In this era of competition ‘advertisement’ is an indispensable tool of marketing. It provides knowledge to the customers about the new products available in the market. Right of commercial advertisements and the right of public at large to receive ‘commercial speech’ is guaranteed under Art 19(1) (a) which deals with the Freedom of Speech and Expression. When the ‘Advertising Standards Authority’ and ‘Federal Trade Commission’ form the authority to lay down standards for advertisements in UK and US respectively, in India we do not have a statutory authority.
The advertisements in India are regulated by a non-statutory authority ‘Advertising Standards Council of India’. ASCI Code is applicable to all advertisements ‘read, heard or viewed’ in India if they are made with the object of exposing it to the consumers in India. ASCI consists of the Board of Governors having 12 members that includes members from the advertisers, advertising agencies and media, Consumer Complaint Council having 21 members and an independent secretariat of 5 members headed by the Secretary General. ASCI aims to ‘promote honest and representations’ in advertising in India thereby ensuring fair competition and protects the interest of both the advertisers and the public.
Apart from ASCI Code, the other rules and regulations in India are:
ü Consumer Protection Act, 1986: Section 6 of the Act deals with the objects of the Central Council to protect and promote the interests of the consumers. The consumer shall have the right to protection from marketing of goods which are hazardous to life and property, the right to have information about quality, quantity, potency, purity, standard and price of goods. And to have protection against unfair trade practices.
ü Indian Penal Code, 1860 : The Indian Penal Code classifies it as an offense the publication of certain obscene, defamatory matters and matters which may tend to corrupt persons who hear, read or see such matter having the relevant circumstances.
ü The Contract Act, 1872 : The contract for advertisements relating to matters contained in section 24 to section 30 of the Indian Contract Act is void and unenforceable.
ü Cable Television Network (Regulations) Act 1995 and Cable Television Network (Amendment) Rules 2006 : Section 6 of the Act and Rule 7 of the Cable Television Network (Amendment)Rules2006 lays down standards for advertisement in such network.
ü Indecent Representation of Women (Prohibition) Act, 1986 (Prohibition of Indecent representation of Women and Children Act, 2008) : Section 3 of the Act prohibits advertisements which makes indecent representation of women. Section 6 of the Act deals with punishment which gives a much greater punishment in case of second conviction.
ü The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003: Section 5 of the said Act deals with the prohibition of advertisement direct or indirect.
ü The Young Persons (Harmful Publications) Act, 1956 : According to section 3 of the Act if any person makes known to a young person that a harmful publication can be procured from or through any person he shall be liable to be punished with imprisonment or fine or both.
ü The Representation of the People (Amendment) Act, 1996 : Section 126 of the Act prohibits the display of any matter relating to election in the polling area during the period of 48 hours before the election.
ü The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1955 : This Act prohibits advertisement on certain drugs for treatment of certain diseases and disorders (section 3), prohibits misleading advertisements (section 4), advertisement of magic remedies (section 5), prohibition of export and import from and into the territorial extent of the Act any advertisement which are prohibited under section 3, section 4 and section 5 of the Act and the document having such advertisement shall be deemed to be goods which are prohibited for export and import under the Sea Customs Act 1878.
ü The Emblems and Names (Prevention of Improper Use) Act, 1950 : The improper use for professional and commercial purposes of the emblems and names which are mentioned in the schedule to the Act are prohibited under the Act.
ü The Competition Act, 2002 : Section 3 of the Act prohibits agreements entered into by any person, association of persons, or enterprise which causes or is likely to cause any adverse impact on competition in India. Chapter II of the Act deals with prohibition of such agreements.
ü Securities and Exchange Board of India (SEBI) (Stock-brokers and Sub-brokers) Rules, 1992 – Code of Conduct for Sub-brokers (Regulation 15) Part C clause 5 states that no stockholder shall advertise his business unless permitted by the stock exchange.
ü Securities and Exchange Board of India (SEBI) (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995 : Section 4(k) prohibits advertisement which contains a misleading information which tends to influence the decision of the investors and is considered fraudulent and as an unfair trade practice.
ü Securities and Exchange Board of India (SEBI) (Mutual Funds Regulation), 1996: SEBI Guidelines for Advertisements by Mutual Funds : Neither the offer document nor the advertisement shall contain any misleading statement (section 31). The sixth schedule deals with the ‘Advertisement Code’ dealing with the requirements of advertisements.
ü Securities and Exchange Board of India (SEBI) (Disclosure and Investor Protection Guidelines), 2000 : Chapter IX deals with ‘Guidelines to Advertisement’ stating that it should not be untrue, misleading, unfair and vague.
ü The Drugs and Cosmetics Act, 1940 : Section 18 of the Act prohibits the manufacturer from offer for sale distribute, stock or exhibit any drug or cosmetic which is not of a standard quality.
ü The Transplantation of Human Organs Act, 1994 : According to section 19 of the Act any person who publishes or distributes or cause to publish or distribute the advertisement of which invites persons to supply human organ for payment or offer to supply any human organ for payment or arranges any negotiations which render the supply or offer of the human organ for payment is liable to be punished with imprisonment for a term which may extent to seven years and fine which may extend to twenty thousand rupees.
ü The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 : Section 7 of the Act states that the advertisements relating to infant milk substitutes, feeding bottles and infant food which are intended to the knowledge of pregnant women should state information relating to the benefits and superiority of breast feeding, preparation for breast feeding, harmful effects due to partial adoption of breast feeding, health hazards due to the use of breast milk substitutes, etc.
ü The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 : Section 22 and section 23 of the Act provides for the prohibition and punishment for advertisements respectively. Section 22 prohibits any person, organization, genetic counseling center, genetic laboratory or a genetic lab which includes lab, clinic or center which are having the technology to determine the sex of the foetus, from issuing, publishing, distributing, communicating or cause the same in any form of advertisement.
ü The Civil Defense Act, 1968 : The Central Government can make rules by notification to prohibit the printing and publication of newspaper, books or document which contains matter prejudicial to civil defense and can demand security from any press in matters relating to printing and forfeiture of such publication.
Doordarshan/ All India Radio (AIR) Advertisement Code : Under the advertising code the AIR and Doordarshan has to ensure that the advertisements broadcasted should not mislead the listeners. The General Broadcasting Code prohibits the criticism of friendly countries, attack on religious communities, obscene and defamatory matters, incitement to do anything which is against the maintenance of law and order, anything which amounts to the contempt of court, anything which harms the reputation and integrity of the India, the President of India and the Indian Judiciary.
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