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Legislation and regulation

Legal framework

What are the principal statutes regulating advertising generally?

The Advertising Standard Council of India (ASCI) is a voluntary, self-regulatory council established in 1985 to promote responsible advertising and to enhance public confidence in advertisements. Complaints against misleading advertisements can be filed with this body. Adverts that contravene the provisions of the following acts of the government or various state governments are not acceptable:

  • the ASCI’s Code for Self-Regulation 1985 (the ASCI Code);
  • the Code for Commercial Advertising on Doordarshan and All India Radio;
  • the Drugs and Magic Remedies Act 1954;
  • the Emblems and Names Act 1950;
  • the Indecent Representation of Women Act 1986;
  • the Trademarks Act 1999;
  • the Consumer Protection Act 1986;
  • the Cable Television Network Amendment Act 2011;
  • the Drugs and Cosmetics Act 1940;
  • the Prize Competitions Act 1955;
  • the Press Council Act 1978;
  • the Cable Television Network Rules 1994;
  • the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002;
  • the Bar Council of India Rules formulated under the Advocates Act 1961;
  • the Cigarettes and other Tobacco Products Act 2003; and
  • the Food Safety and Standards Act 2006.

By a similar analogy, any advert that violates any statutory provision of law or is misleading to any interest can be looked into.

Regulators

Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?

The primary regulatory body responsible for issuing advertising regulations and enforcing rules on advertising is the ASCI (www.ascionline.org). In addition to the ASCI, courts can be approached on issues of consumer interest, disparagement, false claims, intellectual property violations or moral grounds. Courts have a judicial role and their orders are binding, while the ASCI is more akin to a regulator that would recommend alterations or amendments to, or the removal of, adverts, but would not, for example, pass any damages or injunction relief or rendition of accounts.

With the recent judgment of the Delhi High Court in Metro Tyres Ltd v the Advertising Standards Council of India and Others 2017 (70) PTC 394 (Del), the scope of powers of the ASCI has been enhanced. It has been given the power to adjudicate upon matters concerning infringement and passing-off in an advertisement.

Regulators’ powers

What powers do the regulators have?

On receipt of a complaint, the Secretariat of the ASCI acknowledges the complaint and requests the advertiser or agency to provide comments in respect of the complaint. The Consumer Complaints Council (CCC) usually decides upon the complaints within four to six weeks of the party concerned being afforded the opportunity to present its case. If the complaint is upheld, the advertiser and its agency are informed of the CCC’s decision within five working days. The advertiser is given two weeks to comply with the CCC’s decision. Details of non-compliant advertisements are published in the ASCI’s media quarterly release throughout India.

Further, the ASCI has also been given the power to adjudicate in matters concerning infringement and passing off. Any appeal to such matters may be taken to the courts.

Regulators’ priorities

What are the current major concerns of regulators?

The ASCI Code contains basic guidelines for all advertisements to ensure the following:

  • the truthfulness and honesty of representations and claims made by advertisements to safeguard against misleading advertisements;
  • that advertisements are not offensive and do not contain anything indecent, vulgar or repulsive that is likely, in the light of generally prevailing standards of decency and propriety, to cause grave or widespread offence;
  • the safeguarding against the promotion of products that are regarded as hazardous or harmful to society or individuals, particularly minors, to a degree or of a type that is unacceptable to society at large;
  • that advertisements observe fairness in competition so that the consumers’ need to be informed on choices in the marketplace and the standards of generally accepted competitive behaviour in business are both served; and
  • in matters concerning celebrity endorsements, celebrities are expected to have adequate knowledge of the Codes and it is the duty of the advertiser and the agency to make sure that the celebrity they wish to engage with is made aware of them. Testimonials, endorsements or representations of opinions or preference of celebrities must be genuine.

Industry codes

Give brief details of any issued industry codes of practice. What are the consequences for non-compliance?

There are different codes for different industries. Some of the key industries are discussed below.

Pharmaceutical industry

The advertising of medicines is controlled by the code of ethics framed by the Indian Board of Alternative Medicines and is as follows.

A practitioner should not attempt to advertise him or herself in any way except by the legitimate means of proficiency in his or her work and by skill and success in his or her practice. It is unethical for a practitioner to insert any advertisement in the public press or issue any card or circular relating to his or her profession or the clinical practice, except for the following:

  • on commencing practice;
  • on changing his or her address;
  • on temporary absence from practice;
  • on resumption of practice;
  • on disposal of practice;
  • on succeeding to another practice;
  • on entering or retiring from a partnership; or
  • if a colleague leaves the practice.

A medical journal advertisement must be as simple and direct as possible. Every advertisement shall be ‘run on’, without spacing and without display. The type shall be that ordinarily used for articles.

Letters or abbreviations indicating all other qualifications may be added. A statement of specialism may be included only if that specialism has constituted the practice of the healer for at least five years.

It is unethical for any practitioner to permit his or her name to be used in any material relating to diseases or their treatment that is published in the public press or broadcast on radio or television. Approval may be given by the Indian Board of Alternative Medicines, on application, to waive this rule when departure from anonymity is in the public or professional interest.

No interview with a media reporter on subjects relating to diseases and their treatment should be given by a practitioner, and the following additional rules also apply:

  • the name of the practitioner interviewed should not be published, nor should his or her identity be revealed, in any report published of the interview, except with the approval of the Indian Board of Alternative Medicines or an authorised organisation;
  • if possible, a copy of the report proposed to be published should be submitted for prior approval; and
  • the practitioner interviewed should not imply that he or she has superior ability over other practitioners.

Public lectures or addresses to lay audiences may be given on professional subjects to promote alternative medicines.

No practitioner, except with the approval in writing of the Indian Board of Alternative Medicines, shall have his or her name plate affixed anywhere except at his or her residence and on the premises where he or she treats patients.

Name plates shall be unostentatious in size, lettering and form, and may bear the practitioner’s name, qualification and practice hours. A statement of specialty may appear only if that specialty constitutes the sole practice of the practitioner. Practitioners may display their titles, after confirmation, in addition to their clinical qualifications.

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 produces a miscarriage in women or prevents conception, or that maintains or improves capacity for sexual pleasure.

Non-compliance may lead to the following consequences:

  • the practitioner’s name may be removed from the medical register maintained by the Board by reasons of conviction of an indictable offence or infamous conduct in a professional respect;
  • the Indian Board of Alternative Medicines shall have the power to deregister any practitioner for conduct that is likely to bring the profession or the Board into disrepute, or on the grounds that the practitioner has wilfully and persistently refused to comply with the rules, articles or by-laws of the Board;
  • an expelled practitioner shall be liable to pay all sums due from him or her to the Board at the time of his or her expulsion; and
  • no canvassing for membership of any professional society is allowed. This rule must be strictly followed at congresses and symposia.

Insurance industry

In exercise of the powers conferred by section 26 of the Insurance Regulatory and Development Authority Act 1999, the Insurance Regulatory and Development Authority of India, in consultation with the Insurance Advisory Committee, hereby makes the following regulations:

  • every insurance company shall be required to prominently disclose in the advertisement, and that part of the advertisement that is required to be returned to the company or insurance intermediary or insurance agent by a prospective insured or an insured, the full particulars of the insurance company, and not merely a trade name or logo; and
  • where benefits are more fully described, the form number of the policy and the type of coverage shall be disclosed fully.

If an advertisement is not in accordance with these regulations the ASCI may take action in one or more of the following ways:

  • issue a letter to the advertiser seeking information within a specific time, not more than 10 days from the date of issue of the letter;
  • direct the advertiser to correct or modify the advertisement already issued in a manner suggested by the Authority with a stipulation that the corrected or modified advertisement shall receive the same type of publicity as the one sought to be corrected or modified;
  • direct the advertiser to discontinue the advertisement; or
  • any other action considered appropriate by the Authority to ensure that the interests of the public are protected.

The advertiser may seek additional time from the Authority to comply with the directions. The Authority may, however, refuse to grant an extension of time if it feels that the advertiser is seeking only to delay matters. Any failure on the part of the advertiser to comply with the directions of the Authority may result in the latter taking action as necessary, including levying a penalty.

The ASCI also has specific guidelines for other industries, including the following.

The automobile industry

Advertising within the automobile industry must not:

  • portray violation of the Traffic Rules;
  • show at speed manoeuvres in a manner that encourages unsafe or reckless driving, which could harm the driver, passengers or the general public; or
  • show stunts or actions, which require professional driving skills, in normal traffic conditions that, in any case, should carry a readable cautionary message drawing viewer attention to the depiction of stunts.

The food and beverage industry

Some examples of the sector-specific guidelines for the food and beverage industry include the following:

  • advertisements should not be misleading or deceptive, and, specifically, they should not mislead consumers to believe that consumption of the product advertised will directly result in personal changes in intelligence, physical ability or exceptional recognition;
  • claims made in advertisements should be supported and substantiated with evidence and with adequate scientific basis and advertisements that include information that the consumer, acting reasonably, might interpret as health or nutritional claims shall be supported by appropriate scientific evidence and must meet the requirement of basic food standards laid down under the Food Safety Standards Act and Rules, wherever applicable;
  • advertisements should not disparage good dietary practice or the selection of options, such as fresh fruits and vegetables that accepted dietary opinion recommends should form part of a normal diet, and advertisements should not encourage over or excessive consumption or show inappropriately large portions of any food or beverage. Certain advertisements for food or beverages, unless nutritionally designed as such, should not be promoted or portrayed as a meal replacement;
  • advertisements should not undermine the importance of healthy lifestyles or mislead as to the nutritive value of the food or beverage and should not undermine the role of parental care and guidance in ensuring proper food choices are made by children;
  • claims in advertisements should not be inconsistent with information on the label or packaging of the food or beverage; and
  • advertisements for food and beverages should not claim or imply endorsement by any government agency, professional body, independent agency or individual in a particular profession in India unless there is prior consent, the claim is current, the endorsement is verifiable and the agency body is named.

Educational institutions and programmes

Some examples of the sector-specific guidelines for the advertising of educational institutions and programmes include the following:

  • advertisements shall not state, or lead the public to believe, that an institution or course or programme is official, recognised, authorised, accredited, approved, registered, affiliated, endorsed or has a legal defined situation, unless the advertiser is able to substantiate this with evidence;
  • an advertisement offering a degree or diploma or certificate that, by law, requires to be recognised or approved by an authority shall have the name of that authority specified for that particular field;
  • if the advertised institution or programme is not recognised or approved by any mandatory authority, but is affiliated to another institution that is approved or recognised by a mandatory authority, then the full name and location of the said affiliating institution shall also be stated in the advertisement;
  • the name of the affiliating institution shall not be less than 50 per cent of the font size of the name of the advertised institution or programme in visual media such as print, internet, hoarding, leaflet, prospectus etc, including television. In audio and audiovisual media, such as radio or TV, the name of the affiliating institution (if applicable) must be stated;
  • advertisements shall not state, or lead the public to believe, that enrolment in the institution or programme, preparation course or coaching class will provide the student with a temporary or permanent job, admission to institutions, job promotions or salary increase unless the advertiser is able to submit substantiation to such effect. In addition, the advertisement must carry a disclaimer stating ‘past record is no guarantee of future job prospects’. The font size of the disclaimer should not be less than the size of the claim being made in the advertisement;
  • advertisements shall not make claims regarding the extent of course passes achieved, the highest or average salary achieved by graduates, the enrolment of students, the admission of students to renowned educational institutions, marks and rankings of graduates, testimonial of top students, the institution’s or its programme’s competitive ranking, the size and qualification of the institution’s faculty, its affiliation with a foreign institution, or its infrastructure, unless these claims are from the latest completed academic year and substantiated with evidence;
  • advertisements stating the competitive ranking of the institution or its programme shall also provide the full name and date of the publication or medium that released the rankings, and the testimonial of top students in an advertisement shall be from students who have participated in the testimony programme, exams or subject from the advertising institution only; and
  • any visual of an institution’s infrastructure shown in advertisements shall be real and existing at the time of advertisement’s release.

Authorisation

Must advertisers register or obtain a licence?

Most companies have self-regulation guidelines, standards and policies to which their adverts must adhere. Companies also review their adverts to be sure any claims made are reasonable and verified and do not mislead or deceive consumers.

The ASCI is a voluntary self-regulatory council, registered as a not-for-profit company under section 25 of the Companies Act. The members of the ASCI are firms of considerable repute within the advertising industry in India and comprise advertisers, media companies, advertising agencies and other professionals connected with advertising practice. The ASCI Code regulates misleading and false advertisements. See question 4 regarding the particulars of the Code.

Clearance

May advertisers seek advisory opinions from the regulator? Must certain advertising receive clearance before publication or broadcast?

The ASCI offers pre-production or pre-release advertising advice to its members. A panel has been formed of experienced persons who have close knowledge of the ASCI Code and rules, and experience in the workings of the ASCI Board and its CCC. The form that advertising advice takes may vary, but it has two essential characteristics: it is non-binding and it concerns a specific advertising proposal.

Private enforcement (litigation and administrative procedures)

Challenging competitors advertising

What avenues are available for competitors to challenge advertising? What are the advantages and disadvantages of the different avenues for challenging competitors’ advertising?

Competitors may challenge advertising through the ASCI for disparagement, unfair claims, dilution, violation of any statutory law or intellectual property law. In cases of defamation, recourse to the court is available. The advantages and disadvantages of different avenues to challenge advertising are that procedures with the ASCI are quicker and less costly, but they are regulatory, whereas procedures in courts have judicial authority, are enforceable with a penalty for violation and also apply to non-members of the ASCI. However, following a recent Delhi High Court judgment, the ASCI has been given a statutory flavour by recognising its compliance by advertisers under Rule 7(9) of the Cable Television Network Rules 1994.

Public challenges

How may members of the public or consumer associations challenge advertising? Who has standing to bring a civil action or start a regulatory proceeding? On what grounds?

As a general rule, the ASCI does not disclose the identity of the complainant. Under the ASCI Code, complaints against advertisements can be filed from a cross-section of consumers and the general public, and this covers individuals, advertising practitioners, advertising firms, the media, advertising agencies and ancillary services connected with advertising. There are three types of complaints handled by the ASCI: complaints from the general public, including government officials, consumer groups, etc; suo motu complaints from the members of the ASCI Board, the CCC or the Secretariat; and intra-industry complaints (ie, complaints by one advertiser against another).

The grounds on which complaints are filed include specific claims or visual depictions that are considered to be false, misleading or objectionable and the reasons for the same.

Burden of proof

Which party bears the burden of proof?

The party that filed the action (whether a criminal complaint by the state’s attorney, or a civil lawsuit by a private party) bears the burden of proof.

Remedies

What remedies may the courts or other adjudicators grant?

Injunctions or damages are the remedies that courts or other adjudicators can grant. Injunctions may be obtained on the first day.

Length of proceedings

How long do proceedings normally take from start to conclusion?

The duration of proceedings depends on the courts, the complexity of the case and the matters involved. Interim relief may be granted on the first day. The parties also have the option of expedited trial.

Cost of proceedings

How much do such proceedings typically cost? Are costs and legal fees recoverable?

The total cost for filing a lawsuit can range from 200,000 to 120,000 rupees. Legal fees and costs may be recoverable if the courts grant punitive damages to the plaintiff.

As in case of the ASCI, registering a complaint is free of charge to the consumer and all other complainants except in the case of intra-industry (ie, among ASCI members) complaints lodged under the Fast Track Complaint Redressal scheme, where decisions are delivered by the Fast Track Complaint Council within seven days, and a fee of 75,000 rupees is charged to the complainant.

Appeals

What appeals are available from the decision of a court or other adjudicating body?

Appeals available from the decision of a court depend on the hierarchy of the court in which they are filed. The hierarchy is (from lower to higher) district courts, High Courts (some with original jurisdiction) and the Supreme Court.

Misleading advertising

Editorial and advertising

How is editorial content differentiated from advertising?

‘Editorials’ technically refers to opinion articles in newspapers. Since the vast majority of blogging falls into the ‘opinion’ category, ‘editorial blog content’ has come to mean posts that the blogger has posted out of genuine interest, in an unpaid capacity. On the other hand, advertising content is content that the author has been paid to produce. This is usually negotiated in advance. The brand will have certain parameters and goals for the post. Advertisers may compromise accuracy or try to manipulate content, but at least there is no ambiguity regarding their motivation: they are driven by profit.

Advertising that requires substantiation

How does your law distinguish between ‘puffery’ and advertising claims that require support?

False or misleading advertisements, or advertisements that create false associations, are prohibited by law, namely the Trademarks Act, the Consumer Protection Act and the ASCI Code. The advertisers can use superlatives (puffery) to boost the merits of their products, such as ‘the best’, ‘number 1’ or ‘the greatest’. However, where advertising claims are expressly stated to be based on, or supported by, independent research or assessment, the source and date of this should be indicated in the advertisement.

Rules on misleading advertising

What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?

Under the ASCI Code, general rules regarding advertising are to ensure the truthfulness and honesty of representations and claims made by advertisements, and to safeguard against misleading advertisements. In addition, the advertisement must carry a disclaimer stating ‘past results are no guarantee of similar future outcomes and results may vary’. The font size of the disclaimer should not be less than the size of the claim being made in the advertisement and it is also specified that such disclaimers should not be in italics.

Disclaimers can ‘expand or clarify a claim, make qualifications, or resolve ambiguities, to explain the claim in further detail, but should not contradict the material claim made or contradict the main message conveyed by the advertiser or change the dictionary meaning of the words used in the claims received or perceived by a consumer’.

Substantiating advertising claims

Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?

All descriptions, claims and comparisons that relate to matters of objectively ascertainable facts should be capable of substantiation. Advertisers and advertising agencies are required to produce such substantiation as and when called to do so by the ASCI.

Survey results

Are there specific requirements for advertising claims based on the results of surveys?

Where advertising claims are expressly stated to be based on or supported by independent research or assessment, or the results of a survey, the source and date of this should be indicated in the advertisement under the ASCI Code. Surveys should be conducted by a reliable source so as to be credible and should be backed by evidence to prove their authenticity.

Comparisons with competitors

What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?

Comparative advertising is allowed to some extent in India. A trader is entitled to compare his or her goods with the goods of another trader and to establish the superiority of his or her goods over that of others, but while doing so, the courts in India have upheld that the advertiser cannot say that the goods of the competitor are inferior, bad or undesirable. If any such statement is made, it would be an act constituting ‘product disparagement’, which is not allowed. The ASCI Code also requires that advertisements shall not make unjustifiable use of the name or initials of any other firm, company or institution, or take unfair advantage of the goodwill attached to the trademark or symbol of another firm or its product, or the goodwill acquired by its advertising campaign.

Section 29(8) of the Trademarks Act states that a registered trademark is infringed by any advertising of that trademark if such advertising:

  • takes unfair advantage of and is contrary to honest practices in industrial or commercial matters;
  • is detrimental to its distinctive character; or
  • is against the reputation of the trademark.

However, section 30(1) creates an exception to such infringement, namely that a trademark is not infringed where the use of the mark is in accordance with honest practices in industrial or commercial matters or the use is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trademark.

Test and study results

Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?

Yes, claims suggesting tests and studies prove a product’s superiority require proof. Where advertising claims are expressly stated to be based on or supported by independent research or assessment, the source and date of this should be indicated in the advertisement under the ASCI Code. Surveys should be conducted by a reliable source so as to be credible and authentic.

Demonstrating performance

Are there special rules for advertising depicting or demonstrating product performance?

There are no specific rules or provisions that require an advertiser to mandatorily demonstrate product performance. However, in case an advertisement depicts the performance of a product, such a demonstration must be true and factual, otherwise a consumer complaint may arise regarding the difference in the performance of the product as claimed by the owner in an advertisement when compared to the performance of the same product in the hands of a consumer. An advertisement is misleading if it creates, increases or exploits a false belief about expected product performance. Advertisements are also considered misleading if they create a false impression, even if everything stated in the advertisement may be literally true. Misleading advertising occurs when a claim about a product or service is materially false or misleading, in an attempt to persuade the consumer to buy it.

Third-party endorsements

Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief or experience?

To ensure the truthfulness and honesty of representations and claims made by the advertisements and to safeguard against misleading advertisements, the ASCI Code requires that the advertisement shall not, without permission from the person, firm or institution referred to, contain any reference to such person, firm or institution that confers an unjustified advantage on the product advertised or tends to bring the person, firm or institution into ridicule or disrepute. If and when required to do so by the ASCI, the advertisers and the advertising agency shall produce explicit permission from the person, firm or institution referred to in the advertisement.

Guarantees

Are there special rules for advertising guarantees?

There are no special rules for advertisement guarantees. Under the ASCI Code, claims such as ‘guaranteed for up to five years’ are not accepted if there is a likelihood of the consumer being misled, either as to the extent of the product’s availability or as to the applicability of the benefits offered.

Further, the ASCI lays down specific rules for skin lightening or fairness improvement products where it explicitly requires advertisers to not claim or guarantee any false fact.

Environmental impact

Are there special rules for claims about a product’s impact on the environment?

The Air (Prevention and Control of Pollution) Act 1981 and the Environment (Protection) Act 1986 empowered the government to take necessary steps towards the protection of the environment. The Eco-mark scheme was launched in 1991 to encourage consumers to buy products that have a less harmful impact on the environment. The scheme provides accreditation and labelling for household and other consumer products that meet certain environmental criteria along with the quality requirements of Indian standards for the product. The scheme is voluntary and invites participation from citizens and concerned industrial sectors in the wider interests of the environment.

Free and special price claims

Are there special rules for describing something as free or a free trial or for special price or savings claims?

Indian law does not prohibit sales promotions by advertisers. However, sales promotions have to meet the requirements of the ASCI Code. No advertisement shall be permitted to contain any claim so exaggerated as to lead to grave or widespread disappointment in the minds of consumers. As per the ASCI Code:

  • products shall not be described as ‘free’ where there is any direct cost to the consumer other than the actual cost of any delivery, freight or postage. Where such costs are payable by the consumer, a clear statement that this is the case shall be made in the advertisement; and
  • where a claim is made that if a product is purchased another product will be provided ‘free’, the advertiser is required to show, as and when called to do so by the ASCI, that the price paid by the consumer for the product offered for purchase with the advertised incentive is no more than the price of the product without the advertised incentive.

New and improved

Are there special rules for claiming a product is new or improved?

Yes, the ASCI lays down validity and duration of claiming new and improved as follows:

  • the definition of ‘new’: the words ‘new’ and ‘improved’ must specify what aspect of the product or service is new or improved, regarding the product’s utility, function, product design, package design, etc; and
  • the period over which it can be claimed: the above-mentioned words may be used in advertisements only for a period of one year from the time the new or improved product or service was launched or introduced into the market.

Claims of origin

Are there special rules for claiming where a product is made (such as country of origin)?

Please see www.gettingthedealthrough.com.

Prohibited and controlled advertising

Prohibited products and services

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.

Prohibited advertising methods

Are certain advertising methods prohibited?

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

Protection of minors

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.

Credit and financial products

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.

Therapeutic goods and services

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.

Food and health

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.

Alcohol

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.

Tobacco

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.

Gambling

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.

Lotteries

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.

Promotional contests

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.

Indirect marketing

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.

Other advertising rules

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.

Social media

Regulation

Are there any rules particular to your jurisdiction pertaining to the use of social media for advertising?

Online advertisements and website content, including social media sites such as Facebook and Twitter, must comply with a range of marketing, consumer, privacy and contract laws. Online advertisers should comply with the ASCI Code, the Indian Penal Code, the Information Technology Act 2000 (the IT Act) and other applicable laws. For this purpose, the IT Act was amended in 2011.

Have there been notable instances of advertisers being criticised for their use of social media?

There have been no notable instances of advertisers being criticised for their use of social media in India.

Are there regulations governing privacy concerns when using social media?

There is no specific law in India that deals with online behavioural advertising. However, online behavioural advertising is regulated by data privacy laws and contract law in India, namely the IT Act and the Indian Contract Act. Under the provision of section 43A of the IT Act, the government has also enacted the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules 2011 (the Rules). The Rules govern the collection, storage and dissemination of personal data.

As per the Rules, any entity collecting personal information online from a customer must:

  • provide the customer with a privacy policy for the handling of or dealing in personal information that has been provided by the customer under a lawful contract or consent. The privacy policy must indicate the purpose of collection and usage of such information and reasonable security practices and procedures followed by the entity collecting the information;
  • obtain the consent of the customer regarding the purpose of usage before collection of such information;
  • inform the customer of the intended recipients of the information;
  • inform the customer of the period for which this information will be held;
  • only use the information collected for the expressed purpose;
  • allow the customer to review the information provided on request and ensure that personal information found to be inaccurate or deficient be corrected or amended if feasible;
  • give the customer the option to not provide the data or information sought or to withdraw consent given earlier; and
  • have the prior permission of the customer before disclosing personal information unless the disclosure was agreed to at the time of consent.