Prohibition & Restrictions on Advertising in India

INTRODUCTION

Advertisements have traditionally been the primary means of disseminating information. They instill a sense of believe or trust in people’s thoughts, which makes it easier for businesses to operate. Even today, advertisements are one of the most effective ways to promote a business, whether online or offline. Advertising helps to expand the brand in the market and to ensure the success of the brand. With the expansion of communication, we are continually influenced by the diversity of messages and images that intoxicate us through the most varied forms of media among them are advertising, with its strategic maneuvers. Advertising is a type of paid public announcement used to promote the sale of a product or service, as well as to advance an idea or achieve the advertiser’s desired result. Handbills, newspapers, magazines, billboards, letters, radio and television broadcasts, and motion pictures are all examples of this type of communication.

Advertising, along with personal selling, packaging, display, price, and product design, is frequently a part of a manufacturer’s marketing strategy. It is an important source of money for the various mediums of communication, as well as a means of offering information on products and services to their audiences. It is also an element of the retailer’s so-called marketing mix, together with display, store promotions, and so on. It is an important source of information about products and services for consumers. Every piece of advertising serves the basic purpose of drawing readers’, listeners’, viewers’, or observers’ attention to a product, a service, or an idea. As a result, anything that draws attention to an article, a service, or an idea can be classified as advertising.

LAWS ABOUT ADVERTISEMENT IN INDIA

In the last few years, advertising in India has undergone a significant shift, from Doordarshan-style advertising to modern television channels and publications. However, with increasing usage, such as the marketing of a prohibited substance, alcohol, or hazardous chemicals like cigarette tobacco, etc. The government was forced to pass several laws to keep such advertisements on checkpoints. At present, no central statutory body or uniform legislation controlling the advertising industry exists in India. A non-statutory body, the Advertisement Standards Council of India (ASCI), regulates and monitors the Indian advertising industry as a whole. It is essential for advertisers to ensure that an advertisement is in accordance with all local and national advertising laws in the absence of uniform integrated legislation.
ASCI has introduced a Code for Self-Regulation in Advertising (‘ASCI Code’) to govern advertising in India, which applies to anyone involved in the commissioning, production, placement, or publication of advertisements. This ASCI Code refers to advertising that’s read, heard, or displayed in India, albeit it originates or is written abroad, as long because it is addressed to consumers in India or to a large number of consumers in India.

THE FOLLOWING ARE SOME OF INDIA’S MOST IMPORTANT REGULATIONS WHICH COMPRISE ADVERTISING PROVISIONS
There are many Laws and Acts which regularises Advertising in India. Would like to focus on major regulations:

• The Cable Television Network Act, 1995 envisages that, unless such advertising is in conformity with the advertising code prescribed in the Cable Television Networks (Amendment) Rules, 2006- no person shall send or transmit any Advertisment through a cable service. The above provision, however, does not apply to foreign satellite channel programs that can be received without any specialized gadgets or decoders being used.
• The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 prohibits, in all types of audio, visual, and print media, both direct and indirect promotion of tobacco products.
• The Drug and Magic Remedies Act, 1954 & Drugs and Cosmetics Act, 1940 intended to control the advertisement of drugs in some situations and to prevent the advertising of remedies alleged to have magic qualities for certain purposes, and to provide for issues relevant to them.
• The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 & Young Persons (Harmful Publications) Act, 1956 prohibits pre-natal sex determination facilities available at any genetic counseling center, laboratory, clinic, or any other location.

PRODUCTS AND SERVICES PROHIBITED FROM ADVERTISING

1. Cigarettes and other tobacco products
   The promotion of cigarettes and other tobacco products is a blanket prohibition. It should not be displayed to demonstrate on any leaflet, pamphlet, or poster advertising any cigarette brand or tobacco product (Gutka, Chewing Tobacco) and should also not be seen on television and newspapers as this Act has an erroneous effect on the general public.
2. Human Organs
   Transplantation of (Human Organs and Tissues) Act, 1994 provides for the control of the removal, preservation, and transplantation of human organs for medicinal purposes, and for the prevention of trade of human organs. This legislation forbids any advertisement that encourages individuals to supply, offer to supply or pay for any human organ.
3. Magical Remedies
   Section 3 of Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 prohibits the advertisement of magical remedies for illnesses and disorders. The Act describes “magic remedy” as any human or animal talisman, mantra, amulet, or any other substance that is believed to have magical powers to heal, diagnose, prevent or alleviate disease.
4. Pre-Natal Determination Services for Sex
   Prenatal sex determination was outlawed in India in 1994, and under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, advertising of miraculous cures for diseases and disorders is forbidden. The Act seeks to stop sex-selective abortion, which “have its roots in India’s long history of strong patriarchal influence in all spheres of life” according to the Indian Ministry of Health and Family Welfare. In India, which is also another factor that led to its prohibition, prenatal sex determination has caused the child sex ratio to go down at alarming rates. Instead of the historically common Act of female feticide, there has been a replacement effect overtime of more families engaging in pre-natal sex determination.
5. Physicians
   Under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, issued under the Indian Medical Council Act, 1956, doctors are not permitted to advertise their services in any medium or form of advertisement by any means, as it is unethical to apply directly or indirectly to patients, to a doctor, to a group of doctors, or to institutions or organizations. (A doctor refers to a physician with an MBBS or MBBS certification with a postgraduate degree/diploma or similar qualification in any medical disciple
6. Legal Services
   The rules of the Bar Council of India, established under the Advocates Act 1961, strictly enforces the ban on ads and advertising rules regulating the websites of law firms. In order to attract buyers, these laws were enacted and implemented to curb misleading advertising by lawyers to gain attention.
7. Alcohol (Beer, Wine, and Spirits)
   Any advertising directly or indirectly promoting the manufacture, sale, or consumption of alcohol, liquor, or other intoxicants is prohibited by the Cable Television Network Regulations, 1994, the Advertising Codes of Doordarshan, and the All-India Radio and Guidelines for Journalist Conduct published by the Press Council of India. Some states, however, allow ads, albeit subject to several limitations, through billboards, signboards, etc.
8. Food and Health
   In accordance with the Section 24 of Food Safety & Standards Act, 2006, no advertising may be made concerning the norm, quality, quantity, or grade composition, and no representation relating to the need for, or usefulness of, any food that is deceptive or deceiving or that contravenes the provisions of this law or the rules and regulations contained therein.
9. Gaming (gambling, games of chance; differentiate between private-sector and “state” lotteries)
   In the Constitution of India, the federal system expressly grants the States the rights to legislate on “gambling and betting”. Gambling activities in India are banned under the Lotteries (Regulation) Act 1998, the Public Gambling Act 1867 and the Indian Penal Code 1860.
   The Public Gambling Act, 1867 provides for games of mere competence. The Information Technology Act, 2000 was also amended in April 2011 to ban websites for internet gaming and online betting. The Lotteries (Regulation) Act, 1998 gives the power to keep lotteries subject to specified conditions to the state government concerned. Under section 294-A of the Indian Penal Code, lottery advertising is punishable unless it’s in compliance with the Lotteries (Regulation) Act, 1998.
10. Religion
    Under the Cable Television Networks (Regulation) Act, 1994, Doordarshan & All India Radio Advertising Codes, and Norms Journalist Conduct released by the Press Council of India, advertising based on religion or hurting religious feelings is not permitted.
11. Securities
    The Securities and Exchange Board of India (Prohibition of Securities Market-related Fraudulent and Unfair Trade Practices) Regulations, 2003, released under section 30 of the Securities and Exchange Board of India Act, 1992, prohibits security trading that is fraudulent or unfair. Furthermore, those regulations specify that the selling of securities is considered to be a deceptive or unfair trade practice if it includes advertising which is misleading or contains information that is misleading and which may affect investors’ decisions.
12. Children’s Ads (advertising during and immediately before and after programming for children)
    Section 3 of the Young Persons (Harmful Publications) Act, 1956 prohibits advertisement related to any harmful publication, i.e. any publication that seeks to corrupt a young person (person under the age of 18) by causing or influencing him or her to commit crimes or Acts of violence or cruelty, or in any other way. Advertisements addressed to minors, according to the ASCI Code, shall not contain anything, whether illustrated or otherwise, that could result in physical, mental, or moral harm or exploit their vulnerability.
13. Surrogate Advertising
    The ASCI Code specifies that advertising products for which advertising is prohibited or restricted by law or by the ASCI Code cannot bypass such restrictions by arguing that advertising products for which advertising is not prohibited or restricted by law or by the ASCI Code are advertising products. In order to determine if there is indirect advertising of banned goods, due consideration must be paid to the following:
    • The visual content of the advertising must, in any form or manner, represent only the advertised product and not the prohibited or restricted product
    • No direct or indirect reference shall be made to prohibited or limited goods in the advertising
    • The advertising shall not establish any nuances or phrases that promote prohibited goods
    • Unique colors and layouts or presentations associated with banned or limited items must not be used in ads.
    • Advertising must not take advantage of conditions characteristic of the marketing of banned or limited goods while other products are marketed.
14. Free Speech (specific limitations, e.g. personal slurs, defamation, political statements)
    The right to freedom of speech and expression, which is also applied to an advertisement, is protected by Article 19(1)(a) of the Constitution of India. However, this freedom is also, like any other right subject to fair restrictions imposed by Article 19(2) of the Constitution of India.
    • In addition, the ASCI Code specifies that the following ads are not permitted
    • Any ethnicity, caste, color, creed, or nationality derides
    • Tendencies to encourage crime or promote disorder and violence or intolerance among people
    • Presents crime as desirable or encourages individuals, particularly minors, to imitate it or convey the modus operandi of any crime directly or indirectly
    • Affects friendly ties with a foreign state adversely.
15. Sponsorships
    Sponsorship is limited to providing any kind of sponsorship for products that are banned from advertising. Also, under the Consumer Protection Act, 1986, an unfair trade practice is a misleading representation of sponsorship.

REGULATIONS RELATED TO MEDIA CHANNELS

1. Billboard Advertising
   Jurisdictional municipal corporations’ control outdoor advertisement by billboards. However, the content of the commercial should comply with the ASCI Code and other relevant laws.
2. Advertising in Digital Media (websites, online advertising, Social Media Advertising)
   A variety of marketing, customer, privacy, and contract laws must comply with online advertising and website content, including social media platforms such as Facebook and Twitter. Online advertising should follow ASCI, the Indian Penal Code, the Information Technology Act, 2000, and other applicable regulations.
3. Advertising Newspaper
   The Norms for Journalist Conduct, a reference guide for the press, was provided by the Press Council of India, formed under the Press Council of India Act,1978. These requirements include advertising standards that are identical to those laid down in the ASCI Code and prohibit, inter alia, obscene advertising; advertising that promotes cigarettes, tobacco products, wine, liquor, and other intoxicants; advertising that damages religious or community sentiments; or any advertising that is prohibited by any other statute.
4. Periodic Publicity (regularly published print media: magazines, journals, newspapers)
   According to the Law of the Press Council of India, the word ‘newspaper’ means any printed periodical work containing public news or comments on public news and includes any other class of printed periodical work which may be notified by the Central Government in the Official Gazette from time to time in that name. As defined above, every newspaper must comply with the Standards for Journalist Conduct provided by the Press Council of India.
5. TV Advertising
   The advertising code issued under the 1994 Cable Television Network Regulations requires advertising carried on the cable service to comply with the country’s laws and not to violate subscribers’ morals, decency, or religious sensibilities. The regulations make television obligatory under the ASCI Code and state that no advertising in breach of the ASCI Code is to be shown on the cable service.
6. Telemarketing and Marketing with SMS
   Any individual or legal entity engaged in telemarketing or bulk Short Message Servicing (SMS) activities is required to register with the Telecom Regulatory Authority of India (TRAI) and is required to comply with the TRAI guidelines in this respect.
7. Advertisement by Radio & Doordarshan
   The Commercial Advertising Code for Doordarshan and All India Radio: All advertising for Doordarshan and All India Radio (‘AIR’) should comply with the code given for each Doordarshan and AIR by the Director General. These codes also require compliance with the ASCI Code and prohibit, in general, any advertising containing the following:
   • Criticism against friendly nations
   • Assault on faiths or populations
   • Obscenity An obscenity
   • Defamation
   • Inciting abuse or something toward the protection of law and order
   • Contempt of the tribunal
   • Aspersions against the president and the judiciary’s reputation
   • Anything that threatens the nation’s credibility
   • Criticism of any person by name.
8. Regulations from the Television Broadcasters Association
   The private TV news & current affairs broadcasters in India are represented by the News Broadcasters Association (‘NBA’). The NBA currently has 20 leading news and current affairs broadcasters (45 news and current affairs channels) as its members. Any broadcast (including advertising) should be in compliance with the NBA code of ethics, according to the News Broadcasting Standards Regulations (NBA Regulations) provided by the NBA.

CONCLUSION

It is highly important to provide a robust law/ legislation on ads in all types of media that will provide clarification on the matter and serve as a one-stop window on all matters relating to advertising. The advertising industry needs to be ethical, which means that they do not only advertise for the sake of financial interests but rather observe those ethics. It should be avoided to openly advertise alcohol, cigarettes, and other health-harming goods, unnatural medicines, etc.

The following ethical values must be observed by advertisement makers:

• It should be real.
• It should not be illegal.
• The community, particularly children, must not be misguided.

Disclaimer

The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. The content of this article is not intended to create and receipt of it does not constitute any relationship. Readers should not act upon this information without seeking professional legal counsel.