Advertisement Laws in India

ADVERTISEMENT LAWS
IN INDIA
BY- SWATI ANAND
introduction
Advertisements are the method of promoting the sale, generally used to promote
marketing strategically. One should not get confused between advertisement and
propaganda; propaganda is what the governments use to promote their policies.
Advertisement can be done by both printed and digital methods. Television, radio,
newspaper, internet all can be used for the purpose of advertisement. According to a
survey, an average of 600 US billion dollars is used worldwide in advertisements.
Human civilization has seen a different form of advertisements right from the ancient period. Wall paintings,
announcements, campaign displays were the form of advertisement during the ancient times. These methods
are however even now being used in some parts of Asia. With modernisation, new methods of advertisements
have been introduced. However several issues of misuse of advertisements have been observed, and this has
forced the governments all around the world to enforce strict laws to keep a check upon misuse of
advertisements. This article is trying to explain how the advertising law works in India and what organization is
responsible for keeping a check on it.
Legal framework in india
• In the previous few years, advertisement in India has seen the vast transformation. From the
Doordarshan and Prasar Bharti way of advertising to the modern television channel and media,
however with increasing misuse such as promoting a prohibited medicine, promotion of alcohol,
promotion of toxic substance such as cigarette tobacco, etc. forced the government to pass several laws
to keep in check such sought of advertisements. Let’s take a look at the several legislations that are
responsible for controlling misleading advertisements:
• Press Council of India Act, 1978
• Cable television regulation act, 1955 and Cable television amendment act, 2006
• Establishment of the ASCI (Advertisement standard council of India), 1985
• The Advertising Standard Council of India was established as a nonstatutory tribunal. It created a self-
regulated mechanism of introducing the advertising ethics in India. The ASCI judges the advertisements
based upon its Code of Advertising Practice, also known as the ASCI code. This Code applies to
advertisements read, heard or viewed in India even if they originate or are published abroad so long as
they are directed to consumers in India or are exposed to a significant number of consumers in India.
The consumer protection Act, 1986 and advertising
• The Section 6 of this Act grants consumers the right to be informed

about the quality, quantity, potency, purity, standard and price of
goods or services, as the case may be to protect the consumer against
unfair trade practices. Section 2(r) of the Act, under the definition the
term “unfair trade practice”, it also covers the gamut of false
advertisements including misrepresentations or false allurements.
And to redress against such unfair trade practices on false
advertisements may be sought under the Act.
•
The cable television network Act, 1995& the Cable Television
Amendment Act, 2006 and advertising
• Section 6 of the Cable Television Networks (Regulations) Act, 1995 provides that
no person shall send or transmit through a cable service any advertisement unless
such advertisement is in conformity with the advertisement code prescribed under
the Cable Television Networks (Amendment) Rules, 2006. However, the provision
above does not apply to programs of foreign satellite channels which can be
received without the use of any specialized gadgets or decoder.
• Also the Rule 7 of the Cable Television Networks (Amendment) Rules, 2006 lays
down the “Advertising Code” for cable services which have been formulated to
conform to the laws of the country and to ensure that advertisements do not
offend morality, decency and religious susceptibilities of the subscribers.
•
Restrictions on advertising under the Cigarettes and other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution)
Act, 2003
• Section 5 of this Act, prohibits both direct & indirect advertisement of

tobacco products in all forms of audio, visual and print media.
Advertising regulations under Drug and Magic Remedies Act,
1954 & Drugs and Cosmetics Act, 1940
• This Act is for regulating the advertisements of drugs in certain cases

and to prohibit the advertising for certain purposes of remedies alleged
to have magic qualities and to give for matters connected therewith; –
Section 29 of the Drugs and Cosmetics Act,1940 imposes a penalty
upon whoever uses any report of a test or analysis made by the Central
Drugs Laboratory or by a Government Analyst, or any extract from such
report, for the purpose of advertising any drug. The punishment
prescribed for such an offense is fine which may extend up to five
hundred rupees and imprisonment up to ten years upon subsequent
conviction.
Advertising restrictions under Prenatal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act, 1994 & Young Persons (Harmful Publications) Act, 1956
• Advertisement in any manner regarding facilities of pre-natal

determination of sex available at any genetic counselling centre,
laboratory, clinic or any other place is prohibited under this Act and
has been made a punishable offence under the Act (Section 22); –
Section 3 of the young person harmful Publication Act,1956, inter alia,
imposes penalty for advertising or making known by any means
whatsoever that any harmful publication (as defined in the Act) can
be procured from or through any person.
The Indian Penal Code and criminality of advertisements:
• The IPC, vide an array of provisions, prohibits obscene, defamatory

publication, publication of a lottery and statements creating or
promoting disharmony/ enmity in the society. While it is not implicitly
written, any advertisement that related to an offence, like hiring a
contract killer or inciting violence, terrorism or a crime is illegal and
will be punished under IPC or other applicable provisions.
• Food Safety and Standards Act, 2006- Section 53 of this Act provides a
penalty of up to Rs. 10 lakhs for false and misleading advertisements
relating to the description, nature, substance or quality of any food;
• Indecent Representation of Women (Prohibition) Act, 1986- This Act is
aimed at prohibiting indecent representation of women through
advertisements or in publications, writings, paintings, figures or in any
other manner and for matters connected therewith or incidental
thereto (Section 3 and 4 of the Act).
• Young Persons (Harmful Publications) Act, 1956- Section 3 of the Act,
inter alia, imposes penalty for advertising or making known by any
means whatsoever that any harmful publication (as defined in the
Act) can be procured from or through any person;
• The Representation of People Act, 1951- The display to the public of
any election matter by means of cinematograph, television or other
similar apparatus in any polling area during the period of forty-eight
hours ending with the time fixed for the conclusion of the poll for any
election in the polling area is prohibited under the Act (Section 126).
The advertisement makers must follow the following ethical values:
• Should be true.
• Must not be illegal.
• Must not misguide the society, especially children.
Regulatory Authorities
• Advertising Standards Council of India (ASCI) is a self regulatory voluntary organization of the
advertising industry. The ASCI has drawn up a code for self regulation in the advertising industry with a
purported view to achieve the acceptance of fair advertising practices in the best interests of the
ultimate consumer. The ASCI also lays down similar codes for advertisements in specific
sectors/industries from time to time. However, the codes are self-imposed discipline to be followed by
those involved in the industry and in no way are the codes mandatory. As such, compliance with the
code is rare and very few complaints are actually received by the ASCI on account of non-compliance.
Nevertheless, the Cable Television Networks (Amendment) Rules, 2006, under Rule 7(9) makes it
mandatory for all advertisements carried by cable services to be compliant with the ASCI code.
According to the ASCI code, complaints against deviant advertisements can be made by any person who
considers them to be false, misleading, offensive, or unfair. The Consumer Complaints Council (CCC)
considers and decides on the complaints received from the general public including government
officials, consumer groups, complaints from one advertiser against another and even suo moto
complaints from the member of the ASCI Board or CCC.
• The Reserve Bank of India, SEBI and the IRDA are some of the other regulatory authorities that regulate
advertisements in their respective fields.
• A popular method of advertisement is comparative advertising where one product/ service is advertised by comparing
them with the goods or services of another party. Such other party is usually a competitor or the market leader of that
good or service. The comparison is made on the basis of quality, price, availability, performance, etc. with a view
towards increasing the sales of the advertiser, either by suggesting that the advertiser’s product is of the same or of a
superior quality. However, such advertisements often lead to infringement of trademarks of the competitors (as per the
Trademarks Act, 1999) and promote unfair competition. Such comparative advertisements also cause disparagement of
the product/ service of the competitor although the term ‘disparagement’ is not defined under any of the existing Indian
laws.
• The Delhi High Court in Reckitt & Colman v. Kiwi TTK [2] clarified the position of law in this regard as follows:
• “The settled law on the subject appears to be that a manufacturer is entitled to make a statement that his goods are the
best and also make some statements for puffing his goods and the same will not give a cause of action to other traders
or manufacturers of similar goods to institute proceedings as there is no disparagement or defamation to the goods of
the manufacturer so doing. However, a manufacturer is not entitled to say that his competitor’s goods are bad so as to
puff and promote his goods. It, therefore, appears that if an action lies for defamation an injunction may be granted.”
• An action against such advertisements may lie at the instance of the manufacturer or marketer before the civil court and
at the instance of the consumer, provided it contains a false representation, before the consumer forum under the
Consumer Protection Act, 1986.
CONCLUSION
• To sum up, it can be said that multiple laws pertaining to
advertisement in general and those relating to specific sectors cause
utter confusion in the minds of the manufacturer/ service provider as
well as the consumers. Further, none of the existing laws particularly
address the issues of advertisements in cyberspace. The absence of a
single statutory regulatory body further aggravates the problem. A
comprehensive law/ regulation on advertising in all forms of media
which shall provide clarity in the matter and act as a one-stop window
for all matters relating to advertising is highly desirable.

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ADVERTISEMENT LAWS

• The Section 6 of this Act grants consumers the right to be informed

• Section 5 of this Act, prohibits both direct & indirect advertisement of

• This Act is for regulating the advertisements of drugs in certain cases

• Advertisement in any manner regarding facilities of pre-natal

• The IPC, vide an array of provisions, prohibits obscene, defamatory

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