THE success of a brand is dependent on how many people know about it, understand it and are interested in buying it repeatedly. It is for this reason that marketeers use many ways to communicate with consumers and constantly look at a variety of tools through which they can get their ideas across to them. These tools, which include the use of media, vary in their effectiveness and cost as well as their reach for different consumers. In 2011, television channels in India played 948 million seconds of advertisements.

Advertising is considered a very versatile medium; attracting consumers, luring them towards various products and services – making promises and breaking them too. It not only entertains and informs, but also educates consumers on the products and services, their use and disposal. It advises them how to live, eat, walk and provides guidance on what they should do, irrespective of whether it is right or wrong. It teaches them that they need to live life to the fullest now and to live for their self-expression through the use of brands. It is responsible for bringing both positive and negative changes in society and, therefore, is a tool that could be used either way. It is precisely for these reasons that advertising has attracted regulation.

The Advertising Standards Council of India (ASCI), the self-regulator of the advertising industry, was pressurized into taking the initiative to check the rampant malpractices of advertisers or face increasing regulation of the industry. Accordingly, it has recently created a National Advertising Monitoring Service (NAMS) to track advertisements nationally on its own initiative, rather than wait for consumers to complain. As per the arrangement, AdEx India, a division of TAM Media Research, continuously checks all newly released TV and newspaper print advertisements, specifically for any violation of the ASCI’s advertising code in the auto, banking, financial services and insurance, FMCG (incl. F&B), consumer durables, educational institutions, healthcare products and services, telecom and real estate sectors. They track advertisements appearing in all newspapers and TV channels across the country, in all languages, on a weekly basis.

 

The Consumer Complaints Council (CCC) of the ASCI processes these for adjudication. It monitors about 1500 TV commercial and 45000 print advertisements in a month. The CCC recently took action against some misleading advertisements. For example, an advertisement by British Biologicals for D-protein claimed that it was, ‘A unique formulation that provides the ideal balance of nutrition and taste. It also helps in controlling the complications of diabetes in the long run. So even though certain foods are still restricted, the weakness and fatigue that accompanies this loss of nutrition is totally absent.’ The CCC concluded that the claims mentioned in the advertisement were inadequately substantiated.

In another complaint received by ASCI, an advertisement showed ‘a boy with cricket bat jumping over a creek and his face changing to Cheteshwar Pujara’s.’ The ad implied that children who take risks turn into top cricketers. The element of risk was clearly visible when other children were shown as astonished to see the feat of the boy jumping the creek. This scene clearly violated the ASCI code. The jump was clearly morphed, which increased the risk for a normal child who could not have possibly done this stunt, but might have been tempted to mimic the feat. The CCC concluded that the ad showed a dangerous practice and manifested a disregard for safety without justifiable reason. The advertiser was asked to withdraw the ad.

In yet another case, VLCC Personal Care advertised its ‘Revolutionary Duo Therapy’ as ‘Lose up to 5 cms and half a kg on every visit. Duo Therapy uses safe, scientific and latest technology for quick weight loss and figure correction. The therapy also helps in tightening, firming and smoothening of the skin.’ The CCC concluded that the claim, ‘Lose up to 5 cms and half a kg on every visit’, was inadequately substantiated.

The ASCI deliberated and decided on 342 complaints against 304 advertisements in March 2013; 148 complaints against 114 advertisements in February 2013; and on 262 complaints against 108 advertisements in January 2013. Considering the number of advertisements appearing on TV and in print, this is very small and insignificant action. Moreover, the ASCI does not monitor other media tools that are used by advertisers to reach out to consumers.

 

The Consumer Protection Act, 1986 is the mother legislation that has at its heart the protection of consumer interests. It regulates advertising generally and defines a misleading statement in terms of various ways in which misleading claims could be made.

While the consumer courts can stop display of such advertisements pending disposal, pass ‘cease and desist’ orders or direct an advertiser to issue a corrective advertisement, they cannot deal with misleading advertisements like the Monopolies and Restrictive Trade Practices Commission can, because they neither have the power nor infrastructure to investigate suo motu and they do not have an investigating wing like the office of the DG (investigation and registration) under the MRTP Act. They can, however, award compensation for loss or suffering and impose punitive damages and costs of litigation, provided the consumer files a complaint.

 

In April 2012, two advertisements of the media house Dainik Jagran were pulled up for being false and misleading. One was for their claim, ‘Haryana mein Dainik Jagran 2 guna Dainik Bhaskar se.’ Dainik Jagran used the readership data from the city of Faridabad to imply a higher readership in all the other states as well. As a standard practice while comparing two publications, city data cannot and must not be referred to as state’s data. The CCC noted that Dainik Jagran’s claim was not made on the basis of ‘Average Issue Readership’ (AIR), and thus considered misleading by the ASCI.

On another occasion, their advertisement, which stated that Dainik Jagran is ‘Haryana’s No.1 newspaper’, was also pulled up for misleading readers by using visual aids to create the illusion of its leadership and for highlighting the gap between the newspaper brands. As a result, both these print advertisements were discontinued for being false and misleading.

In November 2012, in a complaint against Dainik Bhaskar in Bhopal, it was alleged that the paper was making a comparison on the basis of net paid circulation as per market estimates, treating the Patrika newspaper on 1/8th position in respect of circulation in Bhopal. The remarks were totally untrue, baseless and unsubstantiated. It was found from the DAVP website that the circulation data of Dainik Bhaskar (as provided by RNI) and circulation data of Patrika newspaper (as provided by Audit Bureau of Circulation ABC) were almost equal. Dainik Bhaskar had purposely shrunk the circulation size of Patrika newspaper to the extent of 1/8th as shown by the graphical comparison to make the claim. The claim was found to be misleading and the newspaper was asked by the ASCI to withdraw the advertisement.

 

Advertising has often been criticized for the way it portrays women. The Indecent Representation of Women (Prohibition) Amendment Bill, 2012 is proposed to amend the 1986 Act, in order to ensure more effective protection to women against their indecent representation in all methods of distribution, whether through samples or public access and includes broadcast, transmission or uploading on website or in any other printed or electronic form, whether for profit or otherwise, in any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation in any form, figure or any other content in printed, audio, visual or electronic form.

The term ‘indecent representation of women’ has also been explained to include ‘depicting women as a sexual object or which is lascivious or appeals to the prurient interests, or depicting, publishing or distributing the figure of a woman, her form or body or any part thereof in such a way as to have the effect of being indecent or derogatory to, or denigrating women, or which is likely to deprave, corrupt or injure the public morality or morals.’

In April 2012, Vodafone, came under the radar for its television commercial, which depicted schoolgoing kids getting attracted towards each other and falling in love. The CCC concluded that the sexualized subtext of young teens being attracted to one another was likely to cause grave and widespread offence. Hence, the company was asked to withdraw the advertisement.

 

The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, prohibits any advertisements for maintaining or improving capacity for claims regarding sexual pleasure, correcting menstrual disorders, or diagnosing, curing, mitigating, treating or preventing any venereal or specified disease. It also prohibits advertisement of magical remedies for treatment of certain diseases and disorders. In 2012, Silver Maple Healthcare Services issued an advertisement for direct hair implantation with a head-line that stated, ‘No one gets you your hair back like DHI.’ Also, the advertisement claimed that ‘DHI is the best hair restoration treatment in the world with Total Care System.’ As these claims were not substantiated with statistical and other necessary data, the advertiser was asked to withdraw the advertisement.

The Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994, prohibits advertisements inviting the sex determination of an unborn child as well as advertising the availability of such facilities.

The Food Safety and Standards Act, 2006 regulates all communications related to food items, including advertisements, packaging, display and labelling. It also covers misbranded food articles. It states that the labels shall not contain any statement, claim, design or device which is false or misleading in any particular, concerning food products contained in the package or concerning the quantity or the nutritive value, implying medicinal or therapeutic claims or in relation to the place of origin of the said food products.

An advertisement in 2012 claimed, ‘Take Himani Sona Chandi Chyawanprash every day for a strong body and razor sharp mind. Gold removes toxins to boost immunity power, silver activates neurons to enhance memory and concentration.’ It claimed to contain 51 rare herbs which protect against weather changes, pollution and general illness. It was decided that the advertiser should provide supporting technical submission, details of tests/trials conducted, with comparative data in substantiation of these claims, or else withdraw the advertisement.

 

The Infant Milk Substitute, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act 1992, and Amendment Act 2002, applies to advertisements and any direct and indirect methods used to promote sale by all manufacturers of baby foods for children up to two years of age and includes infant milk substitutes, infant foods, feeding bottles, etc. The advertisements of such products need to specify that mothers milk is the best source of nutrition for first six months of the baby’s life

The Transplantation of Human Organs Act, 1994, prescribes punishment for any person who advertises to invite persons to supply or offer to supply any human organ for payment, or initiates or negotiates any arrangement for the above, or conveys his willingness to negotiate for supplying or offering to supply any human organ for payment.

In addition, the various regulatory authorities for different sectors also place restrictions on how their services are to be advertised. They specify the nature of information that needs to be communicated to consumers. The Securities and Exchange Board of India (SEBI), stipulates that an advertisement should be truthful, fair and clear and not untrue and misleading.

The Reserve Bank of India has issued detailed directions on advertisements issued by nonbanking financial companies, miscellaneous nonbanking companies and residuary nonbanking companies. It specifies that the advertisements calling for deposits must also state that the deposits being solicited are not insured.

The Insurance Regulatory Development Authority (IRDA) defines a misleading advertisement under IRDA and requires that every insurer, intermediary and insurance agent shall have to get the approval of a compliance officer for the advertising programme. A copy of every advertisement should be filed with the authority.

 

The Telecom Regulatory Authority of India (TRAI), notified The Standards of Quality of Service (Duration of Advertisements in Television Channels) Regulations 2012. It prescribed that ‘No broadcaster shall, in its broadcast of a programme, carry advertisements exceeding twelve minutes in a clock hour and that every broadcaster shall, within fifteen days from the end of a quarter, submit to the authority, in the prescribed format, the details of advertisements carried on its channel.’ However, in practice, popular serials are laced with advertisements exceeding far beyond these time limits.

Television channels are required to follow the advertising code contained in the Cable Television Networks Rules, 1994. The advertising code lays down that the picture and the audible matter of the advertisement shall not be excessively ‘loud’. All advertisements should be clearly distinguishable from the programme and should not in any manner interfere with it. The networks should, therefore, not use the lower part of the screen to carry captions, static or moving alongside the programme. It also specified that the time gap between consecutive advertisement sessions should be at least 30 minutes in case of movies and 15 minutes otherwise

 

The Medical Council of India has issued advertising guidelines in the Code of Ethics Regulations 2002, formulated under the Medical Council Act. The guidelines state that a physician shall not give any approval, recommendation, endorsement, certificate report, or statement regarding any drug, medicine, remedy, surgical or therapeutic article, apparatus or appliance or any commercial product or article, etc. for use in connection with his name, signature, or photograph in any form or manner of advertising through any mode.

In 2010, the Heart Care Foundation of India endorsed Rajdhani besan. The National Consumer Helpline wrote to the Medical Council of India to stop this unethical practice, who in turn forwarded it to the Delhi Medical Council for compliance.

The Press Council of India sets the norms for journalistic ethics and states that the editors should insist on having the final say in accepting or rejecting advertisements based on accuracy, fairness and prepublication verification.

Prasar Bharti has laid down a code for commercial advertising in the electronic media and regulates All India Radio and Doordarshan. These codes specify that the media will not accept advertisements that violate the constitutional guarantees available to all citizens in depicting women, violating their equality and dignity; no advertisement message shall be presented as news; and no advertisements that promote cigarettes and tobacco products, liquor, wines and other intoxicants will be accepted and that advertisements must not be directed towards any religious or political end or have any relation to any industrial dispute.

The codes also specify that advertisements of the following services shall not be accepted: unlicensed employment services; soothsayers and those with claims of hypnotism; betting tips and guide books etc. relating to horse racing and games of chance. In accepting advertisements of educational institutions or colleges, it must be ensured that the institutions or colleges are genuine so that students are not misled. However, despite these provisions, such advertisements still find their way in the media.

 

Thus, there are a large number of laws and prescriptions that guide advertisers in what they can and cannot do. Nevertheless, an increasing number of complaints are not only filed with the ASCI but end up in court. Misleading advertisements by airlines, luring passengers by offering free travel, continue to be issued. The automobile industry makes false claims on fuel economy in their sales pitch and private educational institutes cross the borderlines of acceptable claims. The misleading advertisements continue to cost the consumers heavily.

Furthermore, the development of communication technologies has not only made available to consumers a plethora of entertainment options, but also a huge choice of television and radio channels, newspapers, magazines, games, websites, and social media sites. The dependence on a single channel for entertainment no longer exists, and the audiences have become fragmented by the multitude of choices available to them.

The marketeers no longer find it possible to get the attention of the target audience by using a single media platform. They also face a challenge of reaching the masses over the multitude of entertainment platforms – TV, radio, games, magazines, newspapers, internet, mobile phones and social media sites, to name a few. The younger generation is hooked to the internet and mobile phones; they play video games and download shows that they can watch in 15 minutes rather than spend 30 minutes watching the same shows with commercials. But they may not be able to resist the promotional offers they receive on personal media.

 

The marketeers are using innovative strategies, connecting with consumers on social media websites, through emails, and on their mobile phones, increasingly on a personalized basis. The more consumers try to avoid advertisements, the greater the intrusion into their private space. The more they reject formal advertisements, the more the chances that they will be embedded in their daily life. There are product placements in news shows, movies, sitcoms and games that are watched by both children and adults.

The communication on social websites is no longer a social activity and people are offered coupons and prizes to distract them. Marketeers are using consumer ratings to advertise products and services and many of them are not independent, but written by people paid to write them.

In developed countries, a consumer is tracked through GPS and smart phones and deals are offered at all times. They don’t have to be using the public transport system to be exposed to advertisements. The messages appear and are instantly gone. The consumer has no proof of the offer made to him, unless he is smart enough to print a copy, which is rarely possible if you are on the go. The information on websites is frequently changed and there are cases where offers not only change between placing the order and billing or delivery, but are so customized that it is difficult to compare them, reducing the possibility of joint consumer action.

The new technologies pose a great challenge for regulating content, and all such violations have brought forth new regulation. The present Information Technology Act will have to be revised to respond to these new challenges. While advertisements in the mass media can be scrutinized publicly and advertisers taken to task, it is still a challenge to monitor what is being advertised on hundreds of channels. In comparison to the magnitude of advertisements appearing nationally in different media, the recent efforts of the ASCI are minuscule. What is also important is to monitor whether the advertisements are withdrawn or they continue to be shown, albeit on a different channel.

 

Finally, this brings us to the need for greater regulation of advertising and less dependence on selfregulation. The regulators need to keep their ears and eyes wide open to see what is happening in the public mass media, while not turning a blind eye to innovative and customized communications on personal media like emails, mobile phones or social networking sites and their role in consumer deception. It has also become imperative to educate consumers on how to protect themselves from misleading claims. This is a mammoth task. It will be better to set up an agile and independent authority (independent of commercial interests) to monitor the release of advertisements so that consumers are protected from losses before they happen, rather than pass orders after the advertisements have been released.