It is undeniable to say that advertising sector is rapidly growing which needs a comprehensive and well-defined regulatory system to ensure that the interests of all the relevant stakeholders are represented and cared for. Advertisements have long played a crucial role in shaping up the business and their importance has risen with the advent of digital era.
Due to increased competition in global market, the consumers have become more vulnerable to the dangers of predatory and misleading advertisements tactics than ever before. On the flipside, with respect to businesses, monetary investments into advertising as well associates risks pertaining to goodwill have increased remarkably over the years.
There are several laws in India including Consumer Protection Act, Cable Television Networks (Regulations) Act and so which deals to put a cap on misleading advertising. Apart from this, there is regulatory body namely Advertising Standards Council of India (ASCI) which is committed to promote advertising and to increase public confidence in advertisement.
What is the structure and main functions of ASCI?
ASCI is voluntary self-regulatory body which came into existence in the year of 1985. The Council consists of Board of Governor and Consumer Complaints Council. The Board of Governors comprises four members each member from the fields of Advertisers, Advertising Agencies, Media and related like outdoor agencies. The objectives of the body include the follows:-
- To make sure the genuineness and honesty of representations as well as claims made by advertisements.
- To ensure that advertisements are not offensive.
- Protection against biased use of advertising for the promotion of products regarded as hazardous to society or to individuals.
- To bring fairness in competition.
Let’s shine some light on the important pieces of legislation dealing with advertisements in India:-
Consumer Protection Act, 1986: The Act provides the definition of term “unfair trade practices” under Section 2 (r), wherein it covers false and misleading representations and facts under the purview of unfair practices allowing consumers to file complaints against such representations being made by any trader or service providers. Moreover, while enumerating the objects of Consumer Protection Council, requires them to ensure that, among other things, they protect the consumer’s right to be informed so as to protect the consumer against trade practices. Furthermore, the Act also provides District Forums the power to grant punitive damages to discontinue any unfair trade practices.
Cable Television Network (Regulations) Act:- The Act prohibits any person from transmitting or re-transmitting any programme through a cable service unless the same is in conformity with the prescribed advertisement personnel, the power to prohibit the transmission or re-transmission of any advertisements which are in violation of its provisions or if the same are likely to promote, disharmony, hatred or ill-will between different religious, racial, linguistic or regional groups on grounds of religion, race, language, caste or community or any other ground, or which likely to disturb public tranquility.
Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003: – The Act prohibits the direct or indirect advertisement of cigarettes or any other tobacco products in all forms of audio, visual, and print media. If any person is found to be in contravention of such prohibition then he/she will be liable for punishment with imprisonment upto five years or a fine upto five thousand rupees.
Besides this, the Act also provides authorized personnel, the power of search, seizure, forfeiture and confiscation in respect of any advertisement of cigarettes or any other tobacco products.
Drug and Magic Remedies Act, 1954 and Drugs and Cosmetics Act, 1940:- The said Act is enacted to regulate the advertisements of drugs in certain cases and to prohibit the advertising for certain purposes of remedies alleged to have magic qualities and for matters connected with Section 29 of the Drugs and Cosmetics Act, 1940. Additionally, the Act imposes a penalty upon if anyone uses any reports of a test or analysis made by the Central Drugs Laboratory or by a Government Analyst, or any extract from such report for the purpose of advertising any drug.
The present system of regulation is not sufficient to effectively regulate the advertising sector owing to ever growing influence of advertisement on society tremendous changes in the industry. Old issues of advertising such as misleading prices, deceptive representations, and labeling etc. are become more vulnerable with the contemporary era’s trends including sponsored movie shots and paid posts by superstars on their social media handles. Therefore, uniform statutory framework regulating advertisements is needed.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali