Advertising in India is still said to be in an evolving stage. All though the
integration of Indian advertising with the global integration is nearly
complete. With all the global names of the advertising world are present in
India. Today, India has one of the fastest-growing markets in the world with
cut-throat competition amongst the sellers, each of them striving to make their
products stand out from the rest in the eyes of the consumer.
In such immensely
competitive environments, advertising of the products is one of the ways in
which sellers attempt to distinguish their products from those of others. Often
times, we find that sellers tend to make exaggerated or false claims, as a
result of which the end product is unable to meet the expectations created in
the minds of the consumer by such advertisements. Therefore, a need was felt to
curb this practice of unfair advertising. In this article, the standards created
for such advertisements will be discussed in detail.
The Advertising Standards Council of India (ASCI) is a voluntary self-regulatory
organization of the advertising industry in India. Established in 1985, ASCI is
registered as a non-profit company under section 25 of the Company Act.
ASCI is committed to the cause of self-regulation in advertising, ensuring the
protection of the interest of consumers. ASCI seeks to ensure that
advertisements conform to its Code for Self-Regulation, which requires
advertisements to be legal, decent, honest and truthful, and not hazardous or
harmful while observing fairness in competition. ASCI looks into complaints
across ALL MEDIA such as Print, TV, Radio, hoardings, SMS, Emailers,
Internet/web-site, product packaging, brochures, promotional material and point
of sale material etc.
ASCI's role has been acclaimed by various Government
bodies including the Department of Consumer Affairs (DoCA), Food Safety and
Standards Authority of India (FSSAI), Ministry of AYUSH as well as the Ministry
of Information and Broadcasting. The association with these Government bodies is
to co-regulate and curb misleading and objectionable advertisements in the
respective sectors. In January 2017, the Supreme Court of India in its judgement
also affirmed and recognized the self-regulatory mechanism as an effective
pre-emptive step to statutory provisions in the sphere of advertising content
regulation for TV and Radio in India. ASCI is a part of the Executive Committee
of International Council on Ad Self-Regulation (ICAS).
Among several awards
bestowed by the European Advertising Standards Alliance (EASA), ASCI bagged two
Gold Global Best Practice Awards for the Mobile App "ASCIonline" (2016) and for
reducing the time taken to process complaints (2013).
Advertising in India is still said to be in an evolving stage. All though the
integration of Indian advertising with the global integration is nearly
complete. With all the global names of the advertising world are present in
India. Be it the WPP group of companies or the Publicis and Omnicom Group or the
Densue. All have a presence in India mostly through the takeover of Indian
agencies.
A misleading advertisement under Consumer Protection Act, 2019 can be defined
as- "misleading advertisement" in relation to any product or service, means an
advertisement, which- falsely describes such product or service; or gives a
false guarantee to, or is likely to mislead the consumers as to the nature,
substance, quantity or quality of such product or service; or conveys an express
or implied representation which, if made by the manufacturer or seller or
service provider, thereof, would constitute an unfair trade practice; or
deliberately conceals important information".
In the same way as the Consumer Protection Act, provisions related to misleading
advertisements and punishment for the offence are also included in various other
laws and regulations such as- Drugs and Cosmetics Act, 1940, The Drugs and Magic
Remedies (Objectionable Advertisements) Act, 1954, Food Safety and Standards
Act, 2006.
What is the ASCI?
The Advertisement Standards Council of India (hereinafter, "ASCI") was
established in the year 1985 under Section 25 of the Companies Act, 1956. It has
been defined as a "voluntary, self-regulatory council" which has been registered
as a non-profit company. The view with which the ASCI was formed that all the
advertising activities in India must be legal, truthful, decent, honest, with a
sense of social responsibility and in line with fair competitive conditions.
Currently, there are similar self-regulatory bodies in over 70 countries of the
world, including India, the United States of America, the United Kingdom and
Germany. The four main constituents of advertising industry, viz. advertisers,
advertising agencies, media and allied professions came together to form ASCI.
The aim of ASCI is to maintain and enhance the public's confidence in
advertising. Their mandate is that all advertising material must be truthful,
legal and honest, decent and not objectify women, safe for consumers -
especially children and last but not the least, fair to their competitors.
The Advertising Standards Council of India (ASCI) is a self-regulatory and a
non-government body which was established in the year 1985. The members of the
council are reputed firms of India which includes advertisers, PR agencies,
media and advertising agencies and other professionals related to advertising.
It was established to ensure all the advertisements to be legal, decent, honest
and truthful along with a sense of social responsibility towards the consumers
and to the rules of fair competition. The Ministry of Information and
Broadcasting in August 2006, issued a notification holding it mandatory for all
the TV commercials in India to follow the ASCI codes. This move has made the
Advertising Council more effective and considerable.
Structure of the ASCI
The ASCI team consists of a Board of Governors, members of the Consumer
Complaints Council and a Secretariat. The Board of the ASCI consists of a
governor and 16 members, which comprise of members of reputable firms including
media agencies, advertisers and other individuals involved with the advertising
business. The members of the Consumer Complaints Council are discussed in detail
subsequently in the article. The Secretariat consists of 5 members and is headed
by the Secretary General.
It is important to note that the ASCI is not a government body and is not
responsible for formulating rules for the general public. The ASCI has adopted a
self-regulating code, in its commitment to further the interests of the
consumers. The ASCI also invites complaints from consumers against any such
unfair, untruthful and false claims and advertisements; all of such complaints
are examined independently by the Consumer Complaints Council.
In the year 2016, the Ministry of Information & Broadcasting cast a mandate on
all commercials and advertisements to follow the ASCI Code.
Objectives of the ASCI
The ultimate mission of the ASCI is to promote truthfulness, honesty, public
decency, societal standards and to oppose hazardous products. The objectives of
the ASCI include to "monitor, manage and promote" standards with respect to
advertising practices in the country, with a view to ensure the following:
- That advertising claims are presented with truthfulness and honesty, and
that no misleading and false claims are made.
- That the advertisements are not made and presented in a manner which is
offensive to the general public in India, and that the standards of public
agency are followed.
- That no advertisement is made in respect of products or services
regarded as hazardous or unacceptable to individuals or to the society.
- That no unfair means are used by anyone player in the market, and that
advertisements are made in a competitive manner.
The ASCI also has been established in order to codify, modify and adopt a code
for fair advertisement, and that such code is modified from time-to-time.
Another objective includes to provide for a Consumer Complaints Council to
entertain claims against advertisements in violation of the set standards and
practices.
The Consumer Complaints Council
The Consumer Complaints Council is the body responsible for examining and
investigating complaints from consumers and the public at large in relation to
any contravention of the Code of Conduct of the News Broadcasting Associations
and advertisement ethics. It also makes recommendations as to actions to be
taken against such contravention.
The members of the Consumer Complaints Council are appointed by the Board of
Governors. There are 21 members of which 12 are appointed from the civil society
and 9 from professional advertisers. Usually, complaints are decided within 4 to
6 weeks.
In case no reply is received from the advertiser, the Consumer Complaints
Council can pass an ex-parte decision, and can ask the wrongdoer-advertiser to
modify or even to remove the false and misleading advertisement.
Jurisdiction of the ASCI
While there are no statutory provisions on the same, the jurisdiction of the
ASCI has been discussed at length by the judiciary. For example, in the case of
Procter and Gamble Home Products vs. Hindustan Unilever Ltd., the High Court of
Delhi held that the ASCI is a self-regulatory body, but it cannot adjudicate
upon any disputes or award any damages.
The complaint committee of the ASCI is
only for self-regulation. In case any complaint is found to be of merit by the
ASCI, it can only recommend steps to be taken or changes to be made by the
advertiser but it cannot grant any other relief to the complainant. In other
words, the ASCI does not stand at the same footing as a civil court, which is
empowered to adjudicate disputes and award damages, and that it can only
complement, and not usurp, the power of civil courts.
A similar stance has been taken by the High Court of Bombay in
Century Plyboards
vs. Advertising Standards Council of India in which it has been held that the ASCI cannot assume the powers vested in a civil court. It was reiterated in this
case that the machinery of the ASCI has only been designed to "complement the
legal controls", and not surpass them.
On the other hand, the Delhi High Court has taken a contrary view in the case of
Metro Tyres Ltd vs. The Advertising Standards Council of India in which the
issue before the court was whether the ASCI is competent to entertain complaints
related to infringement of copyright, in view of the fact that jurisdiction to
deal with disputes of infringement and passing off has been vested in courts not
below a District Court. The High Court answered the question in the affirmative,
and rather encouraged the role of self-regulatory bodies in lessening litigation
and providing an alternate dispute mechanism.
To summarize, the law regarding the jurisdiction of the ASCI in dealing with
complaints remains unclear at the present. While it is settled that the ASCI is
competent to make suggestions, what remains unsettled is whether the ASCI can
adjudicate on any disputes and award damages to the complainant. To have a
strong legal backing, the author contends that the law needs to be more focused
so as to bring more clarity in the role of the ASCI to more efficiently deal
with complaints.
Working of ASCI
ASCI Serves for the redressal of consumer complaints and grievances. The
complaints as received re taken us by the Content complaint council (CCC) of
ASCI.
The ASCI's CCC comprises:
- Twelve non-advertising professionals representing civil society,
recognised opinion leaders in disciplines such as medical, legal, industrial
design, engineering, chemical technology, human resources and consumer
interest groups.
- Nine advertising practitioners from member firms of ASCI.
The ASCI's CCC (content complaint council) decides upon the complaints within a
period of four to six weeks after giving the other party an opportunity of being
heard. If the complaint is upheld, then the advertiser and its agency are given
two weeks to comply with the ASCI's CCC decision. Noncompliant advertisements
are published in ASCI's Media quarterly release on an all-India basis.
In the
case of noncompliant television advertisements, the advertiser is in violation
of the Cable TV Networks (Regulation) Act 1995 and will be reported to the
Ministry of Information & Broadcasting, Government of India. In the case of
noncompliant advertisements in the press, ASCI will inform the Press Council of
India about breach of the ASCI Code.
The complaints received by the ASCI are decides on the basis of the following
6 parameters:
- False advertising
- Misleading advertising
- Indecent advertising
- Illegal advertising
- Advertising leading to unsafe practices
- Advertisements unfair to competition
ASCI's codes and Guidelines
ASCI's codes and guidelines regarding the brand extensions are:
- The brand extension of products like liquor, tobacco, etc be considered
genuine, it must be registered under an appropriate government authority
such as the Food Safety and Standards Authority of India.
- The in-store availability must be at least 10% of that of the leading
brand in the category that the product competes, or sales turnover must
exceed Rs 5 crore per annum or Rs 1 crore per annum in each state where it
is distributed.
- It must have a proper certificate from an independent organization for
such turnover and distribution data.
- If the advertisement does not comply with the criteria or the data
provided is not certified by an independent body, the advertisement is
discontinued. Further, it is to be noted that advertisers cannot show
advertisements or even hint in the advertisements at products which are
prohibited or banned by law.
Procedure for Filing a Complaint
A complaint received by the ASCI may be of any of the three types; the first
being complaints by the public at large which may include complaints by the
government. The second type being Suo motu complaints from the members of the
Board of Governors of ASCI or the Consumer Complaints Council. The last type
includes complaints by the advertisers.
Complaints to the ASCI can be made through any of the following means:
- A letter directed to the Secretary General of ASCI.
- Official email of ASCI.
- Registering a complaint online on the website of ASCI.
- Phone call.
All the complaints received are ultimately dealt with by the Consumer Complaints
Committee. When a complaint is received, the Secretary General shall acknowledge
it and ask for complaints from the advertiser against whom the complaint has
been filed. The parties involved shall be allowed to present their case, and a
decision shall be taken within a period of 4-6 weeks. If the Committee finds
that the advertisement is violative of the guidelines, it shall inform the same
to the parties within 5 days. The advertiser shall be given a period of 2 weeks
to make the necessary changes, failing which the ASCI will publish the
advertisement in its quarterly release which is circulated pan-India.
False and Misleading Advertisements
Anti-trust or competition law in India has provisions to protect the
consumers against "unfair trade practices". The Competition Act, 2002 prohibits
the making of any representation to the public which is false or misleading in a
"material respect". An unfair trade practice means the practice of promoting
sale, use or supply of any goods or services in a manner that involves an
"unfair method" or "unfair deceptive practice".
Rule 7(9) of the Cable Television Network Rules, 1994 provides that "No
advertisement which violates the standards of practice for advertising agencies
as approved by the Advertising Agencies Association of India, Bombay, from time
to time, shall be carried in the cable service."
Generally speaking, there can be said to be two categories of misleading
advertisements. The first kind pertains to the violation of the consumer's right
to information and to choose. Such advertisements relate to non-health issues
that can cause mental agony and, or financial loss to the consumer. For
instance, shampoo advertisements creating false sense of silkiness of hair, or
ads for vehicles making false claims of mileage etc. The second kind of
misleading advertisements include health and nutrition related claims, and they
are a violation of the right to safety of the consumer and can cause prejudice
to the health of consumers. Examples include medicines falsely claiming to cure
certain ailments etc.
Recent controversies regarding Misleading Advertisements
Recently, during the outbreak of the coronavirus pandemic, there have been a
number of instances where advertisers have received criticism over false
advertisements promising to offer enhanced protection against the coronavirus.
Some of such cases have been discussed here:
- The Dettol advertisement
In the present case, Hindustan Unilever, one of the major handwash selling
company move the court over a DETTOL advertisement by Reckitt Benckiser
which was trying to mock the effectiveness of Hindustan Unilever's product
LIFEBUOY soap. With a view to promote washing hands and to prevent the
spread of coronavirus, the plaintiff had advertised their LIFEBUOY soap.
Subsequently, the defendant company aired an advertisement about its DETTOL
handwash which was more effective than a regular soap, which was shown as a
red bar soap. Hindustan Unilever contended that the defendant tried to
degrade its product (LIFEBUOY) as its red color and shape was recognizable
in the advertisement.
The Bombay High Court in the impugned advertisement viewed that the
advertisement showed false claims and subsequently, Reckitt Benckiser
removed the advertisement in question.
- Arihant's Corona-Resistant Mattress
Recently, an FIR was logged against the Arihant Mattress, a private company
for its advertisement in a Gujrati newspaper for 'anti-corona mattress'. The
owner was booked under Section 505(2) of Indian Penal code which covers-
Statement conducing to public mischief and under various other sections of
Drug Remedies Objectional Act and Disaster Management Act. The said
advertisement was totally false and misguiding the people while the country
is going through a pandemic.
- Hindustan Unilever Hand Sanitizer Advertisement
Under the Drugs and Cosmetics Act, 1940 and Drugs and Cosmetics Rules, 1945;
the Drug Controller General of India (DCGI) issued a show cause notice to
Hindustan Unilever on its product which claims to boast the immunity and
also claiming to prevent Covid-19. It asserts to improve the immunity by
using its hand sanitizer which in turn prevents the virus.
According to DCGL, Section 3(b) of Drugs and Cosmetics Act 1940 says,
"immunity is a condition of being able to resist a particular disease
especially through preventing the development of a pathogenic microorganism
or by counteracting the effects of its products, adding that HUL's claim
attracts the given definition."
Also, Hand sanitizer was licensed under 'cosmetic' under the Drug and Cosmetics
Act, 1940 but now advertised as a 'drug' which was a clear breach of law.
Thus, DCGL contended that Lifebuoy's ad of hand sanitizer was false and
misleading in nature as the product cannot boost immunity against virus.
Conclusion
The big brands, to increase their capital tries to mislead the consumers through
ambiguous, false, and unfair advertisements without satisfactory evidence to
prove their claims and which manages to give an exaggerated positive view but
later turns out to be a negative experience for the consumers. Misleading
advertisements affects a consumer financially, mentally and even physically.
This negative experience can spread fear among the consumer, especially during
the time such as this present pandemic. As advertisements are effective in
marketing a product and has a strong impact on people, advertisers acquire a
moral duty to practice the code of ethical advertising and should abide by it
and for this ASCI plays a major role for consumers to protect them against
misleading advertisements.
To summarize, the Advertisement Standards Council of India is a
non-governmental, non-profit and self-regulatory body. Its role as a
self-regulatory body has recently received recognition from the apex court of
India. The ASCI has come a long way in restricting exaggerated and unfair claims
made by various advertising agencies. In light of the fact that driven by
financial and capital motives, brands often tend to mislead the public through
false and unfair advertising, the establishment of ASCI and enforcement of its
code is a welcome step in our society which furthers the interests of the end
consumer.
Written By: Bhaswat Prakash, Ajeenkya DY Patil University, Pune (B.A.LL.B)
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