SELF- REGULATION IN
ADVERTISING
The
advertising industry has a reasonably effective and efficient self-regulation mechanism. By self –regulation it is meant that advertisements
should be such that they do not violate the Code of self regulation , laid down
by various statutes in India as well as abroad. This is done in order to
maintain honesty and truthfulness in the advertisement of products and services
shown to prospective customers with a view to attract them towards their goods.
It is rightly said – Advertising is essentially a thing to induce consumption
to make people buy things they do not want. In such a process, advertisements
tend to mislead people, so that they buy things they really do not need.”
A product or service may be advertised through a variety of
methods such as hand –bills, circulars, direct mail, bill- boards, signboards,
newspapers, magazines, radio, television, the internet and so on. There are
various kinds of advertising such as – comparative advertising which compares
the advertised brands with another brand of the same product. ; Competitive
advertising which contains very insignificant information about advertisement
and is used only to help a producer maintain a share of the market.
Advertisement is a facet of right to information. A vital aspect
of advertising that makes it a part of Article 19(1)(a) is that it facilitates
the dissemination information about who is selling what product and at which
price. Advertisements help people make well-informed and intelligent economic
choices. More important than the right of expression of the advertiser is the
right of the recipient of the advertisement. The supreme court observed in Tata Pres V/s Mahanagar telephone
Nigam Ltd. – ARTICLE 19 (1)(a) not only guarantees right of freedom of speech
and expression but the but it also protects the right of an individual to
listen, read and receive “ commercial speech”. So far the economic needs of a
citizen are concerned their fulfilment has to be guided by the information
disseminated through advertisement. The recipient of “commercial speech” may be
having greater interest in the advertisement given. Such deeper interest can be
dealt with dishonesty by the advertiser as the consumer totally relies on the
information provided by the advertiser through his advertisement of the given
product.
To regulate advertisement according to the self regulation code
and also otherwise is provided for in certain statutory provisions – say for
example, Indian penal code, 1860 makes it a punishable offence to advertise any
obscene publication or its distribution, sale, hire or circulation or so on.
Now the code for self regulation in advertising pertinent extracts adopted by
the Advertising Standard council of India Under Article 2(ii) of its Article of
association.
The Advertising Standards Council of India (ASCI) (1985) has
adopted a Code for Self-Regulation in Advertising. It is a commitment to honest
advertising and to fair competition in the market-place. It stands for the
protection of the legitimate interests of consumers and all concerned with
advertising - advertisers, media, advertising agencies and others who help in
the creation or placement of advertisements. As the Code becomes increasingly
accepted and observed pro-actively, three things will begin to happen.
This Code for Self-Regulation has been
drawn up by people in professions and industries in or connected with
advertising, in consultation with representatives of people affected by
advertising, and has been accepted by individuals, corporate bodies and
associations engaged in or otherwise concerned with the practice of
advertising, with the following as basic guidelines, with a view to achieve the
acceptance of fair advertising practices in the best interest of the ultimate
consumer:
I.
To ensure the truthfulness and honesty of representations and claims
made by advertisements and to safeguard against misleading advertisements.
II. To ensure that advertisements are
not offensive to generally accepted standards of public decency.
III. To safeguard against the
indiscriminate use of advertising for the promotion of products which are
regarded as hazardous to society or to individuals to a degree or of a type
which is unacceptable to society at large?
IV.
To ensure that advertisements observe fairness in competition so that
the consumer’s need to be informed on choices in the market-place and the
canons of generally accepted competitive behaviour in business is both served.
The Code’s rules form the basis for judgment whenever there may be
conflicting views about the acceptability of an advertisement, whether it is
challenged from within or from outside
the advertising business. Both the
general public and an advertiser’s competitors have an equal right to expect
the content of advertisements to be presented fairly, intelligibly and responsibly. The Code applies to advertisers, advertising
agencies and media. These three major participants in the advertising process
work individually and collectively to encourage truthful, ethical, and
responsible advertising.
Which only means more freedom for you to practise your craft or
carry on your business effectively? As a member of ASCI, you can mould the
course of Self-Regulation and participate in the protection of healthy,
effective advertising. You can have a say, through the Board of Governors, in
the further development of the Code and future appointments to the Consumer
Complaints Council (CCC). Membership of the ASCI (open only to Firms) entitles
you to appoint your nominee to discharge your function as a member
Nothing can be better than self-discipline. External regulations
imposed by law would not really be necessary if this ideal would have been
effective. In this article, I will deal with malpractices in advertising and
misleading which after complaint to the ASCI had to be taken off the Air. Advertisement
and how efficacious or meaningless is the so-called self regulation in
advertising by the Advertising Standards Council of India (ASCI) having its
office at Bombay.
Every day we see various advertisements on various mass media
example – television, internet, radio. Many of these advertisements are
objectionable. As recently there was an objectionable advertisement of Amul
Macho underwear which after complaint to the ASCI had to be taken off the Air.
The difficulty is in describing what is obscene advertisements,
because what is obscene is subjective and depends on individual perceptions.
Here reference is on patently false and misleading and uncomfortable
advertisements. We regularly come across advertisements which promote dubious
products, making unsubstantiated tall claims about their wondrous performance.
The side-effects or the harmful effects of these products are invariably
suppressed. Advertisers often make misleading statements about the utility of
their products. What is done to check these misrepresentations?
The ASCI has formulated its self-regulatory code which is
wonderfully attractive on paper. But what does it do about misleading
advertisements? No attempt is made to caution the public about the
misrepresentation. No press release is issued to make the public aware that
they should not believe these misrepresentations.
It is necessary to pin point the areas where consumers require to
be cautioned in order to prevent them from being misled by such advertisements. A
genuine example would be- it is common to see on railway platforms and in trains’
advertisements of quacks posing as doctors. The commonest advertisements are
for piles and abortion clinics. The Medical Council’s Code of Ethics prevents
doctors from advertising. Disciplinary action is taken against doctors who
advertise their services or against those who participate in advertisements for
promoting a particular medicine, vitamin or drug. Hence genuine doctors do not
advertise. Those who seek confidentiality for their problems fall prey to these
quacks. Yet the Railway Administration is not bothered about these
advertisements.
The Drugs and Magic Remedies (Objectionable Advertisement) Act,
1954. This Act prohibits the advertisement of any diagnosis, cure, mitigation,
treatment or prevention of certain diseases / disorders / conditions listed
under the Schedule to this Act. There is a celebrated case law which falls
under the ambit of this laws blatant violation it is Hamadard davakhana case. The facts of
the case was a drug was advertised it have the quality to magically cure
certain types of diseases, which in fact was not so. The court held that these
are misleading advertisement and the defendant had been held liable.
The Schedule lists 54 such disorders and conditions amongst which
are included cancer, obesity, fits, sexual impotence, and also drugs for
maintaining or improving sexual pleasure, or drugs... for causing miscarriage
or prevention of conception.
The Act provides that its violation would be a cognizable offence.
Even the media which carries or displays the advertisement commits the offence
by participating in the advertising process. Yet the police do not take
cognizance of such advertisements. The lucrative and recurring revenue
generated by these advertisements is more important to newspapers, television
channels and advertising agencies and it is profitable to disregard the law.
When nobody is bothering about such advertisements, not even
consumer organizations, why should ASCI is expected to take action? Because
ASCI has been set up by businessmen and industrialists specifically for
self-regulation in advertising. Why should it make a farce of the whole
complaint process?
The classical example would be the Cola wars. Can anybody deny
these as to be blatant misleading expressions of these Colas, as in they are so
important for survival? But nobody has the courage to question them because
they are huge and powerful companies.
Conclusion
The code of self –regulation drawn up for advertisers India is not
at all sufficient and there should be more sincere observance of the code.
However whenever there is competitive advertisement the competition drags each
of the advertisers to the ASCI which is a non –statutory body. But whenever
there is breach of public confidence by these advertisers by showing misleading
advertisements, they should be immediately checked to safeguard the interest of
innocent customers. Moreover there should be a statutory regulatory authority
instead of ASCI which is non statutory which being so, has no binding authority
on the non-members. This would definitely help to improve the quality of
advertisements in India
Legal aspects in
standards of code of conduct
Advertising to Children (advertising
during and immediately before and after children's programming)
The Young
Persons (Harmful Publications) Act, 1956 prohibits advertisements
relating to any harmful publication i.e., any publication that tends to corrupt
a young person (person under the age of 18 years) by inciting or encouraging
him or her to commit offenses or acts of violence or cruelty or in any other
manner whatsoever.
According to the ASCI Code, advertisements addressed to minors shall not contain
anything, whether in illustration or otherwise, which might result in their
physical, mental, or moral harm or which exploits their vulnerability. For
example, advertisements may not:
- Encourage
minors to enter strange places or to converse with strangers in an effort
to collect coupons, wrappers, labels or the like
- Feature
dangerous or hazardous acts which are likely to encourage minors to
emulate such acts in a manner which could cause harm or injury
- Show
minors using or playing with matches or any inflammable or explosive
substance; or playing with or using sharp knives, guns, or mechanical or
electrical appliances, the careless use of which could lead to their
suffering cuts, burns, shocks, or other injury
- Feature
minors in promoting tobacco or alcohol-based products
- Feature
personalities from the field of sports, music, or cinema for products
which, by law, either require a health warning in their advertising or
cannot be purchased by minors.
Example:
Sunfeast Milky Magic Biscuits in which a child
was given sunfeast biscuit and he instantly grows taller and is able to reach
the basket.
Comparative Advertising (ads that
compare the advertiser's product to that of a competitor)
The provisions pertaining to comparative
representation were part of "Unfair Trade Practice" under the Monopolies and Restrictive Trade Practices
Act, 1969 (MRTP Act).
After repeal of the MRTP Act, the provisions relating to unfair trade practices
were inserted in the Consumer
Protection Act, 1986. However, a business entity cannot claim relief
against unfair comparative advertising under the Consumer Protection Act, as a
business entity is not a consumer. This can be taken up only by consumer
associations, the central government, or state governments, and it does not
provide protection to the business entity equal to the protection under the
MRTP Act. Thus, under the existing law, a manufacturer whose goods are
disparaged has no standing to seek a remedy. Presently, in the absence of any
specific legislative regulating comparative advertising, disputes are decided
by various courts on the basis of the facts in each case. However, ASCI code
(which is made part of the Cable Television Network Rules, 1994 as well)
permits advertisement containing comparisons including those where a competitor
is named in the interests of vigorous competition and public enlightenment,
provided:
- It
is clear what aspects of the advertiser's product are being compared with
what aspects of the competitor's product.
- The
subject matter of comparison is not chosen in such a way as to confer an
artificial advantage upon the advertiser or so as to suggest that a better
bargain is offered than is truly the case.
- The
comparisons are factual, accurate and capable of substantiation.
- There
is no likelihood of the consumer being misled as a result of the
comparison, whether about the product advertised or that with which it is
compared.
- The
advertisement does not unfairly denigrate, attack or discredit other
products, advertisers or advertisements directly or by implication.
Presently, ASCI is actively taking action against any advertisements making
unsubstantiated claims, exaggeration, unfair denigration in violation of ASCI
Code.
Example: Tide vs Rin
Rin released an advertisement that made Tide’s
product inferior. There are statements that the results are tested by the
independent laboratory and the ad is issued in the public interest of RIN
users.
Complan vs Horlicks
Contests (games
of chance and games of skill)
The Public Gambling Act, 1867 prohibits
gambling activities in India. However, the Public Gambling Act permits games of mere skill.
Deceptive or Misleading Advertising
Deceptive or misleading advertisements are
restricted under the various legislations including the Consumer Protection
Act, 1986; Cable Television Network Rules, 1994; Norms for Journalist Conduct
issued by the Press Council of India Act and ASCI Code.
Example:
Maggie Soups
ASCI have asked Nestle to get rid of promotional claims made
on Maggi packs about its soups being "heart friendly". It was making
false claim of Maggie soup being heart friendly.
Complaint against Glaxosmithkline
Consumer Healthcare's Boost's ad was also upheld. As per the complaint, the TVC
claims that "the consumption of Boost not only increases oxygen
consumption but gives three times more stamina".
Surrogate Advertising
The ASCI
Code provides that advertisements of products whose advertising is
prohibited or restricted by law or by the ASCI Code must not circumvent such restrictions by purporting to
be advertisements for other products the advertising of which is not prohibited
or restricted by law or by ASCI Code. To determine if there is an indirect
advertisement of prohibited products due attention shall be given to the
following:
- Visual
content of the advertisement must depict only the product being advertised
and not the prohibited or restricted product in any form or manner:
- The
advertisement must not make any direct or indirect reference to the
prohibited or restricted products
- The
advertisement must not create any nuances or phrases promoting prohibited
products
- The
advertisement must not use particular colours and layout or presentations
associated with prohibited or restricted products
- The
advertisement must not use situations typical for promotion of prohibited
or restricted products when advertising the other products.
The Cable Television Networks Rules, 1994 has
also imposed similar restrictions to curb surrogate advertising.
Example: Royal Challenge, King Fisher Mineral Water
etc.
1. Bagpiper: It is a famous
brand of whisky. In advertisement actually Bagpiper Club Soda is shown at the
place of whisky.
2. Royal Stag: It is well known
as 'RS'. Instead of advertising whisky, manufacturer had shown. Music CD and
Mega Cricket in the advertisement with theme "Make it Large". But
people never try to purchase these products. They always know that Royal Stag
means whisky.
3. McDowell's No.l Platinum: This whisky
brand is advertised with surrogate product Soda. Indian Cricket. Team skipper
MS Dhoni' tells that, "The No. 1 Spirit of Leadership". Through soda
company is advertising their whisky products.
4. Hayward's 5000:This brand is
also advertised with the help of soda and packaged drinking water, but many
people know very well that Hayward’s 5000 & 10000 are whisky, beer brands.
5. 8PM: Advertisement of this whisky is
different than all of others. In first scene, few youth girls and boys are
moving somewhere rapidly. In next scene they are going show & see
"Aath ke Thaat" in a disco club. Means indirectly, enjoy after
drinking 8FM Whisky.
6. Imperial Blue: This whisky is popularized
by showing music cd's in the advertising.i.e. Imperial Blue Music CD's.
7. Royal Challenge: Some cricketers are shown
in this advertisement, at the same time music is played. At the end of
advertisement brand name 'Royal Challenge' is displayed in bold letters with
very small 'Music CDs'. It was also advertised with the help of mineral water.
8. Officer's Choice:
'OC is the leading and well-known brand in
whisky market. Actually this brand is advertised by showing mineral water and
soda, but all people can know what intention of that advertisement is. It shown
that 'OC' is the brand of officers and dynamic people.
Advertorials and Disguised Ads
The Norms for Journalist Conduct issued by the
Press Council of India, Cable
Television Network Rules, 1994 and Advertising Code of Doordarshan requires
that advertisements must be clearly distinguishable from news content carried
in the newspaper.
False Advertising
False advertisements are restricted under the
various legislations including the Consumer Protection Act, 1986; Cable
Television Network Rules, 1994; Norms for Journalist Conduct issued by the
Press Council of India Act and ASCI Code.
Example: Pepsodent
Advertisement of Hindustan Level saying that
Pepsodent is “one and a half times better at fighting germs than the popular
toothpaste” that appeared in Sunday Times of India in September that year.. The
complainant alleged that HLL’s own clinical tests confirmed that Pepsodent
Germicheck fights germs up to 150 that is only 0.5 times better and not one and
a half times better, as claimed in the ad
"Free" Gifts/Samples
The Consumer Protection Act 1986, Section 2
(3) (a) states that (i) the offering of gifts, prizes or other items with the
intention of not providing them as offered or creating impression that
something is being given or offered free of charge when it is fully or partly
covered by the amount charged in the transaction as a whole, or (ii) the
conduct of any contest, lottery, game of chance or skill, for the purpose of
promoting, directly or indirectly, the sale, use or supply of any product or
any business interest, is an unfair trade practice.
The Norms for Journalist Conduct issued by the
Press Council of India has stated that gift including those given by the
advertisement agencies for publication of material relating to their clients or
otherwise should not be accepted by the journalist.
Free Speech (specific limitations,
e.g. personal slurs, defamation, political statements)
Article 19(1)(a) of the Constitution of India protects the
right to freedom of speech and expression, which is also extended to
advertisements. However, like any other right, this freedom is also subject to
reasonable restrictions imposed by Article 19(2) of the Constitution of India.
Furthermore, the ASCI Code states that no advertisement shall be permitted which:
- Derides
any race, caste, color, creed, or nationality
- Tends
to incite people to crime or to promote disorder and violence or
intolerance
- Presents
criminality as desirable or directly or indirectly encourages people,
particularly minors, to emulate it or conveys the modus operandi of
any crime
- Adversely
affects friendly relations with a foreign state
Products and Services Banned From
Advertising
Tobacco
The Cigarettes
and other Tobacco Products (Prohibition of Advertisement and Regulation of
Trade and Commerce, Production, Supply and Distribution) Act, 2003 ("Tobacco Prohibition Act")
prohibits all direct and indirect advertising of tobacco products in all media.
Human Organs
The
Transplantation of Human Organs Act, 1994: This law provides for the regulation
of removal, storage and transplantation of human organs for therapeutic
purposes and for the prevention of commercial dealings in human organs. This
law prohibits any advertising inviting persons to supply, offering to supply
and any human organ for payment.
Magical Remedies
The Drugs
and Magical Remedies (Objectionable Advertisements) Act, 1954 prohibits
advertisement of magical remedies of diseases and disorders.
Services for
Pre-Natal Determination of Sex
The Prenatal
Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 prohibits
advertisements relating to pre-natal determination of sex.
Infant formula
Advertising forbidden in order to
encourage natural feeding of infants. See details under Food.
Prize Chits and
Money Circulation Schemes
The Prize Chits and Money Circulation Schemes (Banning) Act, 1978
prohibits advertisements relating to prize chit2 and money
circulation schemes.
Physicians
Under the Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002, issued under the Indian Medical Council Act, 1956, physicians are not allowed to
advertise their services in any form or manner of advertising through any mode,
as soliciting of patients directly or indirectly, by a physician, by a group of
physicians, or by institutions or organizations is unethical. (A physician refers
to a doctor with a qualification of MBBS or MBBS with a postgraduate
degree/diploma or with an equivalent qualification in any medical discipline.)
However, medical practitioners are allowed to make a formal announcement in
press regarding the following:
·
On
starting practice
·
On
change of type of practice
·
On
changing address
·
On
temporary absence from duty
·
On
resumption of another practice
·
On
succeeding to another practice
·
Public
declaration of charges
Legal Services
The Bar Council of India Rules formulated under the Advocates Act 1961 strictly enforce
the advertisement ban and publicity rules governing law firms' websites. These
rules were enacted and enforced to curb the false advertisement of lawyers to
gain publicity to attract clients.
Alcohol
(Beer, Wine, and Spirits)
The Cable Television Network Rules, 1994, the Advertising Codes of Doordarshan,
and the All India Radio and Norms for Journalist Conduct issued
by the Press
Council of India prohibit any advertisement directly or
indirectly promoting the production, sale, or consumption of cigarettes,
tobacco products, wine, liquor, or other intoxicants. However, some states
allow advertising through billboards, signboards etc. but subject to many
restrictions. Also, the ASCI Code prohibits
use of minors for advertising alcohol products.
Professionals
such as Chartered Accountants, Company Secretaries & Cost Accountants
These professionals are prohibited from soliciting clients or
professional work by advertisement. However, they may issue advertisements
about their firm or services of their firm, through any mode of transmission,
having inter alia details of names of
partners, address and website, telephone, mobile, e-mail, fax number of the member,
year of establishment, additional recognized qualifications, languages spoken
by the partner(s), honours or awards in the field of teaching, research,
authorship etc.
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