advertising laws

8/7/2019 Advertising Laws

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Advertising Laws in IndiaSmarak Samarjeet


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Advertising is a form of communication intended to persuade anaudience (viewers, readers or listeners) to purchase or take someaction upon products, ideas, or services. It includes the name of aproduct or service and how that product or service could benefitthe consumer, to persuade a target market to purchase or toconsume that particular brand.

Advertising communication is a mix of arts and facts subservient toethical principles. In order to be consumer-oriented, advertisementwill have to be truthful and ethical. It should not mislead theconsumer. If it so happens, the credibility is lost.


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In order to enforce an ethical regulating code, the Advertising Standards

Council of India was set up. Inspired by a similar code of the AdvertisingStandards Authority (ASA) UK , 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 andclaims made by advertisements and to safe guard against misleadingadvertising; To ensure that advertisement are not offensive to generallyaccepted standards of public decency;


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To safeguard against indiscriminate use of advertising for promotionof 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 sothat the consumers need to be informed on choices in the market placesand canons of generally accepted competitive behaviour in business are

both served.


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Few Complaints filed with ASCI o HLL s Clinic All Clear Dandruff shampoo claimed that it had ZP TO , the

special ingredient in Clinic All Clear that stops dandruff. This claim wasfound to be untrue since ZP TO is a micro biocide, when in reality, dandruff is known to be caused by several other factors, besides, microbes. HLL smulti-crore research wing clearly overlooked this aspect. Theadvertisement has been withdrawn.


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N ovartis India claimed that their disposable contact lenses ensurethere is no protein build-up. This claim was found to be totally false. The

truth is that build up is a natural biological phenomenon with all contactlenses. The ad was discontinued.


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The Young Persons (Harmful

Publications) Act, 1956 -An Act to preve nt the diss em in at ion of certa in public at ions harmf ul to y oung

per sons. I t exte nds to the w ho le of Indi a except the State of J amm u and

K ashm ir.Def ini tions. In th is Act,- (a) " harmf ul public at ion" mea ns any b ook, ma gazin e, pamphlet, leaf let, newsp aper or other like public at ion w hich consis ts of stor ies to ld wi th the aid of pic ture s or witho ut the aid of pic ture sor w ho lly in pic ture s, being s tor ies p ortra ying w ho lly or ma inly - (i) the comm issi on of offe nc es; or

(ii) acts of v iolence or cruelty; or (iii) incid ents of a re pulsi ve or horr ible nat ure ; in suc h a w ay that the public at ion as a w ho le w ould tend to corr up t a y oung p er son in to w ho se ha nds i t m ight fall, w hether by inci ting or encoura ging him to comm it offe nc es or acts of v iolence or cruelty or in any other ma nn er w hat soever ;


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In RANJIT D. UDE SHI Vs STATE OF MA HARA SHTRA , the test of obsc eni ty w as esta blis he d. T he app ellan t, a book seller, sold a copy of the un expu rgate d edi tion of Lady Chatter ley's Lover" . He w as conv icted und er s. 292 , Indi an P enal Code, it w as ruled that in judging a w ork, stre sssho uld n ot be laid up on a w or d here and a w or d there, or a passage here and a passage there . Tho ugh the w ork as a w ho le m us t be consid ere d, the obsc ene matter mus t be consid ere d by i tself and s eparate ly to f ind out w hether it is so gro ss and i ts obsc eni ty so decided that it is likely to deprave and c orr up t tho se w ho se m inds are open to in f luences of th is sort . In th isconn ection the in tere sts of con tem porar y society and p art icul ar ly the in f luence of the impugn ed b ook on i t m us t not be over looke d. W here, obsc eni ty and art are mixed, art m us t so pre pond erate as to thro w the obsc eni ty into a sha dow or the obsc eni ty so tr iv ial and insigni f icant that it can have no effect and ma y be over looke d. I t is n ecessar y that a balance sho uld b e ma in ta ined b etw een "free dom of sp eech and expre ssion" and"public d ecency or mora lity "; bu t w he n the latter is subs ta ntially tra nsg re ssed the former m us t give w ay. And in C HANDRAKANTKALYANDA S KAKODAR v . STATE OF MA HARA SHTRA AND OR S, it he ldthat there w as n o f ixed rules to determ in e obsc eni ty.T he concept of obsc eni ty w ould di ffer from coun tr y to coun tr y depending on the sta nd ar dsof mora ls of contem porar y society.


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The Indecent Representation of Women (Prohibition)Act, 1986-

The Act punishes the indecent representation of Women , whichmeans the depiction in any manner of the figure of a woman; herform or body or any part thereof in such way as to have the effectof being indecent, or derogatory to, or denigrating women, or islikely to deprave, corrupt or injure the public morality or morals.Itstates that no person shall publish or cause to publish or cause tobe published or arrange to take part in the publication or exhibitionof any advertisement which contains indecent representation of women in any form. 'In the Act, advertisement' includes any notice,circular, label, wrapper or other document and also includes anyvisible representation made by means of any light, sound, smoke orgas.


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The Amendment suggested by the N ational Commissionfor Women suggests to amend the definition to

advertisement' includes any notice, circular, label,poster, wrapper or other document and also includes anyvisible representation made by means of any laser light,sound, smoke, gas, fibre, optic electronic or othermedia It states that no person shall produce or cause to

be produced, sell, let to hire, distribute, circulate or sendby post any book, pamphlet, paper, slide, film, writing,drawing, painting, photograph, representation or figurewhich contains indecent representation of women in any.The Commission has also suggested the addition of theword Derogatory along with indecent .


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Any person who contravenes the provisions shall be

punishable with imprisonment for a term which mayextend to two years, and with fine which may extendto two thousand rupees.The event of a second or subsequent conviction with

imprisonment for term of not less than six monthsbut which may extend to five years and also with afine not less than ten thousand rupees but whichmay extend to one lakh rupees.


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In the Kamasutra Advertisement, Milind Soman and Madhu Sapre too hadfaced similar mix of charges.

Similar charges were raised against the Editor of Anandabazar Patrika,Aveek Sarkar, and the Publisher in a trial court in Kolkata relating to thereproduction of a nude photograph of former tennis player Boris Beckerand his fiance in Sportsworld magazine, published by the group in May1993.

In April 2006, a Madurai court issued non-bailable warrants against Senand Shilpa Shetty for "posing in an obscene manner" in photographspublished by a Tamil newspaper. The report stated that the two actresseshad failed to comply with earlier summonses for the same reason, hencethe issuance of the warrants. The petitioner submitted that the paper hadpublished "very sexy blow-ups and medium blow-ups" in its issuesDecember 2005 and January 2006 issues, and which allegedly violated theIndecent Representation of Women (Prohibition) Act 1986, Young Persons(Harmful Publications) Act 1956, and the Indian Penal Code Section 292(Sale of O bscene Books). The petitioner further demanded that theimages should be confiscated under the terms of the Press and

Registration of Book Act 1867.


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The Emblems and Names (Preventionof Improper Use) Act, 1950-

An Act to preve nt the im pro per us e of certa in em blem s andname s for profe ssional and c ommer cial pu rposes. I t exte ndsto the w ho le of Indi a, and also appli es to citizens of Indi a outsid e Indi a.Not with sta nding any th ing c onta in ed in any l aw for the time being in for ce, no per son s ha ll, except in suc h cases and und er suc h condi tions as ma y be pre scribed by the Centra lGover nme nt, us e or continu e to us e, for the pu rpose of any tra de, busin ess, calling or profe ssion , or in the title of any pate n t, or in any tra de mark or design , any n ame or em blem sp ecif ied in the Sche dul e or any c oloura ble im itat ion thereof witho ut the prev ious p erm issi on of the Centra l Gover nme nt or of suc h off icer of Gover nme nt as ma y be author ized in th isbeha lf by the Centra l Gover nme nt.


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Any p er son w ho contrave nes the prov isions of

section 3 s ha ll be punis ha ble with f in e w hich ma y exte nd to f ive hund re d rup ees.

R av ikanth Sh ind e v s Managing Di re ctor, Gujarat

Heav y Chem icals Ltd. And O rs. on 24/4/2003


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Th is is a W r it pet ition f iled by an Ad vocate in public in tere st. The pet itioner pra ys that re sp ond en t Nos. 1 and 2 b e re stra in ed from ma nu facturing , stock ing and market ing the ir pro duc t 'k itche n s alt 'und er the tra de mark of Dandi wi th pic tor ial re pre sen tat ion in the back gro und w h ich create s an i mpre ssi on that Mahatma Gand h i, father of the nat ion , is pic k ing up s alt. Accor ding to the pet itioner, the tra de mark Dandi i tself gives an i mpre ssi on that it ha s to do someth ing wi th the h is tor ical mar ch starte d by the father of the nat ion M ahatma Gand h i du r ing free dom str uggl e. Th is mar ch w asby w ay of prote st agains t Salt laws and the re sp ond en ts are sellingthe ir salt bra nd n ame d as Dandi wi th a pic ture w h ich is si m ilar to the pic ture of Mahatma Gand h i and h is follow er s take n at the time of Dandi mar ch w h ich ha s b ecome so famo us in the coun tr y for nu m ber of decades and that it is b eing take n almo st as a sacre ddocume n tat ion of Mahatma Gand h i and free dom str uggl e. The pet itioner con te nds that the pic tor ial re pre sen tat ion and the name

itself of the pro duc t sold by re sp ond en ts 1 and 2 is in c on trave n tionof the Emblem s and N ame s (Preve n tion of Impro per Use) Act, 1950.

The case w as dis m iss ed ci ting that the con ten tions of the pet itioner are m ispl aced. T he Ho nble Court did n ot f ind any mer its in the matter . The pet ition is dis m iss ed."


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The Drugs and Magic Remedies

(Objectionable Advertisements) Act,1954-

It proh ibi ts advert iseme nts for pro duc ts and s erv icesclaiming to cure certa in me dic al condi tions. As p er the

law , no advert iseme nt sho uld p rom ise ma gical cu re for any ailme nts or dis ea se and the rules sp ecif y the dis ea sesand ailme nts that cann ot be advert ised p rom ising cu re or reme dies. Ho w ever, the enfor ceme nt of the Act by the state author ities is p oor becaus e one f inds a nu mber of advert iseme nts in the prin t me dia. The Act also does n ot cover advert iseme nts that app ear in var ious me dia perta ining to hea lth gadget s of unp rove n eff icacy , like tumm y tr immer s, bands for blood p re ssu re contro l, andgadget s to inc rea se he ight . This Act does n ot prov ide for issuing c orre ctive advert iseme nts.


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As it sta nds , the Drugs and M agic R eme dies(Objectionable Advert iseme nts) Act, 1954 , basically proh ibi ts four k inds of advert iseme nts p erta ining to drugs and ma gical cu re s. Section 3 of the Act saysthat no per son s ha ll take any p art in the public at ionof any advert iseme nt promot ing a drug or leading to the us e of a drug for the pro cureme nt of m iscarr iage in w ome n or preve ntion of conc eption in w ome n;the ma in te nanc e or improveme nt of the capacity of huma n b eing for sexual pleasu re ; and c orre ction of me ns tr ual dis or der s in w ome n.


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Section 3 f urther proh ibi ts any advert iseme nt promot ing d rugs for the diagn osis , cure, m itigat ion, treatme nt or preve ntion of any dis ea se, dis or der or condi tion sp ecif ied in the Sche dul e. The sche dul e lists a nu mber of dis ea ses, dis or der s or condi tions suc h as

diabete s, catara ct, canc er, fever s (in g enera l), obesity , rhe umat ism, impote nc e, h igh or low blood p re ssu re, fema le dis ea ses, epil epsy , stat ure of per sons , venerea l dis eases, glaucoma,

ster ility in w ome n, dro psy , et c.


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Section 4 of the Act proh ibi ts tho se

advert iseme nts re lat ing to a drug i f the y conta inany matter w hich di re ctly or indi re ctly gives a false impre ssi on re gar ding the tr ue chara cter of the drug or make s a false claim for the drug or is

other wise false or misleading. Section 5 of the Act proh ibi ts advert iseme nts of ma gic reme diesfor treatme nt of certa in dis ea ses and dis or der s.


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Violat ion of the law attra cts im prisonme n t for six mo n th s or f in e or both, for f irst conv iction and for subs equen t conv iction , im prisonme n t for a y ear or f in e or both .

Despi te the Magic R eme dies Act, RK Gup ta advert ised wi th im puni ty h is clinic and cl aime d that he w as offer ing a su re cu re for epilepsy. I ro nic ally , w ay back in 2000 , the Indi an M edic alAssociat ion ha d d eclare d h im a quack after a comm ittee ha d foundthat he w as giv ing h is p at ien ts tox ic d rugs in h igh doses. The n inMay 2003 , following a com plain t from a consu mer, the Advert isingSta nd ar ds C ouncil of Indi a ha d he ld that the advert iseme n t v iolate dthe Drugs and M agic R eme dies (Ob jectionable Advert iseme n ts) Act.Y et, he con tinu ed to advert ise and the drug c on tro l departme n tsfailed to act, re sul ting in tho us ands of consu mer s falling p re y to the se advert iseme n ts.


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Monopolies and Restrictive TradePractices Act, 1969

Section 36 A of the Act dea ls wi th 5 major Un fair Tra de Pra ctices: -Any m isleading , false, and w ro ng re pre sen tat ion either in w riting(i.e. in advert iseme n ts, w arra n ty , gu ara n tee etc.) or ora l (at the time of sale) actual or in te nd ed , even i f actual in jury or loss is n ot caus edto the consu mer /buy er cons titu te s as un fair tra de pra ctices;Sales, w here there is eleme n t of decep tion;All busin ess p romot ion sc heme s ann ouncing free gifts, con te sts, et c. w here any eleme n t of deception is in volved;Violat ion of laws exis ting for prote ction of consu mer s;

Manipul at ing s ales wi th a v iew to ra ising p r ices.Par lesma ng o dr in k Maaza gave the advert iseme n t of Maazama ng o and the MRTP issu ed a not ice agains t Par le Export s Pvt . Ltd.The advert iseme n t im plied that the soft dr in k w as p re pare d from fre sh ma ng o w h ile actually p re servat ives w ere add ed to it. The com pany ha d to susp end p ro duc tion p ending enqui ry.


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