Prohibited and controlled advertising in India

Prohibited and controlled advertising

What products and services may not be advertised?

Products and services that may not be advertised are the following:

• tobacco, under the Cigarettes and other Tobacco Products Act;
• alcoholic beverages, under the Cable Television Network (Regulation) Amendment Bill;
• human organs, under the Transplantation of Human Organs Act 1994;
• magical remedies, under the Drugs and Magical Remedies (Objectionable Advertisements) Act 1954;
• for prenatal determination of sex, under the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994;
• prize chits and money circulation schemes, under the Prize Chits and Money Circulation Schemes (Banning) Act 1978;
• physicians, under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations; and
• legal services, under the Bar Council of India Rules, formulated under the Advocates Act.

Are certain advertising methods prohibited?

While there are no laws defining subliminal advertising or restricting such practice, misleading advertisements are banned.

What are the rules for advertising as regards minors and their protection?

According to the ASCI Code, advertisements addressed to minors shall not contain anything, whether in illustration or otherwise, that might result in their physical, mental or moral harm, or that exploits their vulnerability. For example, advertisements may not feature minors promoting tobacco or alcohol-based products; show minors using or playing with matches or any inflammable or explosive substances; or show minors playing with or using sharp knives or guns, the careless use of which could lead to cuts, burns, shocks or other injuries.

Are there special rules for advertising credit or financial products?

With specific reference to advertisements of financial products and services, the ASCI Code states that:

advertisements inviting the public to invest money shall not contain statements which may mislead the consumer in respect of the security offered, rates of return or terms of amortisation; where any of the foregoing elements are contingent upon the continuance of or change in existing conditions, or any other assumption, such conditions or assumptions must be clearly indicated in the advertisement.

According to the Reserve Bank of India’s guidelines, banks should also not promote schemes for zero per cent interest finance schemes by publishing advertisements in different newspapers and media indicating that they are promoting or financing consumers under such schemes. They should also refrain from linking their names in any form or manner with any incentive-based advertisement where clarity regarding interest rates is absent.

Are there special rules for claims made about therapeutic goods and services?

Under section 3 of the Drugs and Magical Remedies (Objectionable Advertisements) Act, there are specific laws that prohibit the advertising of certain drugs for the treatment of certain diseases and disorders. The Act also prohibits any individual or company from claiming they can cure diseases. The Act states that, unless prescribed by a registered medical practitioner, no person or company shall take part in the publication of an advertisement referring to any drug that claims to:

• produce miscarriages in women or prevent conception;
• maintain or improve capacity for sexual pleasure;
• correct menstrual disorders in women; or
• diagnose, mitigate, cure or prevent any disease specified in the Act.

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

The Food Safety Standard Authority of India also checks many products for misleading adverts. Section 24 of the Foods Safety and Standards Act states that:

• no advertisement shall be made about any food that is misleading or deceptive or that contravenes the provisions of the Act; and
• no person shall engage in any unfair trade practice for the purpose of promoting the sale, supply, use and consumption of articles of food or adopt any unfair or deceptive practice, including the practice of making any statement, whether orally, in writing or by visible representation, that:
• falsely claims that the foods are of a particular standard, quality, quantity or grade composition;
• makes a false or misleading representation concerning the need to consume the food; or
• gives the public any guarantee of the food’s efficacy that is not based on adequate or scientific justification.

What are the rules for advertising alcoholic beverages?

Advertising alcoholic beverages has been banned in India as per the Cable Television Network (Regulation) Amendment Bill, which came into effect on 8 September 2000. Private channels often permit alcohol companies to advertise using surrogate means, such as selling the brand name for soda or water or music.

What are the rules for advertising tobacco products?

According to clause 6 of the ASCI Code, tobacco products, alcohol and gambling are prohibited from being advertised. Advertisements for these products are made indirectly sometimes by purporting to be advertisements for other products. Indirect advertisement for these products and services is prohibited.

Further, the Cigarettes and other Tobacco Products Act prohibits advertisement of such products per se.

Are there special rules for advertising gambling?

With specific reference to gambling, advertisements for gambling in India are highly regulated on account of specific laws such as the Indian Contract Act 1872, the Lotteries (Regulation) Act 1998, the Public Gambling Act 1867 and the Indian Penal Code 1860. State governments have the power to promote or prohibit lotteries within their territorial jurisdiction.

Chapter III, Clause 6 of the ASCI states that an indirect advertisement for gambling (gaming) services is prohibited.

In judging whether an advertisement is an indirect advertisement for a product that is prohibited, attention must be paid to the following:

• the visual content of the advertisement must depict only the product being advertised and not the prohibited or restricted product in any form or manner;
• the advertisement must not make any direct or indirect reference to the prohibited or restricted products; and
• the advertisement must not create any nuances or phrases promoting prohibited products.

What are the rules for advertising lotteries?

The Lotteries Act provides a framework for organising lotteries in the country. Under this Act, the state governments have been authorised to promote as well as prohibit lotteries within their territorial jurisdiction. This Act also provides for the manner in which the lotteries are to be conducted and prescribes penalties in cases of breach of its provisions. Lotteries not authorised by the state have been made an offence under the Penal Code.

What are the requirements for advertising and offering promotional contests?

Indian law does not prohibit sales promotions by advertisers. However, sales promotions must meet the requirements of the ASCI Code. By making no express bar to ‘sales promotions’, the ASCI advises that advertisements shall not be framed so as to abuse the trust of consumers or exploit their lack of experience or knowledge. No advertisement shall be permitted to contain any claim so exaggerated as to lead to grave or widespread disappointment in the minds of consumers. For example, as per the ASCI Code, advertisements inviting the public to take part in lotteries or prize competitions permitted under law or that hold out the prospect of gifts shall state clearly all material conditions so as to enable consumers to obtain a true and fair view of their prospects in such activities.

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

There is no specific law in India that bars or governs product placement. The ASCI Code is also applicable to product placement. The Cable Television Network Rules, the Code for Commercial Advertising on Doordarshan and All India Radio and the Norms for Journalist Conduct issued by the Press Council of India, prohibit any advertisement directly or indirectly promoting the production, sale or consumption of tobacco products, alcohol or other intoxicants. However, some states allow advertising through billboards, signboards, etc, but this is subject to many restrictions. Also, the ASCI Code prohibits the use of minors for advertising alcohol products. Products that are banned from advertising may not be used to provide any kind of sponsorship. Also, misleading representation of sponsorship is an unfair trade practice under the Consumer Protection Act.

Briefly give details of any other notable special advertising regimes.

The ASCI does not accept and process complaints against political and non-commercial government advertising.

The ASCI’s self-regulation system is established as an industry initiative with the objective of regulating commercial communications (ie, advertising that directly or indirectly solicits the exchange of money for goods and services). The ASCI Code specifically states that ‘the code for self-regulation has been accepted by individuals, corporate bodies and associations engaged in or otherwise concerned with the practice of advertising in the best interests of the ultimate consumer’. Therefore, political and non-commercial government advertising attempting to influence voters does not come under the ambit of the ASCI.

It is important to the ASCI’s integrity that it is seen as an impartial adjudicator free from the perception of political bias. It is not possible to make decisions about whether a political or non-commercial government advertisement breaches the Code without the potential to be seen as taking a political viewpoint.

The ASCI has mandates from industry associations such as the Indian Society of Advertisers, the Advertising Agencies Association India and the Indian Broadcasting Foundation representing India’s advertisers, advertising agencies and media to self-regulate advertising content. The ASCI currently has no mandate to regulate government or political advertising. Complainants need to be aware that the ASCI is an industry-funded body. It is inappropriate for the ASCI to assume jurisdiction over the content of political or government advertising in the absence of political parties’ or the government’s support for such advertising to be regulated by the ASCI.

The ASCI recommends that anyone with a complaint against a political advertisement should write to the Election Commission of India. Complaints against a non-commercial, government-issued TV advertisement should be made to the Ministry of Information and Broadcasting, which is the regulator for TV content and press advertisements, or to the Press Council of India, which is the regulator for print content.