Need For Advertising Law in India: The Best Product in the Market

This article has been written by Shubhangi and is curated by Nandita Mishra, Chanakya National Law University.

H.G Wells has famously said, “advertising is legalized lying.” This shows the dilemma surrounding advertising and its effect on consumers. On an average, a person watches around 280-310 advertisements on a daily basis through one medium or the other. Although, we might not pay attention to advertisements consciously, yet sub-consciously they always impact our impressionable minds. For instance, while we might not have made concrete steps towards memorizing jingles or catchy taglines, we have definitely been caught singing our hearts out to “doodh si safedi nirma se aaye, rangeen kapde bhi khil khil jaye, sabki pasand nirma, washing powder nirma“, with our siblings. Nobody took any special efforts to learn the above tagline but it’s naturally embedded in our memories due to the number of times we have watched the instant advertisement. Such are the far-reaching effects of advertisements on our minds which accords them crucial status, consequently, making laws related to them also a critical issue.

While the above might be a non-harmful version of advertisements impacting us, in several instances, advertisements tend to exaggerate, promote stereotypes and put forward misinterpreted facts which promotes narratives and lend them a helping hand in percolating deeper in the social fabric of the society. This is precisely why we need specific laws to regulate the same. Several countries, have specific laws and legislations governing the issue at hand. Many countries in Europe do not allow advertising for kids below a certain age. In the U.K. and U.S, there is ‘Advertising Standard Authority’ and ‘Federal Trade Commission’ which lays down standards related to controlling and maintaining advertising in their respective countries.

In India, advertisements hold a very pertinent role in the growth of the nation as a developing country. India’s economy is growing every minute and advertisements play a crucial role in impacting the economy and commercial growth. Advertisements generally help in the sales of products or services by making customers aware of the product and persuading them to consume the product and avail the services. The ideal aim of advertisements is to give consumers information about the products so that consumers can make informed decisions. But on occasions, they make over-reaching attempts and start exaggerating and misleading the consumers. Hence there arises a need for stricter provisions to keep these advertisements in check from manipulating people in the wrong direction. These misleading advertisements not only lead to unhealthy competition in the market but also violate the basic rights of consumers.

There is no statutory agency or uniform legislation to govern or regulate advertising in India. But there is “a self-regulatory and non-statutory” council known as Advertising Standard Council of India (ASCI). This council was established in 1985 to promote responsible advertising and to enhance public confidence in advertisements. It lays down codes for self-regulation in the advertising industry. They have adopted the ASCI code which has been accepted by the individuals, corporate bodies, and associations concerned with advertising. The ASCI does not have any statutory powers, thus it always leaves the advertisers and the businesses associated with it with the choice to either comply with the code or do otherwise .

According to ASCI complaints can be made against any person or industry. The complaints are considered and decided by the Consumer Complaints Council (CCC). The advertiser against whom such complaint is made is asked to either withdraw or modify the advertisement according to the specified standards. If the advertiser does not cooperate, then a one-sided decision is taken. ASCI is bound to comply with the decision of CCC, but not others. The process is time-consuming and by the time the issue is resolved, in all likelihood, the advertisement is said to have already impacted the targeted audience. ASCI is not enough to deal with such a huge problem. It lacks in ability, maintainability, enforcement and standard wisdom to tackle the issue in its entirety. Hence there is a need for stricter and organized legislation to keep a check on the advertising industry.

There are other legislations in India for the advertising industry but they lag behind in some way or the other. For example:

• Consumer Protection Act, 1986: Section 2 (r) of the act provides for the definition of ‘unfair trade practices’ which further covers a segment of false and misleading advertisement which influences people in wrong ways and leads to various arguments. Section 6 of this act also provides the consumers with the right to know about the quality, quantity, standards of product, etc. in order to protect consumers and let them make informed decisions.
• Cable Television Networks (Regulations) Act, 1995 and Cable Television Networks (Amendment) Rules, 2006: Under section 6 of this act, no person can transmit or re-transmit any advertisement through cable service which is not verified under the advertisement code prescribed under the instant rules. The advertisement code is set up in order to ensure that any advertisement does not offend decency, morality, and religious sentiments of individuals.
• Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003- Section 5 of this Act, inter alia, prohibits both direct & indirect advertisement of tobacco products in all forms of audio, visual and print media.
• Doordarshan/ All India Radio (AIR) Advertisement Code- Doordarshan and AIR, both under the control of Prasar Bharati (a statutory autonomous body established under the Prasar Bharati Act), follow a comprehensive code for commercial advertisements which control the content and nature of advertisements that can be relayed over the agencies.
• Young Persons (Harmful Publications) Act, 1956- Section 3 of the Act, among other things, also imposes a penalty for advertising or making known, by any means, whatsoever, where any harmful publication (as defined in the Act) can be procured from or through any person.
• Indian Penal Code, 1806- The IPC, vide an array of provisions, prohibits obscene, defamatory publication, the publication of a lottery and/ or statements creating or promoting disharmony/ enmity in society.

All these laws attempt at providing provisions for regulating advertising in a complete sense. But these are fragmented legislations which try to cover a wide area of topic. With the growing market and increasing consumers, we need to have stricter provisions so as to protect consumers from fraudulent, unfair, and deceptive business practices. There is a need for well-researched, well-equipped, and well-formulated legislation that will cover every single aspect of advertising and other topics related to it, while giving a broader perspective to this industry.