legal environment & advertising ethics

Alan Collaco Secretary General Advertising Standards Council of India

  Advertising standards council of India (ASCI) ◦  A voluntary self-regulatory council ◦  Formed in 1985

  ASCI team comprises of Board of Governors and Consumer Complaints Council (CCC)

  Overarching Goal of ASCI ◦  To maintain and enhance the public's confidence in

advertising.

  All 4 sections connected with advertising viz.: ◦  Advertisers ◦  Advertising Agencies ◦  Media (owners of press, television, Radio etc.) ◦  Related sectors (outdoor agencies, PR, market researchers,

ad producers, business schools etc.) come together & agree to voluntarily comply with a set of guidelines or rules ie the code to protect: ◦  Consumer interest ◦  Ensure fair play amongst competitors

  To ensure the truthfulness and honesty of representations and claims made by advertisements and to safeguard against misleading advertisement.

  To ensure that advertisements are not offensive to

generally accepted standards of public decency.

  To safeguard against the indiscriminate use of advertising for the promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large.

  To ensure that advertisements observe fairness in

competition so that the consumer’s need to be informed on choices in the market-place and the canons of generally accepted competitive behaviour in business are both served.

Laws that affect Advertising in India   Cable Television Network Act   Drugs and Cosmetics Act   Drugs Price Control Act,   Drugs and Magic Remedies (Objectionable

Advertisements) Act,   Emblems and Names (Prevention of Improper Use) Act   Copyright Act   Trademarks Act   Patents Act – Introduction to Intellectual Property

Right   Indecent Representation of Women (Prohibition) Act

  No Advertisement Which Violates The Code For Self-Regulation In Advertising As Adopted By The Code By The Advertising Standards Council Of India (ASCI), Mumbai Of Public Exhibition In India, From Time To Time, Shall Be Carried In The Cable Service

  Derides any race, caste, color, creed and nationality;   Is against any provision of the constitution of India;   Tends to incite people to crime, cause disorder or violence, or

breach of law or glorifies violence or obscenity in any way;   Presents criminality as desirable;   Exploits the national emblem, or any part of the constitution or

the person or personality of the national leader or a state dignitary;

No Advertisement Shall Be Permitted Which:-

No advertisement shall be permitted • Which projects a derogatory image of women. • Women must not be portrayed in a manner that emphasizes passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. • Portrayal of the female form, should be tasteful and aesthetic, and within the well established norms of good taste and decency; • Exploits social evils like dowry, child marriage;

Promotes directly or indirectly production , sale or consumption

of : 1.  Cigarettes, tobacco products, wine, alcohol, liquor or other

intoxicants; “Provided that a product that uses a Brand name or Logo

which is also used for cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants, may be advertised on cable service subject to the following conditions that:-

  The story board or visual of the advertisement must depict only

the product being advertised and not the prohibited products in any form or manner;

No advertisement shall be permitted

Drug and Cosmetics Act 1940

(Amended 1995)

The Act regulates the import into, manufacture distribution and sale of drugs and cosmetic in the country The Act was amended to impose more strict penalties for manufacture and sale of adulterated or spurious drugs or drugs not of standard quality which are likely to caused death or grievances hurt to the user

  Cosmetics included toilet soap as it may contain harmful ingredients

  The competent gelatin was induced in the drug

  Patent and proprietary medicines included Ayurveda, Siddha or Unani systems of medicines

  The Central Government is empowered to prohibit import of manufacture of drugs and cosmetics if it is harmful to humans as well as animals

  Any person with license has to maintain records and other documents and to produce them when required

  Inspectors are empowered to stop and search any vehicias carrying drugs & cosmetics if an offence under the Act is being committed

  enhancement of the quantum of punishment for offences under the Act

  The Technical Advisory Board will have representatives or experts in Ayurvedic, Siddha and Unani systems of medicine

The Drug & Magic Remedies (Objectionable Advertisement)

Act 1954

This is an act to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected herewith

According to the Act “Magic Remedy” includes a talisman mantra, kavacha and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure mitigation, treatment or prevention of any disease in human beings or animals

The legislation enacted by the center, was under the entry “Drugs and Poisons” and “Legal, Medical and other Professions” in the concurrent list

1)  Subject to the provisions of this Act, no person shall take part in the publication of any advertisement relating to a drug if the advertisement contains any matter which:

  Directly or indirectly gives a false impression regarding the true character of the drug

  Makes a false claim for the drug

  Is otherwise false or misleading in any particulars

2) No person shall import into and export from India certain ads referred to section 3,4 and 5 which has been prohibited

3) No person shall take any part in the publication of any advertisement referring to

any drugs in terms which suggest or are calculated to lead to the use of that drug for:

  The miscarriage in women or prevention of conception in women

  The maintenance or improvement of the capacity of human being for sexual pleasures

  The correction of menstrual disorder in women

  The diagnosis, cure mitigation, treatment or prevention of any disease, disorder or condition specified in the schedule or which is specified in the rules

Drugs (Price Control) Order 1995

The order was passed so that the government may regulate the equitable distribution and increasing supplies of a bulk drug specified in the first schedule and make it available at a fair price and specify a maximum sale price at which such bulk shall be sold

  If the manufacturer desires a revision of the maximum sale price and application may be made to the government

  The manufacturer has o give details of all scheduled drugs along with the cost of such bulk drugs

  The government can by this order, direct manufacturers to sell to other manufacturer of formulations of it deems necessary

  The government had the power to fix the retail price of a scheduled formulation. This fixed price cannot be increased by any manufacturer

The Emblems and Names

(Prevention of Improper Use) Act 1950

This is an act to prevent the improper use of certain emblems and names for commercial and professional purposes. It extends to the whole of India and also applies to citizens of Indian living outside India. The name, emblem or official seal of the following organizations cannot be used:

  United Nations, World Health Organization, The Indian Flag, The Government of India or any of its departments, The State Government, The President, Governor, UNESCO, The International Civil Aviation Organization, World Metrological Organization, International Atomic Energy Agency.

  The name of pictorial representation of Rashtrapati Bhava, Raj Bhavan, Chhatrapati Shivaji Maharaj or Mahatma Gandhi, Jawaharlal Nehru, Srimati Indira Gandhi or the Prime Minister of India.

  The name of Ashoka Chakra and Dharma

Chara or the pictorial representation of Ashoka Chakra as used in the Indian Nat5ional Flag, the name of parliamenet or legislature of any state, the supreme court, High Court, The Central Secretariat

  The name and emblem of The Rama Krishna

Math and Mission, Sri Sarada Math and The Rama Krishna Sarda Mission, The Bharat Scouts and Guides with its emblem, the name and emblem of the International Olympic Committee, The National Youth Emblem, The emblem of St. John Ambulance Association (India) and St. John Ambulance Brigade (India)

The Copyright Act, 1957

It introduced several new features which are briefly indicated below:   A Copyright Officer is sought to be established under

the immediate control of a Registrar of Copyrights who shall act under the superintendence and direction of the Central Government. The principal function of the Copyright Office will be to maintain Register of Copyrights in which may be entered, at the option of being and other relevant particulars. Such a Register will easily make available useful information to interested members of public in regard to copyrighted works

  An author assigning copyright in his work is allowed the option to re-acquire the copyright after seven years but before ten years of the assignment on the condition that he returns the amount received by him at the time of the assignment with interest thereon.

  The normal of the copyright is fixed to be the life of the author and a period of 25 years after his death as against the existing term of the life of the author, and a period of 50 years after his death. Shorter terms are fixed for anonymous or pseudonymous works, cinematograph films, mechanical contrivances, photographs, etc

The Trademarks Act 1999

The Trade and Merchandise Marks Act, 1958

It had served its purpose and review of the existing law was necessary because of developments in trading and commercial practices, increasing globalization of trade and industry, etc a need for simplification and harmonization of trademark and to give effect to important judicial decision.

Hence the Trademark Act, 1999 Incorporated the following

  The registration of trademarks for services in addition to goods

  Registration of trademarks which are limitation of well known trademarks not to be permitted.

  Simplified procedure for registration with equal rights

  Enhancing punishment for the offences

relating to trade marks

  Appointing and Appellate Board for speedy disposal of appeals.

  The final authority for registration of certification trademarks to the Registrar instead of the Central Government

The Patents Act 1970

It extends to the whole of India. Person who can apply for patents;

  Is the first inventor of the invention

  Is any person being an assignee of the person who claims to be the first invention

  Is any representative of any deceased person who immediately, before his death was entitled to make such an application

Application has to be for one invention only and has to be made in the prescribed form and filed in the patent office

When a provisional application is made, a complete specification has to be filed within 12 months otherwise the application is deemed to be abandoned

Every International application under the Patent Co -operation Treaty for a patent may be filed designating India only if a corresponding application has also to be filed before the Controller in India. The date of filling in both the places has to be same.

The Indecent Representation of

Women (Prohibition) Act 1986

It extends to the whole of India, except the State of Jammu and Kashmir   No person shall publish or cause to be

published, or arrange to take part in the publication or exhibition of any ad which contains indecent representation of women in any form

  Prohibition of publication or sending by post of books, pamphlets, slide, films, drawing; photographs, etc containing indecent representation of women

  Under the Indecent Representation of Women (prohibition) Act, “Indecent representation of women by the way of depiction of the figure of a woman, her form of body, or any part thereof to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals.”

The act will not apply of the prohibition is proved to be justified on the grounds that such book, pamphlet, etc is in the interest of science, literature, art or learning. Any representation sculptured, painted or otherwise represented on or in:   Ancient monument   Any temple of any car used in the conveyance

of idols or kept or used for religious purpose

Prasar Bharati Bill

  Prasar Bharati was established in 1997 following a demand that the Government owned broadcasters in India should be given autonomy, Parliament passed the Act in 1990 but it was enacted in 1997

  The Bill introduces Prasar Bharati as a Public Service Broadcaster whose primary broadcast to the public is socially and culturally relevant and in public interest and welfare

  Cigarettes, tobacco, alcohol and other intoxicants as well as infant milk substitutes, feedings bottles and infant foods are prohibited

  Doordarshan has made a significant contribution to accelerate and stimulate scientific tempo

The main features of the code are:

  Ads should be as per the laws enacted to protect the rights of the consumers

  Ads should not project a derogatory image of women and endanger the safety of children

  The programmes should not criticize friendly countries

  Ads should not attack religions or communities

  Ads should not be obscene or defamatory

  Ads should not incite violence