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Detailed Analysis Of The Advertising Standards Council Of India: ASCI

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:
  1. That advertising claims are presented with truthfulness and honesty, and that no misleading and false claims are made.
  2. 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.
  3. That no advertisement is made in respect of products or services regarded as hazardous or unacceptable to individuals or to the society.
  4. 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:
  1. 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.
  2. 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:
  1. False advertising
  2. Misleading advertising
  3. Indecent advertising
  4. Illegal advertising
  5. Advertising leading to unsafe practices
  6. Advertisements unfair to competition
ASCI's codes and Guidelines
ASCI's codes and guidelines regarding the brand extensions are:
  1. 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.
  2. 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.
  3. It must have a proper certificate from an independent organization for such turnover and distribution data.
  4. 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:
  1. A letter directed to the Secretary General of ASCI.
  2. Official email of ASCI.
  3. Registering a complaint online on the website of ASCI.
  4. 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:
  1. 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.
  2. 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.
  3. 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.

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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