What are the different Advertising Regulations?

Advertising Industry in India is on the expansion spree for the last few years and has become a serious and big business growing at a considerable rate. However, the growth of this industry is affected by the prevalent malpractices carried out by advertisers in order to lure the consumers and sustaining an edge over the competitors. 

Advertisement is often described as commercial speech and enjoys protection under Article 19(1)(a) of the Indian Constitution. As a facet of the Right to Information, it facilitates the dissemination of information about the sellers and their products.

 However, the manner of facilitation is subject to a number of statutory provisions.

Under the Indian legal regime, the prominent, prohibitory legal provisions that regulate advertising are:

Obscene publication or advertisement of a lottery under the Indian Penal Code.   

Harmful publication under the Young Persons (Harmful Publications) Act, 1956.

The indecent representation of women under the Indecent Representation of Women (Prohibition) Act, 1986.

Use of report of test or analysis for advertising any drug or cosmetic under the Drugs and Cosmetics Act, 1940.

Inviting transplantation of organs under the Transplantation of Human Organs Act, 1994.

Advertisement of magical remedies of diseases and disorders under Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954.

Advertisements relating to prenatal determination of sex under the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.

Advertisements of cigarettes and other tobacco products under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.

Any political advertisement forty hours prior to polling time under the Representation of People Act, 1951.

Absence of a single comprehensive legislation had created a lot of confusion in the advertising industry. In 1985, a self regulatory mechanism of ensuring ethical advertising practices was established in the form of the Advertising Standards Council of India (ASCI), a non statutory tribunal. ASCI entertained and disposed off complaints based on its Code of Advertising Practice (ASCI Code). Gradually, the ASCI Code received huge recognition from the advertising industry. In August 2006, the ASCI Code was made compulsory for TV advertisements by amending the Cable Television Networks (Amendment) Rules, 2006: “No advertisement which violates the Code for Self-Regulation in Advertising, as adopted by the ASCI, Mumbai fro public exhibition in India, from time to time, shall be carried in the cable service.” This move has provided a binding effect on the ASCI Code. Rule 7 postulates that any advertisement which derides any race, caste and tends to incite people to crime, cause disorder or are indecent or vulgar. Further, section 6 of the Cable Television Networks (Regulation) Act, 1955 prohibits the transmission or re transmission of any advertisement through a cable service unless they are in conformity with the ASCI Code. The key objectives of ASCI code is to ensure that advertisements must –

Make truthful and honest representations and claims which is essential to prohibit misleading advertisements;

Not be offensive to public decency or morality;

Not promote products which are hazardous or harmful to society or to individuals, particularly minors; and

Observe fairness in competition keeping in mind consumer’s interests.

Under the ASCI Code, complaints against the advertisements can be made by any person who considers them to be false, misleading, offensive, or unfair. The complaints are evaluated by an independent Consumer Complaints Council (CCC). CCC decides on complaints from the general public including government officials, consumer groups, etc., complaints from one advertiser against another and even suo moto complaints from the member of the ASCI Board, CCC, or the Secretariat. The CCC usually decides upon the complaints within a period of 4 to 6 weeks once the party concerned is afforded an opportunity of presenting its case.

The Indian advertising is slowly recognizing the potential of web casting as well which is the transmission of video and audio content over the Internet, used for updating the news, weather or coverage of any selected events such as seminar, product launches or training. Though online advertising which is now also considered as Viral Marketing uses social networking sites, popular sites and industry specific portals to target audience. In order to target its audience, it considers the twin formula of demographic information and online behaviors of the user. Equally popular is the mobile advertising in India, which is growing like forest fire with increasing mobile connections in India.