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The Code for Self - Regulation in Advertising

Written by: Shubhra Deepa Moitra - A final year student of Symbiosis Law College, pune. I love reading modern fictions.
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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 gurantees 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 fulfillment 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 rely 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 obsene publication or its distribution , sale, hire or circulation or so on. Now the code for self regulation in advertising pertinent extractas 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.

· Fewer false, misleading claims
· Fewer unfair advertisements
· Increasing respectability

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.
Everyday we see various advertisements on various mass media example – television , internet, radio. Many of these advertisements are objectionable. As recently their 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? Simply nothing. Turns a blind eye. 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 advertisement.

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 was 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 be 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. Is it not so.

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 whenevr there is competitive advertisement the competition drags each of the advertiser to the ASCI which is a non –statutory body. But whemever there is breach of public confidence by these advertisers by showing misleading advertisements, they should be immediately cheked 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.

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