Advertising Laws in India

Smarak Samarjeet

‡ Advertising is a form of communication intended to persuade an audience (viewers, readers or listeners) to purchase or take some action upon products, ideas, or services. It includes the name of a product or service and how that product or service could benefit the consumer, to persuade a target market to purchase or to consume that particular brand. ‡ Advertising communication is a mix of arts and facts subservient to ethical principles. In order to be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead the consumer. If it so happens, the credibility is lost.

‡ In order to enforce an ethical regulating code. ASCI follows the following basic guidelines in order to achieve the acceptance of fair advertising practices in the interest of the consumer: ‡ · To ensure the truthfulness and honesty of representations and claims made by advertisements and to safe guard against misleading advertising. Inspired by a similar code of the Advertising Standards Authority (ASA) UK. the Advertising Standards Council of India was set up. . ‡ · To ensure that advertisement are not offensive to generally accepted standards of public decency.

‡ · To safeguard against indiscriminate use of advertising for promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large. . and ‡ · To ensure that advertisements observe fairness in competition so that the consumers need to be informed on choices in the market places and canons of generally accepted competitive behaviour in business are both served.

when in reality. This claim was found to be untrue since ZPTO is a micro biocide. besides. . dandruff is known to be caused by several other factors. HLL s multi-crore research wing clearly overlooked this aspect. the special ingredient in Clinic All Clear that stops dandruff.‡ Few Complaints filed with ASCI ‡ o HLL s Clinic All Clear Dandruff shampoo claimed that it had ZPTO. The advertisement has been withdrawn. microbes.

‡ Novartis India claimed that their disposable contact lenses ensure there is no protein build-up. The ad was discontinued. . The truth is that build up is a natural biological phenomenon with all contact lenses. This claim was found to be totally false.

1962. The Customs Act. imposes a similar prohibition on the transmission of obscene matter through the post. 1898. The Indian Post Office Act. .‡ Public morals and public policySec 292 and 293 of the IPC. prohibit the dissemination of any obscene matter. 1860. allows the detention and seizure of any obscene matter sought to be imported into the country.

leaflet. magazine.. It extends to the whole of India except the State of Jammu and Kashmir.(i) the commission of offences. . pam. ‡ Definitions. 1956An Act to prevent the dissemination of certain publications harmful to young persons. newspaper or other like publication which consists of stories told with the aid of pictures or without the aid of pictures or wholly in pictures. being stories portraying wholly or mainly. whether by inciting or encouraging him to commit offences or acts of violence or cruelty or in any other manner whatsoever. In this Act.phlet. or ‡ (ii) acts of violence or cruelty. in such a way that the publication as a whole would tend to corrupt a young person into whose hands it might fall.The Young Persons (Harmful Publications) Act. or ‡ (iii) incidents of a repulsive or horrible nature.(a) " harmful publication" means any book.

UDESHI Vs STATE OF MAHARASHTRA . He was convicted under s. Though the work as a whole must be considered. it was ruled that ³ in judging a work. but when the latter is substantially transgressed the former must give way. the test of obscenity was established. STATE OF MAHARASHTRA AND ORS. art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. It is necessary that a balance should be maintained between "freedom of speech and expression" and "public decency or morality". In this connection the interests of contemporary society and particularly the influence of the impugned book on it must not be overlooked. a bookseller. it held that there was no fixed rules to determine obscenity. stress should not be laid upon a word here and a word there. the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort. Indian Penal Code.´ And in CHANDRAKANT KALYANDAS KAKODAR v. 292. . or a passage here and a passage there. The appellant.³The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society. obscenity and art are mixed. Where. sold a copy of the unexpurgated edition of ³Lady Chatterley's Lover".‡ In RANJIT D.

. sound.The Indecent Representation of Women (Prohibition) Act. or is likely to deprave.It states that no person shall publish or cause to publish or cause to be published or arrange to take part in the publication or exhibition of any advertisement which contains indecent representation of women in any form. or derogatory to. her form or body or any part thereof in such way as to have the effect of being indecent. corrupt or injure the public morality or morals. wrapper or other document and also includes any visible representation made by means of any light. 'In the Act. circular. which means the depiction in any manner of the figure of a woman. 1986‡ The Act punishes the indecent representation of Women . label. smoke or gas. or denigrating women. advertisement' includes any notice.

The Commission has also suggested the addition of the word Derogatory along with indecent . label. let to hire. painting. wrapper or other document and also includes any visible representation made by means of any laser light. drawing. circulate or send by post any book. sound. poster. gas. film. smoke. circular. fibre. writing. representation or figure which contains indecent representation of women in any. . optic electronic or other media It states that no person shall produce or cause to be produced. paper.‡ The Amendment suggested by the National Commission for Women suggests to amend the definition to advertisement' includes any notice. photograph. pamphlet. sell. distribute. slide.

. and with fine which may extend to two thousand rupees. ‡ The event of a second or subsequent conviction with imprisonment for term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.‡ Any person who contravenes the provisions shall be punishable with imprisonment for a term which may extend to two years.

Aveek Sarkar. The report stated that the two actresses had failed to comply with earlier summonses for the same reason. and which allegedly violated the Indecent Representation of Women (Prohibition) Act 1986. The petitioner submitted that the paper had published "very sexy blow-ups and medium blow-ups" in its issues December 2005 and January 2006 issues. The petitioner further demanded that the images should be confiscated under the terms of the Press and Registration of Book Act 1867. ‡ In April 2006. published by the group in May 1993. ‡ Similar charges were raised against the Editor of Anandabazar Patrika. a Madurai court issued non-bailable warrants against Sen and Shilpa Shetty for "posing in an obscene manner" in photographs published by a Tamil newspaper. Young Persons (Harmful Publications) Act 1956. hence the issuance of the warrants. .‡ In the Kamasutra Advertisement. and the Publisher in a trial court in Kolkata relating to the reproduction of a nude photograph of former tennis player Boris Becker and his fiancée in Sportsworld magazine. Milind Soman and Madhu Sapre too had faced similar mix of charges. and the Indian Penal Code Section 292 (Sale of Obscene Books).

It extends to the whole of India. or in the title of any patent. calling or profession.The Emblems and Names (Prevention of Improper Use) Act. use or continue to use. 1950‡ An Act to prevent the improper use of certain emblems and names for professional and commercial purposes. or in any trade mark or design. for the purpose of any trade. except in such cases and under such conditions as may be prescribed by the Central Government. ‡ Notwithstanding anything contained in any law for the time being in force. . business. and also applies to citizens of India outside India. any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorized in this behalf by the Central Government. no person shall.

on 24/4/2003 . And Ors. Ravikanth Shinde vs Managing Director.Any person who contravenes the provisions of section 3 shall be punishable with fine which may extend to five hundred rupees. Gujarat Heavy Chemicals Ltd.

is picking up salt. This march was by way of protest against Salt laws and the respondents are selling their salt brand named as Dandi with a picture which is similar to the picture of Mahatma Gandhi and his followers taken at the time of Dandi march which has become so famous in the country for number of decades and that it is being taken almost as a sacred documentation of Mahatma Gandhi and freedom struggle. father of the nation. the trade mark Dandi itself gives an impression that it has to do something with the historical march started by the father of the nation Mahatma Gandhi during freedom struggle. The Hon¶ble Court did not find any merits in the matter." . The petitioner prays that respondent Nos. 1950. ‡ The case was dismissed citing that the contentions of the petitioner are misplaced.‡ This is a Writ petition filed by an Advocate in public interest. According to the petitioner. 1 and 2 be restrained from manufacturing. The petitioner contends that the pictorial representation and the name itself of the product sold by respondents 1 and 2 is in contravention of the Emblems and Names (Prevention of Improper Use) Act. stocking and marketing their product 'kitchen salt' under the trade mark of Dandi with pictorial representation in the background which creates an impression that Mahatma Gandhi. The petition is dismissed.

the enforcement of the Act by the state authorities is poor because one finds a number of advertisements in the print media. and gadgets to increase height.The Drugs and Magic Remedies (Objectionable Advertisements) Act. The Act also does not cover advertisements that appear in various media pertaining to health gadgets of unproven efficacy. As per the law. like tummy trimmers. . This Act does not provide for issuing corrective advertisements. 1954‡ It prohibits advertisements for products and services claiming to cure certain medical conditions. However. bands for blood pressure control. no advertisement should promise magical cure for any ailments or disease and the rules specify the diseases and ailments that cannot be advertised promising cure or remedies.

. and correction of menstrual disorders in women. Section 3 of the Act says that no person shall take any part in the publication of any advertisement promoting a drug or leading to the use of a drug for the procurement of miscarriage in women or prevention of conception in women.‡ As it stands. basically prohibits four kinds of advertisements pertaining to drugs and magical cures. 1954. the maintenance or improvement of the capacity of human being for sexual pleasure. the Drugs and Magic Remedies (Objectionable Advertisements) Act.

female diseases. cataract.‡ Section 3 further prohibits any advertisement promoting drugs for the diagnosis. rheumatism. disorders or conditions such as diabetes. dropsy. glaucoma. etc. epilepsy. high or low blood pressure. mitigation. obesity. disorder or condition specified in the Schedule. treatment or prevention of any disease. sterility in women. venereal diseases. cure. . fevers (in general). stature of persons. impotence. cancer. The schedule lists a number of diseases.

‡ Section 4 of the Act prohibits those advertisements relating to a drug if they contain any matter which directly or indirectly gives a false impression regarding the true character of the drug or makes a false claim for the drug or is otherwise false or misleading. Section 5 of the Act prohibits advertisements of magic remedies for treatment of certain diseases and disorders. .

‡ Violation of the law attracts imprisonment for six months or fine or both. Yet. RK Gupta advertised with impunity his clinic and claimed that he was offering a sure cure for epilepsy. he continued to advertise and the drug control departments failed to act. following a complaint from a consumer. ‡ Despite the Magic Remedies Act. the Indian Medical Association had declared him a quack after a committee had found that he was giving his patients toxic drugs in high doses. resulting in thousands of consumers falling prey to these advertisements. for first conviction and for subsequent conviction. imprisonment for a year or fine or both. way back in 2000. the Advertising Standards Council of India had held that the advertisement violated the Drugs and Magic Remedies (Objectionable Advertisements) Act. Then in May 2003. Ironically. .

e. where any element of deception is involved. ‡ Parle¶s mango drink µMaaza¶ gave the advertisement of Maaza mango and the MRTP issued a notice against Parle Exports Pvt. guarantee etc. in advertisements. where there is element of deception. 1969 ‡ Section 36 A of the Act deals with 5 major Unfair Trade Practices: ‡ Any misleading. ‡ Sales. ‡ All business promotion schemes announcing µfree gifts¶. ‡ Manipulating sales with a view to raising prices. µcontests¶. The company had to suspend production pending enquiry. false.) or oral (at the time of sale) actual or intended. Ltd.Monopolies and Restrictive Trade Practices Act. and wrong representation either in writing (i. warranty. . even if actual injury or loss is not caused to the consumer/buyer constitutes as unfair trade practices. etc. ‡ Violation of laws existing for protection of consumers. The advertisement implied that the soft drink was prepared from fresh mango while actually preservatives were added to it.

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