Self-Declaration Certificates for Advertisements: Supreme Court and MIB’s Mandate

The article discusses self-declaration certificates for advertisements with reference to the Supreme Court's judgment in Indian Medical Association v. UOI and a directive by the Ministry of Information and Broadcasting.
Ahlawat & Associates - Gaurav Bhalla, Parag Singhal
Ahlawat & Associates - Gaurav Bhalla, Parag Singhal

Advertising in India now requires advertisers and advertising agencies to comply with an additional legal requirement. The Supreme Court recently in the case of Indian Medical Association & Anr. v. Union of India & Ors. [Writ Petition (Civil) No. 645 of 2022] vide its Order dated May 7, 2024, addressed the issue concerning misleading advertisements, the inefficiency of a robust mechanism and the liability of advertisers/ advertising agencies concerning misleading advertisements.

By virtue of the Supreme Court’s directions, the Ministry of Information and Broadcasting (MIB) issued a press release on June 3, 2024, and has mandated the requirement of self-declaration certificate for advertisers/ advertising agencies across print/ broadcast/ digital media platforms, affirming that the advertisements are free from misleading claims and in compliance with regulatory guidelines.

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Background – Order issued by the Court in Patanjali Misleading Advertisements Case

In the instant case, the Indian Medical Association (hereinafter referred to as the petitioner) had filed a writ petition alleging that the respondents have made false and unsubstantiated claims (via advertisements and press conferences) regarding the efficacy of their products in the treatment of few diseases, which advertisements are explicitly prohibited to be advertised and are in clear violation of the provisions under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (Drugs Act, 1954) and the Consumer Protection Act.

During the course of proceedings, it was revealed that Patanjali has often advertised their products as cures for serious diseases without any scientific evidence and such unsubstantiated claims were not only false but potentially harmful as people may consider using Patanjali’s misleading products which might lead people to abandon proven medical treatments. The Bench further identified the lack of a “robust mechanism” to oversee whether advertisers/ advertising agencies effectively implement and comply with the obligations mandated under the Drugs Act, 1954 (and the Rules thereunder), the Drugs and Cosmetics Act, 1940, the Consumer Protection Act, and the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, released by the CCPA.

In light of the same, the Supreme Court further observed that the advertisers/ advertising agencies and endorsers are also equally responsible for issuing false and misleading advertisements as these endorsements made by public figures/ influencers/celebrities, etc. create a high impact in the minds of consumers. Hence, influencers/ celebrities/ endorsers must act with a sense of responsibility when endorsing any products/ services.

After emphasizing the need for stringent compliance with the applicable laws concerning misleading advertisements, the Court exercised its power under Article 32 and Article 141 of the Constitution to enforce the fundamental right to health and mandated the ‘self-declaration certificate’ requirement by advertisers/ advertising agencies.

Existing Legal Framework and Regulatory Mechanism

It is pertinent to note that before publishing/ printing/ broadcasting any advertisement concerning any products/ services, the advertisers/ advertising agencies must effectively implement and comply with the following obligations mandated under the general/ sector-specific regulations:

(i) The Consumer Protection Act, 2019 along with the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.

The Act provides a framework to protect consumers from unfair trade practices (including misleading advertisements) and empowers the CCPA to regulate matters concerning misleading advertisements under Section 21 of the Act. Further, Section 10 of the Act grants the CCPA the authority to initiate actions against misleading advertisements and impose penalties.

Further, the CCPA has also released the 2022 Guidelines, which require compliance from all stakeholders engaged in providing advertisement related services. While the Guidelines do not outline any penalties for non-compliance, the CCPA can levy penalties stipulated under the Act, including imprisonment/ fines (of as much as INR 50 lakh).

(ii) The Cable Television Networks (Regulation) Act, 1995

The Act prohibits advertisements which are false, deceptive, or likely to mislead consumers about the nature, substance, quality, or quantity of goods or services. Further, Rule 7 of the Cable Television Rules, 1994 prescribes certain standards for advertisements to ensure that the advertisements are lawful and do not “offend morality, decency and religious susceptibilities of the subscribers."

(iii) Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954

The Act aims to restrict misleading advertisements concerning drugs and remedies that claim to have magical properties or falsely promise to cure certain diseases and disorders. The primary aim is to protect consumers from deceptive marketing practices and ensure that claims made in advertisements are scientifically substantiated.

(iv) ASCI’s Code for Self-Regulation of Advertising Content in India

According to the ASCI’s Code, advertisements must be truthful and should not mislead consumers about any aspect of the goods or services. This includes misleading and unsubstantiated claims regarding the product’s performance, benefits etc. Further, advertisers/ advertising agencies are expected to comply to the ASCI’s self-regulation Code while creating/ publishing/ broadcasting any advertisements.

(v) ASCI’s Guidelines for Influencer Advertising in Digital Media

As per ASCI’s guidelines, influencers must clearly disclose any material connection with the brand they are promoting and the Guidelines further prescribe that all advertisements published by social media influencers on their accounts must carry a disclosure label, which must be upfront and prominent. Further, the influencers are advised to review and satisfy themselves that the advertiser is in a position to substantiate the claims made in the advertisement.

Government Directives and Requirements of the Self-Declaration Certificate

In compliance with the directive, on June 3, 2024, the MIB issued a press release calling upon the advertisers to comply with the order from June 18, 2024 onwards. Accordingly, every advertiser/ advertising agency is required to submit a self-declaration certificate certifying that the advertisement does not contain any misleading information/ claims and complies with relevant regulatory guidelines, including those stipulated under Rule 7 of the Cable Television Networks Rules, 1994 and the Norms of Journalistic Conduct of Press Council of India, before any advertisement is published/ printed/ broadcasted 

Subsequently, advertisers are required to provide proof of uploading the self-declaration certificate for advertisements to the relevant broadcaster/ printer/ publisher for their records. To ensure the streamlined submission of these certificates, the MIB has also launched dedicated portals to enable advertisers to submit certificates (duly signed by an authorized representative) for TV and radio advertisements as well as for print and digital advertisements.

Procedure to obtain the Self-Declaration Certificate for Advertisements

The MIB has issued certain guidelines and has prescribed the procedure for uploading self-declaration certificates for advertisements which is discussed herein below.

As a first step, an authorized representative will need to execute the self-declaration certificate for advertisement on behalf of the advertiser/ advertising agency. It is to be noted that the self-declaration certificate will need to be uploaded on the Broadcast Seva Portal for any advertisements to be aired on TV/ Radio. In case of advertisements in print/ digital media, the self-declaration certificate will require to be uploaded on the Press Council of India Portal.

Further, the Advertisers/ Advertising agencies are required to provide certain details (viz. description of the product/ service being advertised, advertisement title, description of advertisement, proposed date of first broadcast/ publishing of advertisement, and the respective URLs and/ or pdf file of actual advertisement), followed by submission of the acknowledgment receipt to the respective publisher/ broadcasters.

Concerns as regards the Self-Declaration Certificate requirement

While the intent behind the directive is to ensure transparency and responsible advertising practices, the self-declaration certificate requirement raises several concerns concerning its implementation by stakeholders and potential impact on the advertisement industry.

One such concern is with the business entities which make claims concerning their goods/ services on their official websites since there is no clarity if such claims will also be construed as advertisements (for the purpose of these guidelines/ directives). Secondly, businesses have started listing their products on third-party e-commerce platforms and make certain claims about their products/ services. In such a scenario, there is a dire need for clarification on whether such e-commerce platforms be considered as publishers and thereby mandated to comply with the directives (prior to publishing/ displaying any products on their platforms).

Further, considering the vibrant online space, many influencers/ celebrities are involved in endorsement of third-party products/services, however, there is no clarity concerning the self-declaration certificate requirements for these influencers/ celebrity endorsers. Moreover, the portals also do not allow to modify the particulars of the advertisement once submitted (which could be required in some unforeseen scenarios).

Conclusion

The observations made by the Court and directives issued by the MIB are definitely a welcome step towards ensuring transparency and responsible advertising practices, thereby bolstering consumer welfare and protection against misleading advertisements.

While the requirement mandating the submission of self-declaration certificates for advertisements is commendable in its intent, concerns regarding its efficacy in safeguarding consumer interests continue to persist as this requirement may potentially overburden the advertisers, advertising agencies, and the Ministry itself, particularly in this digital era when we are increasingly relying on artificial intelligence for task automation.

Nevertheless, as the directives take effect from June 18, 2024 onwards, it will be interesting to observe the verification mechanism established by the authorities to verify the details of the self-declaration certificates for advertisements and how stakeholders navigate these changes to uphold consumer trust and confidence, as the advertising landscape evolves in response to these directives.

About the authors: Gaurav Bhalla is a Partner and Parag Singhal is an Associate at Ahlawat & Associates.

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