A "self declaration" certificate is mandated for all new advertisements starting on June 18 as stipulated by the Ministry of Information and Broadcasting (MIB). The Ministry said in a statement that in order to facilitate the expeditious submission of these certifications for TV and radio advertisements, the government has added a "new feature" to the MIB's Broadcast Seva Portal.
The Ministry implemented these guidelines in compliance with a Supreme Court directive issued on May 7, 2024, in the case of Indian Medical Association & Anr. v. Union of India & Ors. This case addressed the issue of Patanjali's alleged misleading advertisements for its product 'Coronil' and false claims regarding the treatment of COVID-19 related illnesses. The court noted a lack of an effective framework to guarantee adherence to the existing regulations such as Central Consumer Protection Authority’s guidelines for prevention of misleading advertisements, 2022. against deceptive ads.
The Supreme Court's ruling on May 7, 2024, might be viewed as the culmination of increasing public concerns and attempts by consumer rights organisations to address unethical advertising methods that not only undermine consumer confidence but also have the potential to cause financial and physical harm. The annual complaints report of ASCI for 2023-24 revealed that a staggering 81% of the 8299 assessed online advertisements contained misleading claims or unsubstantiated promises, substantiating the widespread nature of the malpractice in the advertisement industry.
Where do these Guidelines fit within the existing scheme of things?
Earlier an action against an advertisement could have been started at either the consumers end or by the regulatory authority itself through a suo moto action. The investigation and data gathering with respect to the advert started thereon. Through a self declaration requirement the commercial and veracity of its “claims” through the self-declaration certificate would then be tested against the already existing regulations and guidelines through the complete information about the ad provided during the filing of self declaration certificate.
The self-declaration certificate is not meant to fully substitute existing advertising rules. Instead, it functions as a mechanism of accountability, implementing a self-validation system for marketers to ensure the accuracy of their statements through an additional layer of compliance along with the already specified standards by Consumer Protection Authority and the ASCI.
Key Operational Framework of the Guidelines and Efficacy
What would these guidelines mean for the advertisers and other stakeholders?
In the past, the task of evaluating advertising was mostly the duty of broadcasters, publishers, and digital platforms. Nevertheless, regulators and the ASCI frequently lack the necessary resources or incentive to meticulously examine each advertising, especially in the rapidly evolving digital realm. By implementing self-declaration, advertisements are now held accountable for their claims, which may discourage them from making false statements out of fear of facing consequences.
Nevertheless, this also imposes a further obligation on marketers and advertising agencies, since they must now complete the procedure of acquiring a self-declaration certificate prior to releasing or airing any commercial, potentially increasing cost and decreasing global competitiveness of Indian players in the market.
An interesting factor which would need to be assessed is the fallout of these guidelines on intermediaries who are merely airing or publishing ads on their platforms. Another stakeholder which would be affected are small or individual creators who may need to give account of everything they endorse through digital means, where the sheer volume of them alone along with the scale of operations being small, shall potentially be cumbersome for them.
Way Forward
In spite of the issues regarding increase in costs, the guidelines and the resultant self declaration requirement are here to stay. Consequently, it is better for ad agencies and creators to adopt the know-how of this requirement as soon as possible, in order to make way for operational efficiency and reduced compliance costs along with the ensuring their marketing efforts are in line with the existing regulations in place, both by the sectoral regulators as well as ASCI.
A step in this regard would be to make themselves familiar with steps in filing the self declaration certificate, notably the letter of authorisation which to be filed preferably before June 18 and continue to file declaration certificates for the ads they later want to put out in the market. Registering themselves with the MIB self declaration portal including the login interface would be the consequent steps. Advertisers can download the sample declaration form here.
