LAWS RELATED TO ADVERTISING IN INDIA AND EXPLAIN THEM

 

Advertising in India is regulated by several laws and regulations to ensure fair and ethical practices in the industry. Some of the key laws related to advertising in India include:

1.     The Consumer Protection Act, 2019:

·         Objective: This act aims to protect the interests of consumers and promote fair trade practices.

·         Relevance to Advertising: It prohibits unfair trade practices, misleading advertisements, and false claims in advertising. Advertisers must provide accurate information about their products or services.

2.     The Competition Act, 2002:

·         Objective: To promote and sustain competition in the market and prevent anti-competitive practices.

·         Relevance to Advertising: The act prohibits anti-competitive agreements and abuse of dominant market positions, which can include false or deceptive advertising that harms competition.

3.     The Cable Television Networks (Regulation) Act, 1995:

·         Objective: To regulate the operation of cable television networks in India.

·         Relevance to Advertising: It contains guidelines on advertising standards and the prohibition of advertisements that are offensive, indecent, or violative of the advertising code.

4.     The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954:

·         Objective: To control and regulate the advertisement of drugs and remedies claimed to possess magical or miraculous properties.

·         Relevance to Advertising: This act prohibits misleading advertisements related to drugs, remedies, and treatments and ensures that such advertisements are not deceptive.

5.     The Advertising Standards Council of India (ASCI):

·         Objective: ASCI is a self-regulatory body in India that monitors and regulates advertising content.

·         Relevance to Advertising: ASCI issues guidelines and codes of conduct for advertisers, and it has the authority to review and take action against misleading or objectionable advertisements.

6.     The Code for Self-Regulation in Advertising by the Advertising Standards Council of India (ASCI):

·         Objective: This voluntary code sets ethical standards for advertising practices in India.

·         Relevance to Advertising: Advertisers are encouraged to adhere to this code, which covers various aspects of advertising, including honesty, truthfulness, and fairness.

7.     The Indian Penal Code (IPC):

·         Objective: To define various offenses and their penalties.

·         Relevance to Advertising: IPC can be invoked in cases of false advertising if it involves criminal acts such as fraud or cheating.

8.     The Food Safety and Standards Authority of India (FSSAI):

·         Objective: To regulate and ensure the safety and quality of food products in India.

·         Relevance to Advertising: FSSAI has guidelines regarding the advertising of food products, including the use of health claims and nutritional information.

 

Products and Services Banned From Advertising

2.1 Tobacco

The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 ("Tobacco Prohibition Act") prohibits all direct and indirect adertising of tobacco products in all media.

2.2 Human Organs

The Transplantation of Human Organs Act, 1994: This law provides for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs. This law prohibits any advertising inviting persons to supply, offering to supply, any human organ for payment.

2.3 Magical Remedies

The Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954prohibits advertisement of  magical remedies of diseases and disorders.

2.4 Services for Pre-Natal Determination of Sex

The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 prohibits advertisements relating to pre-natal determination of sex.

2.5 Infant formula

Advertising forbidden in order to encourage natural feeding of infants. See details under Food.

2.6 Prize Chits and Money Circulation Schemes

The Prize Chits and Money Circulation Schemes (Banning) Act, 1978 prohibits advertisements relating to prize chit² and money circulation schemes.

2.7 Physicians

Under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, issued under the Indian Medical Council Act, 1956, physicians are not allowed to advertise their services in any form or manner of advertising through any mode, as soliciting of patients directly or indirectly, by a physician, by a group of physicians, or by institutions or organizations is unethical. (A physician refers to a doctor with a qualification of MBBS or MBBS with a postgraduate degree/diploma or with an equivalent qualification in any medical discipline.) However, medical practitioners are allowed to make a formal announcement in press regarding the following:

• On starting practice
• On change of type of practice
• On changing address
• On temporary absence from duty
• On resumption of another practice
• On succeeding to another practice
• Public declaration of charges

2.8 Legal Services

The Bar Council of India Rules formulated under the Advocates Act 1961 strictly enforce the advertisement ban and publicity rules governing law firms' websites. These rules were enacted and enforced to curb the false advertisement of lawyers to gain publicity to attract clients.

3 Regulations Related to Product and Service Advertising

3.1 Alcohol (Beer, Wine, and Spirits)

The Cable Television Network Rules, 1994, the Advertising Codes of Doordarshan, and the All India Radio and Norms for Journalist Conduct issued by the Press Council of India prohibit any advertisement directly or indirectly promoting the production, sale, or consumption of cigarettes, tobacco products, wine, liquor, or other intoxicants. However, some states allow advertising through billboards, signboards etc. but subject to many restrictions. Also, the ASCI Code prohibits use of minors for advertising alcohol products.

3.2 Professionals such as Chartered Accountants, Company Secretaries & Cost Accountants

These professionals are prohibited from soliciting clients or professional work by advertisement. However, they may issue advertisements about their firm or services of their firm, through any mode of transmission, having inter alia details of names of partners, address and website, telephone, mobile, e-mail, fax number of the member, year of establishment, additional recognized qualifications, languages spoken by the partner(s), honours or awards in the field of teaching, research, authorship etc.

3.3 Firearms, Weapons, and Ammunition

Sale and purchase of such items requires a license from government authorities. Therefore, advertisements related to such products are not permissible in India under the Arms Act, 1959.

3.4 Food

As per the Food Safety & Standards Act, 2006, no advertisement relating to the standard, quality, quantity or grade-composition, and no representation concerning the need for, or the usefulness of any food can be made which is misleading or deceiving or which contravenes the provisions of this law or rules and regulations made thereunder.

3.5 Infant Milk Food

The Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 prohibits the advertising of infant milk substitutes or feeding bottles.

3.6 Gaming (gambling, games of chance; differentiate between private-sector and "state" lotteries)³

The federal structure in the Constitution of India explicitly gives the States the right to legislate upon "gambling and betting". The Public Gambling Act, 1867 prohibits gambling activities in India. However, the Public Gambling Act permits games of mere skill. In April, 2011, the Information Technology Act, 2000 was also amended to ban Internet gambling and online betting websites. The Lotteries (Regulation) Act, 1998 gives power to the concerned State government to hold lotteries subject to prescribed conditions. Under section 294-A of the Indian Penal Code, advertisements of a lottery unless it is in accordance with the Lotteries (Regulation) Act shall be punishable.

The Prize Competitions Act, 1955controls and regulates prize competitions in certain parts of India and prohibits the advertisement of unauthorized prize competitions.

3.7 Medical Devices

The authority principally responsible for regulating medical devices in India is the Central Drugs Standard Control Organization ("CDSCO") under the provisions of the Drugs & Cosmetics Act, 1940. CDSCO's functions include regulating the medical devices industry by approving for import, manufacture and sale of medical devices in India.

3.8 Medical Services

An institution run by a physician for a particular purpose such as a maternity home, nursing home, private hospital, rehabilitation centre or any type of training institution etc. may be advertised in the lay press, but such advertisements should not contain anything more than the name of the institution, type of patients admitted, type of training and other facilities offered and the fees. Please also see 2.7 above.

3.9 Nutritional Supplements: It is regulated under the Food Safety and Standards Act, 2006.

3.10 Occult ("Psychic") Services

These services are not legally recognized in India and are not permissible under the Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954

3.11 Pharmaceuticals (over-the-counter and prescription medications)

The phrase over-the-counter (OTC) has no legal recognition in India. All the drugs not included in the list of "prescription-only drugs" are considered to be non-prescription drugs (or OTC drugs). Prescription-only drugs are those medicines that are listed in Schedules H and X of the Drug and Cosmetics Rules, 1945.

3.12 Tests and Lab Analysis

The Drugs and Cosmetic Act, 1940 prohibits advertisements for any drug or cosmetic from using reports of tests or analysis of the Central Drugs Laboratory or by a government analyst.

3.13 Political Candidates, political platforms, political parties, political issues

The Representation of the People (Amendment) Act, 1996 has the following provisions relating to advertisements:

a.     prohibit advertisements for a period of forty-eight hours ending with the hours fixed for conclusion of polling for any elections in a given polling area.

b.     use of displaying posters, signboards etc. for political advertisement in any public place strictly in accordance with the relevant provisions of the local laws.

c.      equitable opportunity to all political parties and candidates to have access to public advertisement space for election related advertisements during the election period.

d.     use of private premises for political advertisement only with the voluntary permission of the occupant.

e.     prohibition of any and all advertisements at the cost of the public exchequer regarding achievements of the political party/ruling government.

The statute provides for a penalty of imprisonment and/or fine for anyone, including advertisers, who contravenes these provisions.

3.14 Products Related to Sexuality (condoms, ED drugs, etc.)

Advertisements related to sexuality are allowed with the provision that there should not be any indecent representation of women under the Indecent Representation of Women (Prohibition) Act 1986. Products must comply with the Drugs and Cosmetic Act 1940and other  certification rules under the Cable Television Network Rules 1994.

3.15 Religion

Under the Cable Television Networks Rules 1994, Advertising Codes of Doordarshan& All India Radio and Norms for Journalist Conduct issued by the Press Council of India, advertisement based on religion or to hurt religious sentiments are not allowed. Also, such advertisement may be punishable underIndian Penal Code 1860.

3.16 Securities

The Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 issued under section 30 of the Securities and Exchange Board of India Act, 1992 prohibits fraudulent or unfair trade in securities. These regulations further provide that dealing in securities shall be deemed to be a fraudulent or an unfair trade practice if it involves an advertisement that is misleading or contains distorted information and which may influence the decision of the investors.

3.17 Sexual Services

Advertisement pertaining to sexual services is illegal in India.

3.18 Tobacco Products (cigarettes, cigars, snuff, pipe tobacco)

Please see para 2.1 above.

3.19 Toys

There is no specific restriction on the advertisement of toys provided they are in compliance with other applicable laws.

 

 

 

It's essential for advertisers and marketers in India to familiarize themselves with these laws and regulations to ensure that their advertising practices are in compliance. Failure to adhere to these laws can lead to legal consequences, fines, or damage to the reputation of the brand or business. Additionally, ethical advertising practices can help build trust with consumers and contribute to a positive brand image.