WE all know that the consumer is king/queen and that s/he is considered to be intelligent and the ultimate decision maker with respect to the fortunes of many a company. However, how does one ensure that it really happens?

The consumer has to be protected and the industry encouraged to give a wider choice of good quality products. This can be achieved by providing strict regulations to curb malpractices of a few advertisers and ensure the interest of consumers are given utmost importance.

‘Consumer trust in advertising relies in no small part on the ability of the industry to effectively and transparently police itself,’ says Stephen Loerke, Managing Director, World Federation of Advertisers. In India, the Advertising Standards Council of India performs the role of self-regulation with the support of the Advertising Industry. Advertisers (80%) usually comply with the decision of ASCI’s Consumer Complaints Council even if they do not agree with it. If an advertiser does not voluntarily withdraw the offending advertisement, ASCI writes to the media and they stop or refuse it.

ASCI has one overarching goal: to maintain and enhance the public’s confidence in advertising. It seeks to ensure that advertisements conform to its code for self-regulation which requires advertisements to be truthful and fair to consumers and competitors; within the bounds of generally accepted standards of public decency and propriety; and not used indiscriminately for the promotion of products, hazardous or harmful to society or to individuals, particularly minors, to a degree unacceptable to society at large, and fair in competition.

The code’s rules are not the only ones to affect advertising. There are many provisions, both in common law and in the statutes, which can determine the form or the content of an advertisement. The code is not in competition with law. Its rules, and the machinery through which they are enforced, are designed to complement legal controls, not to usurp or replace them. ASCI propagates its code and a sense of responsibility for its observance amongst advertisers, advertising agencies, the media and others connected with the creation of advertisements.

 

If consumers feel that an advertisement violates any of these four principles or the law, they can complain to the ASCI. The methods of registering a complaint are: (i) Letter addressed to The Secretary General, the Advertising Standards Council of India, 219 Bombay Market, Tardeo, Mumbai 400 034; (ii) through email (asci@vsnl. com; alan@ascionline.org); (iii) online: visit ASCI’s website www.ascionline. org and register a complaint. The form is simple and you will get a tracking number which will help you track the progress of the redress of your complaint. You can even download the offending advertisement, which will help speed up the process; (iv) phone: you can ring ASCI on 022 23513982 or 022 23521066 or 1-800-22 –2724 (toll free). If the complaint is complete, the decision will be taken by ASCI’s Consumer Complaints Council (CCC) within an approximate period of a month.

All complaints are finally redressed by ASCI’s CCC. This body consists of 21 members – 12 members from civil society and nine from industry. The civil society members consist of consumer activists (women/children/consumers), eminent academicians, journalists, doctors, lawyers and scientists.

What are misleading advertisements? What does ASCI’s Code say about them? To ensure the truthfulness and honesty of representations and claims made by advertisements and to safeguard against misleading advertisements:

1. The advertisements must be truthful. All descriptions, claims and comparisons which relate to matters of objectively ascertainable fact should be capable of substantiation. Advertisers and advertising agencies are required to produce such substantiation as and when called upon to do so by the Advertising Standards Council of India.

2. 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.

3. Advertisements shall not, without permission from the person, firm or institution under reference, contain any reference to such person, firm or institution which 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 Advertising Standards Council of India, the advertiser and the advertising agency shall produce explicit permission from the person, firm or institution to which reference is made in the advertisement.

4. Advertisements shall neither distort facts nor mislead the consumer by means of implications or omissions. Advertisements shall not contain statements or visual presentation which directly or by implication or by omission or by ambiguity or by exaggeration are likely to mislead the consumer about the product advertised or the advertiser or about any other product or advertiser.

5. Advertisements shall not be so framed 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:

a) 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.

b) Where a claim is made that if one product is purchased another product will be provided ‘free’, the advertiser is required to show, as and when called upon by the Advertising Standards Council of India, that the price paid by the consumer for the product which is offered for purchase with the advertised incentive is no more than the prevalent price of the product without the advertised incentive.

c) Claims which use expressions such as ‘Up to five years’ guarantee’ or ‘Prices from as low as Rs Y’ are not acceptable if there is a likelihood of the consumer being misled either as to the extent of the availability or as to the applicability of the benefits offered.

d) Special care and restraint has to be exercised in advertisements addressed to those suffering from weakness, any real or perceived inadequacy of any physical attributes such as height or bust development, obesity, illness, impotence, infertility, baldness and the like, to ensure that claims or representations directly or by implication, do not exceed what is considered prudent by generally accepted standards of medical practice and the actual efficacy of the product.

e) 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 assumptions, such conditions or assumptions must be clearly indicated in the advertisement.

f) Advertisements inviting the public to take part in lotteries or prize competitions permitted under law or which hold out the prospect of gifts shall state clearly all material conditions as to enable the consumer to obtain a true and fair view of their prospects in such activities. Further, such advertisers shall make adequate provisions for the judging of such competitions, announcement of the results and the fair distribution of prizes or gifts according to the advertised terms and conditions within a reasonable period of time. With regard to the announcement of results, it is clarified that the advertiser’s responsibility under this section of the code is discharged adequately if the advertiser publicizes the main results in the media used to announce the competition as far as is practicable, and advises the individual winners by post.

6. Obvious untruths or exaggerations intended to amuse or to catch the eye of the consumer are permissible provided that they are clearly to be seen as humorous or hyperbolic and not likely to be understood as making literal or misleading claims for the advertised product.

7. In mass manufacturing and distribution of goods and services it is possible that there may be an occasional, unintentional lapse in the fulfilment of an advertised promise or claim. Such occasional, unintentional lapses may not invalidate the advertisement in terms of this code.

 

In judging such issues, due regard shall be given to whether the claim or promise is capable of fulfilment by a typical specimen of the product advertised, whether the proportion of product failures is within generally acceptable limits, and whether the advertiser has taken prompt action to make good the deficiency to the consumer.

ASCI insists that before advertising, marketers must hold documentary evidence to prove all claims, whether direct or implied are capable of objective substantiation; advertisements should comply with the law and should not incite anyone to break it; and consumers should not be encouraged to use products to excess. Products should be safe and without side effects.

 

In a bid to further strengthen the process of constraining/reducing misleading advertisements which harm the interests of consumers, the Advertising Standards Council of India (ASCI), announced the path-breaking NAMS initiative to keep continuous track of advertisements nationally. AdEx India, a division of TAM Media Research, with support from ASCI trained personnel, checks all newly released TV/newspaper print ads. This is specifically for violation of ASCI’s code with respect to unsubstantiated, misleading or false claims. On an average, a massive number of newly released ads, about 1500 TV and 45000 newspaper ads per month are monitored under this initiative.

NAMS was launched in May 2012. According to I. Venkat, who was then Chairman of ASCI: ‘We are enthused with the results shown by NAMS in the first month of the pro-actively monitoring of ads. Going by the initial results I am confident that NAMS will enhance the ad self-regulation redressal process manifold. We now expect to see significant reduction in ads making misleading, false or unsubstantiated claims in the future with start of NAMS and consumers in India will benefit immensely.’

As per ASCI’s agreement with TAM Media Research, AdEx India identifies ads which are in potential violation of Chapter 1 of the ASCI code. AdEx India monitors newly released ads in the auto, banking, financial services and insurance, FMCG (incl F&B), consumer durables, educational institutions, health care products and services, telecom and real estate sectors. The scope of work covers the tracking of more than 30 newspapers (all editions) which contribute to over 80% of national newspaper readership and all TV channels across the country in all Indian languages. Ads seen as those potentially violating Chapter 1 of the ASCI code are forwarded to ASCI on a weekly basis, post which the ASCI process them as per its normal complaint procedure involving its Consumer Complaints Council (CCC) for adjudication.

How does one complain? The wrong way to complain is: This ad is misleading and makes false claims. The right way to complain: The claims made in the advertisement that the lassi improves immunity power, decreases heat, helps to reduce weight, protects you from bacteria of cancer should be substantiated scientifically as these claims appear to be misleading.

 

In India, self-regulation has worked efficiently with over 5,00,000 ads being monitored every year by the Advertising Standards Council of India. Last year consumers lodged over 3000 complaints against 208 ads and the ASCI raised over 500 suo motu complaints through its National Advertising Monitoring Service (NAMS). ASCI has teeth only with respect to advertisements on TV where the cable TV networks rules apply. Similar teeth should be given with respect to all media. At present there is an 80% compliance rate of ASCI’s Consumer Complaints Council’s decisions. All non-compliant advertisements that are misleading should be forwarded to the Department of Consumer Affairs for legal action. Hence, we need to create an environment where the ASCI and the government work together to take necessary suo motu action under ASCI’s codes and the applicable law.