Laws regulating Advertisements in India: All you need to know

INTRODUCTION

Advertising is at the heart of commercial speech, which the Supreme Court has declared to be a
fundamental right under Article 19(1)(a) of the Indian Constitution. Advertising, along with
other means of publicity, sales promotion, and public relations, is one of the means of mass
communication. Indeed, without its services in communicating with the public, many industrial
and business firms would be forced to close, their employers would be out of work, and the
economy would collapse. It delivers the most convincing selling at the lowest feasible cost,
implying that it is both a promotional message and a selling notion.

While numerous legal measures exist, there is no universal rule of law that deals with and covers
all aspects of advertising. So far, the sector has resisted efforts to establish an unified advertising
code or a single regulator. India, like many other countries, prefers self-regulation legislation for
ads. Self-management Laws are standards and codes that give rules for ethical and professional
advertising behaviour. These codes have been established by various authorities such as the
Advertising Standard Councils of India (ASCI), the Advertising Agencies Association of India
(AAAI), the Indian Newspaper Society (INS), and Doordarshan, and are used to guide
Advertisers, Advertising Agencies, the Public Sector, publication, and the Media.

LAWS AND ACTS RELATING TO ADVERTISEMENT

Advertising in India has seen a significant revolution. From the Doordarshan and Prasar Bharti
methods of advertising to current television channels and media, the government was obliged to
create various regulations to keep such advertisements in check, such as marketing an illegal
drug or pushing alcohol. The following laws are in charge of controlling deceptive advertising:

1. ADVERTISING AND THE CONSUMER PROTECTION ACT OF 1986

Section 6 of this act discusses the right to inform on the quality, amount, potency, purity, and so
on in order to safeguard against unfair commerce and practise. While section 2(r) of the act
defines unfair commercial practises, which include deceptive advertising and fraudulent
allurement.

2. THE CABLE TELEVISION REGULATIONS ACT OF 1995 AND THE CABLE

TELEVISION AMENDMENT ACT OF 2006
Section 6 of the legislation states that no person shall broadcast Advertisement through cable
service unless Advertisement is in accordance with Advertisement code. Rule 7 assures that the
advertisement code does not violate people's morals, decency, or religious beliefs.
3. ADVERTISING RESTRICTIONS UNDER THE CIGARETTE AND TOBACCO ACT
OF 2003
Section 5 of this legislation forbids both direct and indirect tobacco product advertising in all
forms of audio and visual media.

4. ADVERTISING REGULATIONS BASED ON THE DRUG AND MAGIC REMEDIES

ACT OF 1954 AND THE DRUGS AND COSMETIC ACT OF 1940
Section 29 imposes a penalty on anybody who uses a report of a test or analysis performed by the
Central Pharmaceuticals Laboratory for the purpose of advertising any drugs. The penalty for
such a violation is a fine of up to 500 rupees and imprisonment for up to ten years.

5. RESTRICTIONS ON ADVERTISING UNDER THE PRENATAL DIAGNOSTIC

TECHNIQUES (REGULATION AND PREVENTION OF MISUSE) ACT OF 1994.
YOUNG PERSON (HARMFUL PUBLICATION Statute 1956)-
This act prohibits advertising of prenatal sex determination accessible in genetic counselling
centres and laboratories. Section 3 of the Young Persons Act provides a penalty for creating
damaging advertisements.

6. THE INDIAN PENAL CODE AND THE CRIMINALITY OF ADVERTISEMENT

Advertising connected to crime, employing contract killers, inciting violence, and terrorism is
lawful and punished under the Indian Penal Code.

7. TRANSPLANTATION OF HUMAN ORGAN Legislation, 1994

This act prohibits the publication or advertising of any type of human organ and controls
assessment, stockpiling, and transplantation.

RELEVANT CASE LAWS

Over the course of the year, the courts have weighed in on what constitutes permissible
advertising. The Supreme Court investigated whether Tata Press was entitled to print telephone
directories and sell advertisements in its yellow pages in the landmark case of Tata Press Ltd v
Mahanagar Telephone Ltd (MTNL). While comparing advertisements or commercial speech to
the Fundamental Right to Free Expression as established in the Constitution, the court decided
that the protection extended to business organisations as well.

In another case, Bennett Coleman and Co and ors vs Union of India (1972), which challenged
the limits on the import of newsprint under the Import Control Order, 1955, the Supreme Court
ruled that share holders' fundamental rights as citizens are not lost when they create a
corporation.
In Havells India versus Amritanshu Kaitan (2015), the court determined that an advertisement
that compares a product with similar competing items must compare all of its qualities in order to
be regarded as honest.

THE INDIA ADVERTISING STANDARDS COUNCIL HAS BANNED ADVERTISE-

The Advertising Standards Council of India (ASCI) has upheld complaints against 200 deceptive
advertisements, including those from Hindustan Unilever Ltd, Dabur India, Uber, and Hindustan
Petroleum.

● According to the Consumer Complaint Council (CCC), Hindustan Unilever Ltd (HUL)
claims for their lever ayush soap based on 5000 years old Ayurvedic scriptures with 15
Ayurvedic herbs, among other claims, were poorly supported.

● Beganin Caraethes filed a lawsuit against Australian Drink Company. He claims to have
been a Red Bull regular for ten years but has not acquired any wings or exhibited any
evidence of better intellectual or athletic ability, despite the product's motto "Red Bull
gives you Wings."

● In 2014, the cosmetic company L'Oréal was compelled to confess that its L'Oréal Paris
Youth Code Skincare products had not been clinically shown to boost genes and offer a
visibly younger appearance, and it was thus barred from making claims about the
products without scientific evidence.

● According to the Telegraph, UK supermarket allegation Tesco was chastised in 2013 for
deceptive advertising strategy in the aftermath of its horse meat incident. The campaign
must be prohibited by the UK Advertising Regulator (ASA).

● According to the Telegraph, UK supermarket allegation Tesco was chastised in 2013 for
deceptive advertising campaign in the aftermath of its horse meat incident. The campaign
must be prohibited by the UK Advertising Regulator (ASA).

● New Balance, a sneaker brand, sells shoes that claim to help customers burn calories.
There was no Act of Advertising rules that affirmed such, and the shoe turned out to be a
hazard.

Conclusion

In India, various restrictions now govern the exhibition of indecent and deceptive
advertisements. In fact, most advertisements are overlooked by consumers and go undetected by
statutory bodies, therefore in order to enforce the restrictions, the need of the hour is for
regulators to take fast action if an advertising breaks public confidence.

The proposed Broadcasting Bill, 2007, is intended to significantly alter the advertising process.
The necessity for a Uniform Statutory Framework Regulating Advertising has become
increasingly pressing, and it is anticipated that the Nation's Legislature would soon recognise the
need for such codification of advertising regulations.