By Prabhakar Mundkur
For some time now, the Advertising Standards Council of India (ASCI) has been the subject of criticism about its effectiveness. There is the annual rant in the media with various commentators taking potshots before or during an IPL which sees a major blip in advertising in India. ‘Watchdog’, which is often used to describe the ASCI, is perhaps not wholly descriptive of what it does. It can watch like a dog, but I am not sure it can bite. To bite you need legislation and now we have the Department of Consumer Affairs which has the teeth to bite. In the UK, for example, it is not the ASA that is considered the watchdog, but the Competition Markets Authority. The CMA has teeth. It is a non-ministerial government department to prevent anti-competitive activities. The Indian equivalent is the Competition Commission of India which was formed under the Competition Act 2002, which was formed when the erstwhile MRTP Act was repealed. But unlike the MRTP, which was very high profile, you don’t hear much about the CCI. That’s a pity!
Most critics of course miss the point that the ASCI is the advertising industry’s self- regulatory body. In many ways, it is the industry’s conscience that tells you what is misleading. And like we can always overcome our own conscience even when it is telling us not to do something, an advertiser can knowingly bend the rules. When you can overcome your conscience, you are being unscrupulous.
But coming back to the issue of misleading advertising, there are several bodies that are responsible for misleading advertising in the country. For example, the Cable Television Network Rules does not permit advertising for alcohol or tobacco products. Section 7 of the Rules on the Advertising Code has an exhaustive list of things that cannot be permitted.
(viii) promotes directly or indirectly production, sale or consumption of- (A) cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants;
But rarely does anyone complain to the network channels that surrogate advertising for alcohol is being found objectionable by then. After all isn’t ASCI the favourite whipping boy for advertising that seems to cross the borders of acceptable advertising norms?
(1) The Central Authority may, after receiving any information or complaint or directions from the Central Government or of its own motion, conduct or cause to be conducted a preliminary inquiry as to whether there exists a prima facie case of violation of consumer rights or any unfair trade practice or any false or misleading advertisement, by any person, which is prejudicial to the public interest or to the interests of consumers
– The Consumer Protection Act, 2019
Equally, the Consumer Protection Act 2019 issued by the Ministry of Law and Justice protects the interests of consumers through legislation and it has a mechanism for accepting consumers complaints. It also has the authority to disburse fines for misleading products or advertising. Violation of their guidelines for endorsement can attract penalties from Rs 10 lakh to Rs 50 lakh.
So why is the ASCI the favourite pick of advertising-watchers when they find objectionable advertising in our media? If one actually looks at the number of regulatory bodies in the country there are quite a few.
1. Food Safety and Standards Authority (FSSAI)
2. Central Drugs Standard Central Organisation (CDSCO)
3. Insurance Regulatory Development Authority
4. Telecom Regulatory Authority of India
5. Securities and Exchange Board of India
6. Reserve Bank of India
7. Medical Council of India
8. Competition Council of India
9. Consumer Protection Act 2019
But perhaps what India lacks is an inter-disciplinary body or an inter-ministerial apex body that can look at the subject of misleading advertising.
For example, if we take the UK as a market, the Competition Markets Authority and the ASA form a powerful duo against misleading advertising. Also, misleading advertising can be controlled by the Consumer Protection from Unfair Trading Regulations 2008 and Business Protection from Misleading Marketing Regulations 2008. The Office of Communications (Ofcom) is the ASA’s co-regulatory partner and legal backstop for regulating TV and radio advertisements. The Financial Conduct Authority for example in UK blocks several financial services ads. In 2022, it removed 8582 consumer promotions and published over 1800 alerts to prevent consumers from losing their money to financial scams.
The House of Commons briefing paper considers the ASA ( Advertising Standards Authority ) and the regulation of advertising in the UK and therefore has the indirect consent of the government unlike the ASCI.
The ASA working hand in hand with the Competition Markets Authority gives the ASA very large teeth indeed. And the CMA will get some very extra large teeth from the Digital Markets, Competition and Consumer Bill to be introduced shortly. Also, the several legislations provide a whole bag of weapons for the ASA to conduct their business of tracking misleading advertising.
In closing, I would like to point out that in markets like the UK it is possible for the self-regulatory body the ASA in the UK to have very large teeth that can bite those that stray away from the advertising standards code. India pales in comparison.
So I leave you to decide whether the ASCI is a toothless tiger or is just being made a scapegoat for the lapses in the fight against misleading advertising in India.
Prabhakar Mundkur is a veteran advertising professional and commentator. If it’s not his views on A&M, he’s very busy with his music, and in the lockdown produced several music videos (some 100-odd). His views here are personal.