Advertising and it’s regulation in India

In this era of globalization and mutable technology, the field of advertising has advanced significantly. Sellers now have more innovative ways to induce their audience. The influence of advertising is very big as in this digital age they can reach out through various mediums. H.G. Wells once famously said that advertising is legalised lying.

Advertisements are used to make us aware of a product. In order to entice people, advertisements try to use content that would somehow connect the audience with their product; try to make it look as if its a part of our identity. Sometimes they use relevant social topics which are trending in society as inspiration. Since their very algorithm is highly dependent on the current opinion of the audience. Often they end up promoting opinions which are detrimental to an individual’s mindset.

In this competitive field where every product or service claims to be unique and all about what the other is not. It is very difficult to determine the authenticity of this representation. Many a time these claims are exaggerated. When a person starts a business the first thing he looks into is how to advertise it. The basic idea behind advertising is that it is just a presentation, which may be oral or written, to induce consumers to make people buy things which they actually do not want. When it comes to India, advertising has a profound impact on how people understand life, the world and themselves, especially with regard to their values, choices and behaviour. This is precisely why there is a legal system needed to oversee the ethical nature of this practise.

From mission to profession to industry, the world of advertising has come a long way. Some people describe it as a parasitical, untrue, misleading and obscene Advertising Industry have been facing a lot of criticism in recent times as the advertising practices have not always been ethical.

Advertisements should be socially, culturally and morally ethical Advertisements appearing on television and radio have to be approved by Doordarshan and AIR authorities. Similarly, advertisements in newspapers and magazines, and on outdoor sites are also regulated by guidelines. In today’s competitive market, it is free for all, thus advertisers are sometimes following the unethical practices to fight the competition. For many years, the advertising industry has practiced, promoted voluntary self- regulation. Most advertisers and media recognize the importance of maintaining consumer trust and confidence. The circle of self-regulation in advertising is widening day by day. Even the code of ethics drawn up by the Advertising Standards Council of India (ASCI) has not had much impact. They do not provide solutions to every ethical dilemma.  

Advertising Standards Council of India

The Advertising Standards Council of India (ASCI) is a self-regulatory body established in 1985 formed to regulate and promote advertising in India. The ASCI has adopted a Code for Self Regulation in Advertising. Although it is a non- statutory body it is recognized under various Indian laws in addition to being adopted by advertising-industry bodies. It is followed by everyone in the commissioning, creation, placement, or publishing of advertisements. ASCI Code applies to advertisements read, heard, or viewed in India even if they originate or are published abroad so long as they are directed to consumers in India or are exposed to a significant number of consumers in India. These codes are however self-imposed discipline to be followed by those involved in the industry and in no way are the codes mandatory. 

Complementing the ASCI Code are several Indian laws governing specific media, specific populations, and specific goods and services. Some of the acts are:

• the Code for Commercial Advertising on Doordarshan and All India Radio;
• the Drugs and Magic Remedies Act 1954;
• the Emblems and Names Act 1950;
• the Indecent Representation of Women Act 1986;
• the Trademarks Act 1999;
• the Consumer Protection Act 1986;
• the Cable Television Network Amendment Act 2011;
• the Drugs and Cosmetics Act 1940;
• the Prize Competitions Act 1955;
• the Press Council Act 1978;
• the Cable Television Network Rules 1994;
• the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002;
• the Bar Council of India Rules formulated under the Advocates Act 1961;
• the Cigarettes and other Tobacco Products Act 2003; and
• the Food Safety and Standards Act 2006.

Powers of the regulators

The code is designed specifically to compliment the legal controls monitored by these laws not to usurp or replace them. The ASCI predominantly regulates and recommends alterations or amendments but it cannot pass any damages or injunction relief or rendition of accounts.

In 2006 the Cable Television Network (Amendement) rules made it mandatory for all cable advertisements to comply with the ASCI code.  According to the ASCI code, complaints against deviant advertisements can be made by any person who considers them to be false, misleading, offensive, or unfair. The Consumer Complaints Council (CCC) considers and decides on the complaints received from the general public including government officials, consumer groups, complaints from one advertiser against another and even suo moto complaints from the members of the ASCI Board or CCC.

The Reserve Bank of India, SEBI and IRDA are some of the other regulatory authorities that regulate advertisements in their respective fields.

However, with the recent judgment of the Delhi High Court in Metro Tyres Ltd v the Advertising Standards Council of India and Others 2017 (70) PTC 394 (Del), the scope of powers of the ASCI has been enhanced. It has been given the power to adjudicate upon matters concerning infringement and passing-off in an advertisement.

On receiving a complaint, the Secretariat of the ASCI acknowledges the complaint and requests the advertiser or agency to provide comments in respect of the complaint. The Consumer Complaints Council then reverts back to the part concerned within four to six weeks. 

If the complaint is upheld, the advertiser and its agency are informed of the CCC’s decision within five working days. The advertiser is given two weeks to comply with the CCC’s decision. Details of non-compliant advertisements are published in the ASCI’s media quarterly release throughout India.

Further, the ASCI has also been given the power to adjudicate in matters concerning infringement and passing off. Any appeal to such matters may be taken to the courts.

Some of the major concerns of regulators.

The basic guidelines for advertising recommended by the ASCI are:

• the truthfulness and honesty of representations and claims made by advertisements to safeguard against misleading advertisements;
• that advertisements are not offensive and do not contain anything indecent, vulgar or repulsive that is likely, in the light of generally prevailing standards of decency and propriety, to cause grave or widespread offence;
• the safeguarding against the promotion of products that are regarded as hazardous or harmful to society or individuals, particularly minors, to a degree or of a type that is unacceptable to society at large;
• that advertisements observe fairness in competition so that the consumers’ need to be informed on choices in the marketplace and the standards of generally accepted competitive behaviour in business are both served; and
• in matters concerning celebrity endorsements, celebrities are expected to have adequate knowledge of the Codes and it is the duty of the advertiser and the agency to make sure that the celebrity they wish to engage with is made aware of them. Testimonials, endorsements or representations of opinions or preference of celebrities must be genuine.

Products banned from advertising

There are also several products which are banned from advertising in India to protect its impressionable audience. Such as,

• tobacco, under the Cigarettes and other Tobacco Products Act;
• alcoholic beverages, under the Cable Television Network (Regulation) Amendment Bill;
• human organs, under the Transplantation of Human Organs Act 1994;
• magical remedies, under the Drugs and Magical Remedies (Objectionable Advertisements) Act 1954;
• for prenatal determination of sex, under the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994;
• prize chits and money circulation schemes, under the Prize Chits and Money Circulation Schemes (Banning) Act 1978;
• physicians, under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations; and
• legal services, under the Bar Council of India Rules, formulated under the Advocates Act.

The ASCI also prohibits  any kind of advertisements which might promote physical mental or moral harm of children or exploits their vunerability. For example, advertisements may not feature minors promoting tobacco or alcohol-based products; show minors using or playing with matches or any inflammable or explosive substances; or show minors playing with or using sharp knives or guns, the careless use of which could lead to cuts, burns, shocks or other injuries.

Section 3 of the Drugs and Magical Remedies (Objectionable Advertisements) Act contains specific laws which preclude advertising of drugs for certain disorders. The Act also prohibits any individual or company from claiming they can cure diseases. 

Section 24 of the Foods Safety and Standards Act emphasises on its aversion to misleading and deceptive advertising. It also addresses unfair trade practises for promoting one’s on products like making false claims, misleading ads, giving unauthorised guarantees etc..

Advertising alcoholic beverages has been banned in India as per the Cable Television Network (Regulation) Amendment Bill, which came into effect on 8 September 2000.

Clause 6 of the ASCI Code, prohibits tobacco products, alcohol and gambling are from being advertised. Although, many a time these products are advertised indirectly private channels often permit alcohol companies to advertise using surrogate means by purporting to be advertisements for other products. 

Conclusion

The field of advertising is very innovative and dynamic. It has a lot of scope in the future. But curtailments of such kind by the country are necessary to protect the welfare of its citizens. This sphere has a very heavy influence on its audience, especially the youth. Therefore if not regulated properly it might lead to dire consequences. Now, with the digital age its influence has grown even stronger. Companies spend a huge amount of their resources on advertising and promotional strategies. Through an advertisement, a company can build an image which it wants to make in the minds of the people. Hence more stringent laws are required to regulate their methods. It is very easy to be a victim of deceptive advertising. In India, the field of advertising is subject to a multiplicity of laws in the absence of a comprehensive statutory mechanism that would lay down ground rules in clear terms for advertising in the country.

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Sneha Kolluru

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