLOSSOMING OF DECEPTIVE

MARKETING/ ADVERTISING

Experts have warned that at the rate the rising global

population is consuming, we may soon run out of raw

materials to supply the resources that fuel our

survival. Advertising is highly effective in persuading

change in consumer tastes. That explains why the

advertising industry continues to be a growing global

business.(Ahmad Ibrahim, 2016).

Although many advertisements are made based on

evidence, a big number exaggerates. One can say that

a little bit of exaggeration in some advertisements are

rather harmless; however, these harmless

exaggerations might lead to a confirmation of facts

which could mislead consumers depending on the

product and the context of the advertisement.

Gullible consumers tend to be taken in by these

promises from the advertisements and they ended up

suffering from losses, and even worse, their health

and wellbeing were affected seriously. These

‘gullible’ consumers are easily swayed by claims

made in the advertisements. According to Ahmad

Ibrahim (2016), it is not just the uneducated that fall

prey to such adverts. Even the well-informed are

easily persuaded. Through the creativity of

advertising professionals, most messages appear

believable. Consumers are, therefore, easily

bought.(Ahmad Ibrahim, 2016)

There have been cases where companies have

been taken to court for misleading claims. Take the

edible oil business for example. Companies are

prohibited from advertising their brands as being

cholesterol free just on account of them not

containing cholesterol. This is because edible oils

taken exceeding a certain amount can raise blood

cholesterol. So, if a company claims its product is

cholesterol free, that is considered misleading and is

liable.

Unfortunately, in Malaysia, such control

mechanisms for advertisements, other than

advertisements for medical products are not very

apparent. Many product claims in advertisements

seem to be misleading. This is especially so in

dietary/health supplements, cosmetic products and

traditional medicines. With sophisticated, borderless

communication, such misleading advertisements

relating to these products are easily spread at an

unbelievable pace. We hear of many such promotions

on television, radio and especially on the internet.

Most of these supplements have not undergone any

clinical trials, but the statements contained in the

advertisements somehow portray it as a cure-all.

The same applies to cosmetic items. The

whitening and slimming products are especially

aggressive in their claims. We have heard of product

recalls where it was discovered that banned and

dangerous substances were used to make their

products effective. Hazardous chemicals have been

detected time and again in such products. These

include steroids and heavy metals, such as mercury.

Such toxic chemicals have long-term chronic ill

effects on health. On most occasions they go

unnoticed as it will only be discovered if someone

makes a report.

There have been suggestions that some companies

selling such products are just marketing businesses.

They do not manufacture the products themselves.

Most of them simply source their products from

wholesale manufacturers and suppliers. Many are

imported.

The problem with this is that such marketing

companies often do not have facilities to undertake

their own quality checks. What they do is repack and

stamp their own brands. There have been cases of the

presence of harmful substances in such products.

Even banned items are known to have resurfaced in

such products. The ones who bear the brunt of such

abuses are the consumers.

In a study conducted by Anis Suhaiza (2010), it

was reported that many consumers felt so strongly

about the potential health benefits of some of the

dietary or health supplement products that they

reported that they would continue to take them even

if they were shown to be ineffective in scientifically

conducted clinical studies. This is also one of the

significant impacts of viral marketing for such

product. The main issue is the widespread of

exaggerated benefits of these products that were not

certified through reliable clinical trials. This creates a

potential threat to the consumer’s safety and may

lower the quality of the product.

Misleading or Deceptive Marketing of Dietary Supplements in Malaysia: The Criminal Law Aspect

327

In many developed countries, like the EU, the

messages in advertisements are closely monitored. In

the EU, European marketing law has gradually grown

to an expansive regulation of commercial practices.

The two main Directives on this matter are the Unfair

Commercial Practices Directive (2005/29/EC) and

the Misleading and Comparative Advertising

Directive (2006/114/EC — codified version). The

Directives deal with the protection of traders and

consumers, respectively. In other parts of the world,

like in the US, all claims on products must be

supported by scientifically proven evidence. In the

US also, product liability is strictly enforced.

3 MISLEADING OR DECEPTIVE

MARKETING OF DIETARY

SUPPLEMENTS IN RELATION

TO THE PROVISIONS OF THE

MALAYSIAN PENAL CODE

According to the Penal Code (Act 574), under

section 415 defines the offence of cheating in two

parts. It describes that, whoever by deceiving any

person, whether such deception was the sole or main

inducement or not:

a) Fraudulently or dishonestly induces the person so

deceived to deliver any property to any person, or

to consent that any person should retain any

property; or

b) Intentionally induces the person so deceived to do

or omit to do anything which he would not do or

omit to do if he were not so deceived and which

act or omission causes or is likely to cause damage

or harm to any person, in body, mind, reputation

or property; is said to cheat.

The elements of the offence of cheating therefore,

for the first part, include deception of any person, by

fraudulently or dishonestly inducing that person to

deliver any property to any person or to consent that

any person shall retain any property. (Mohd Jalani

Bin Saliman v PP [1997] 5 MLJ 551)

The prevalence of misleading or deceptive

advertisements especially in dietary/health

supplements, cosmetic products and traditional

medicines may give rise to criminal liability for the

offence of cheating.

The element of ‘dishonestly’ under section 415 is

defined under section 24 of the Penal Code (Act 574)

as doing anything with the intention to cause

wrongful gain to one person or wrongful loss to

another. ‘Wrongful gain’ is gain by lawful means of

property to which the person gaining is not legally

entitled, while ‘wrongful loss’ is the loss by unlawful

means of property to which the person losing it is

legally entitled.

When a person is so deceived by an advertisement

that he parts with his money, to obtain a benefit (from

the product) that is not actually there, it is causing

wrongful loss to him while effecting a wrongful gain

to the seller. If the misleading advertisement was

made with full consciousness of its inaccuracy or

untruth, then it is an intentional deception.

Deception means, to cause a person to believe

what is false or is misleading as to a matter of fact or

leading into error. In constituting the offence of

cheating, the deception precedes and induces, the

delivery or retention of property. The person deceived

need not be a definite person to whom the false

representation is made. (Sunder Singh (1904) P.R. No

25 of 1904; 2 Cr LJ 126).

It is common knowledge that, when a person

seeks to purchase any dietary/health supplement,

cosmetic product or traditional medicine, he seeks to

gain the benefit from it as being represented by the

advertisement or the seller. Should the product not

produce the desired effect or contain such beneficial

ingredients as claimed, it shall amount to a deception.

This falls within the definition of the offence

described in section 415 of the Penal code.

The offence of cheating may not be complete

without the ‘delivery’ of property, induced by the

deception. The first part of section 415 specifically

requires that a person be fraudulently or dishonestly

induced to deliver property to any person. In the case

of Laxman Ramachandra Suryavanshi v State of

Mysore (1962) 2 Cr LJ 559, it was held that, the

moment a person deceived and by the practice of such

deception a property is fraudulently or dishonestly

obtained from him … the offence of cheating is

committed.

Under the circumstances, the offence may be

established only after the person makes his purchase

complete.

Section 418 of the Penal Code (Act 574) presents

a more serious variant of the offence of cheating in

the context discussed above.

It states that, “whoever cheats with the knowledge

that he is likely thereby to cause wrongful loss to a

person whose interest in the transaction to which the

cheating relates, he was bound either by law or by

legal contract, to protect, shall be punished with

imprisonment …”

This provision provides for a heavier punishment

compared to section 415 due to the fact, that the

wrongdoer is by law or contract, bound to protect the

victim. For instance, if a medical practitioner who

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owes a duty to his patient prescribes or recommends

such product to his patient, while fully aware of its

elements of deception, then he may fall under the

purview of section 418.

In dietary or food supplements advertisements,

most of the representations made are describing the

product, the quality of the product, and how the

product can improve a person’s health and wellbeing.

If it improves a person’s general health, maybe that is

not too misleading (although whether there are

clinical evidence or not is the issue here). But if the

supplement claims that it can cure serious medical

conditions such as diabetes, high blood pressure and

to a certain extent cancer, then clearly the

representations are not true. In such a situation, the

writers believe that section 418 can be applied.

As a company that markets a product that can be

consumed, surely, they are responsible in making sure

that consumers will not be adversely affected by their

products. Whatever representations they make in their

advertisement to sell the product must be taken to be

a true statement made in good faith. After all, a

company generally possess the skill expertise and

financial means to ensure that all due care and

attention had been given in the manufacture of their

products. The word ‘good faith’ is defined under

Section 52, Penal Code (Act 574) as something done

or believed after having given due care and attention.

If it is not, then such act shall be considered as not

having been done in good faith.

4 PENALISING THE CRIMINAL

UNDER THE TRADE

DESCRIPTION ACT 2011

Besides the Penal Code, another aspect of criminal

sanction can be seen under the Trade Description Act

2011 (Act 730). This legislation was enacted with the

aim to combat misleading or false description of

goods, services, accommodation or facilities as under

Section 3(1)(a) and 3(1) (b). It also protects the

customer against false claims where it requires any

descriptions of goods, services, given by a person

acting in the course of a trade or business to be true

and not misleading. The former statute has been

criticized (Ahmad Hidayat, 2012, cited in Nurazlina

Abdul Aziz, 2014) on its inability to effectively

safeguarding the Muslim consumer from false halal

certification and related matters. In responding to the

inadequacy of the 1972 Trade Description Act, the

government had repealed and replaced the Trade

Description Act 1972 with the Trade Description Act

2011. Zalina Zakaria et. Al (2014) commented that

the Trade Description Act 2011 imposed the

responsibility on the manufacturer to ensure that the

content and ingredients of a product matches the

description attached to a product. In compliance with

issue of safety and quality of the dietary supplement

requirements, manufacturers are obliged to act

responsibly to maintain the status that they claim of

their products. (Rosita Husain et al, 2012) It needs to

be highlighted that the amendment of the old Trade

Description Act 1972 have been plagued by many

flaws of the previous laws to address upcoming trade

issues. It is worthy to highlight that, since the Act is

prohibitive in nature, it does not provide

compensatory remedies for victims.

The 2011 Act is the recognition of matters that

may assist the activities of enforcement and raids in

reported case based audit. The act of tipping off and

whistle blowing are very much relevant to ensure the

reliability of the dietary supplement products

controlling and monitoring system. Discovering the

ineffective raids made by the enforcement officers

which was caused by the act of tipping off, the 2011

Act now prohibit any act disclosing information to

another person which may prejudice an investigation

as per under Section 44 of Trade Description Act

2011 (Act 730). Furthermore the evidence which has

been obtained through abetting and provoking

another person to commit an offence can be

admissible in court as per Section 53 of Trade

Description Act 2011 (Act 730) and role of whistle-

blowers has been recognized as they may be rewarded

fifty percent of the fee as per Section 66 of Trade

Description Act 2011 (Act 730).

5 CONCLUSIONS

As stated earlier, this article is focussed on the

criminal aspects of deceiving or misleading

advertisements of dietary or food supplements. In the

event of a consumer relying on the misleading

advertisement in buying the product, the provisions

illustrated above may be a basis for criminal

prosecution.

Should a person suffer physical injury or bodily

harm, a tortuous legal action may be a more

appropriate redress along with several other

legislations relating to consumer protection laws

relevant to this issue.

Having stated all the above, it must be stressed

that the advertising of dietary supplements in all

media channels must be regulated; probably the same

way regulations on advertising medicines and

Misleading or Deceptive Marketing of Dietary Supplements in Malaysia: The Criminal Law Aspect

329

medical products are imposed. Claims that the

product can perform miracles in terms of healing

serious illnesses without any scientific or clinical

proof must be treated as deceiving and misleading

statements which may come within the purview of

sections 415 and 418 of the Penal code, classified as

the offence of cheating as discussed above.

ACKNOWLEDGEMENTS

The authors wish to thank the Research Management

Centre, Institute of Research Management and

Innovation (IRMI) Universiti Teknologi MARA,

Shah Alam, Selangor, Malaysia for funding this

project under 600-IRMI/DANA 5/3/BESTARI

(065/2017).

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