These days it is common for companies to rope in celebrities to endorse advertisements to promote companies’ brands – In fact, celebrities are raking millions of dollars with commercials, oblivious to effect of the products they are endorsing, be it Pan Masala, Gutka, Liquor (directly or indirectly through surrogate advertising) and social impact of their acts in such advertisements (vulgarity, double-meaning dialogues, cat-calling, objectifying women, even glamorizing rape culture, as evidenced in recent deos and sprays ads). Sometimes, it looks like no product can sell without scantily clad models.
Unfortunately, a large and vulnerable section of the public is used to getting impressed and purchasing any products (be it a good, bad or ugly) based on endorsement of such brands by celebrities – on the other hand, there is no special law to regulate endorsement of brands, so celebrities know no limit for their adventures.
Given their unapologetic and shameless greed for money so far, I wouldn’t be surprised if tomorrow these very celebrities start endorsing drugs or arms. If people start pinpointing the disparity between their holier-than-thou social image and pronouncements and endorsements, they can claim donating the proceeds and the ads continue more frequently. So, nothing changes ever.
To bring about some change, new regulations (i.e Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022) have been introduced by the central government to regulate misleading advertisements and endorsements.
Key provisions of these guidelines are as follows:
1) Conditions for a valid advertisement
· Representation of a product or service has to be truthful and honest representation.
· No representation or portrait of a consumer right under any law as a feature of a product or service specially offered by the company.
· No misleading of any risk to consumer or family in connection with purchase of the advertised goods, product or service
· Claims to be based on content that will not mislead the consumers
· No misleading exaggeration of the accuracy, scientific validity or practical usefulness or capability or performance of, services goods or product
· No suggestion or reflection of claims made in advertisements are universally accepted when there is a divided opinion on authenticity of such advertisement
· Compliance with all applicable laws and regulations
2. Occasional and unintentional lapse: No advertisement will be invalidated due to occasional and unintentional lapse in the following cases:
a) Deficiency in goods is rectified by advertiser through a timely action
b) Typical specimen of product advertised is sufficient to fulfill the claim or promise made in endorsement
c) Product failures’ proposition is within generally acceptably limits
3. Bait Advertisement:
A bait advertisement shall fulfil the following conditions:
· Products or services offered under bait advertisement shall have to be sold at prices specified in the advertisement – In other words, companies cannot act in contrast to conditions specified in bait advertisement.
· It is responsibility of advertiser to ensure they have adequate stock to meet demand generated by such bait advertisements.
· Advertiser shall ensure that consumers are informed the following (as applicable) in case, such advertiser has a reason to believe that quantity of products will not meet demand generated by bait advertisement:
a) Advertiser has limited quantity of products and may not be able to meet the demand of consumers
b) Intent of advertisement is to evaluate potential demand for the products
· No information (any specific and mandatory restrictions) that is critical for consumer awareness to be removed from advertisement with the intent to mislead consumers.
· No advertisement to be designed in such a way to grab attention of consumers on pretext that stock of products is limited in market and can be purchased by consumers at a low price than normal rate prevailing in the market.
4. Prohibition of surrogate advertising
· Prohibition is imposed on a surrogate advertisement or indirect advertisement which are designed with intent to promote prohibited or regulated products under the pretext of promoting legal products and services.
· Any advertisement that:
makes an envision to consumers that:
a) such advertisement is for products or services with respect to which advertising is prohibited
b) Use of any content (i.e logo, name etc.,) of products or services pursuant to which advertising is strictly prohibited
· Such any advertisement will be considered as a surrogate advertisement or indirect advertisement.
· Mere usage of brand will not make any advertisement as a surrogate advertisement or indirect advertisement to the extent such advertisements are in compliance with applicable parameters.
5. Free claims advertisements.
· Advertisers are strictly restricted from making any advertisement with a description that a product is free or without charge, wherein consumer is required to make the payment (excluding unavoidable pay that has to be made to claim such product) for such product.
· Any free advertisement has to make it clear to what extent, consumer can avail such free products or services.
· If consumer is required to make payment for packing, packaging, handling or administration of such free products or the cost of response is increased (excluding cost increase is related to promotion cost), pursuant to products which consumer has to purchase, then such products advertisements cannot be portraited as free claims advertisements.
· No element of package will be described as free which includes package price.
· Any offer that is tied to non-refundable purchase or ‘satisfaction or your money back’ offer, should not contain term “free trial”.
6. Children targeted advertisements
It is mandated for advertisers to ensure advertisements that targets or uses children shall not:
· Create and promote advertisements that could be dangerous for children in any way including detrimental to children’s physical health or mental wellbeing.
· Exploit or use children’s inexperience, credulity or sense of loyalty to their advantage.
· Result in unrealistic expectations of or exaggerate about such goods, product or service.
· Effect the children physically or psychologically in a way that could create a sense of inferiority complex in children.
· Exhort children or persuade elders or others to purchase any goods, product or services.
· Make pricing qualified by words such as ‘just’ or ‘only’ to reflect low pricing of products where such advertisement includes additional cost or charge.
· Involve or feature in any prohibited advertisements.
· Engagement of celebrity personality in advertisements which involves a health warning.
· Effect ability of children to evaluate characteristics of a product and ability to draw a line between real life situations and fantasy
· Show normal things capable of achieving by an ordinary child as an extraordinary things can be only achieved using endorsed product.
· Promote any product in a way purchase results in a direct exhortation or exploitation of children.
· Promote a product consumption with a claim that such consumption could have a significant progressive effect on children physically and mentally or any other health benefits without back up of proper scientific substantiation of such claims.
· publish in any mass media, with respect to medical services, drugs, dietary supplements, etc., which are adverse to the physical and mental health of children.
· No advertisement shall be used to promote negative body image in children or promote certain food as a better option than natural or traditional foods.
· Any program or channel exclusively meant for children should not telecast any endorsements related to junk foods.
· It is mandated to discourage promotion of promotional advertisements with link to gifts to persuade children wherein such promotional gifts are not actually required.
7. Prohibited advertisements: Advertisements with respect to the following are strictly prohibited:
a) Products whose production or sale is not permitted
b) Advertisements with respect to any products or services is banned
under any law for the time being in force.
8) Disclaimers in Advertisements:
· Purpose of a disclaimer in any advertisement is to:
a) expand or clarify a claim made in such advertisement;
b) make qualifications
c) resolve ambiguities therein in order to explain such claim in further detail.
· No disclaimer shall be in contrast to context or purpose of any advertisement or contain content that may change meaning of words in advertisements to deceiv consumers.
· No attempt to hide any crucial and critical information of any advertisement to (a) deceive consumers or (b) hide commercial intent of advertisement or (c) rectify any misleading claim made in an advertisement.
· Following requirements are mandatory for advertisement disclaimer:
a) Language and font should be the same for content and claim of advertisement and advertisement disclaimer.
b) Advertisement disclaimer should be placed in a visible place on packaging in such a clear way so that normal person will be able to see and read advertisement at a reasonable speed and from a reasonable distance.
(c) If content or claim of advertisement is based on voice over, visual display of advertisement should be in synch with voice over speed.
9. Duties of manufacturer, service provider, advertiser and advertising agency. Every manufacturer, service provider, advertiser or advertising agency to whom these guidelines apply shall ensure that:
Content of any advertisement shall be capable of substantiation as and when needed under these rules
· Research and assessments based advertisements shall indicate the source and date of independent research or assessment.
· Advertisement shall not portrait in such a way to bring any bad reputation to people or companies involved in such advertisements, except with prior written consent of such person or company.
· Advertisements shall not (i) contain content which will mislead consumers or generate exaggeration about products; and (ii) framed in such a way to abuse consumers’ trust and exploit inexperience of consumers.
· Expressions such upto five years guarantee” or “Prices from as low as Rs.“Y”, cannot be used in such advertisements – Advertiser shall have to indicate fixed price and fixed period of guarantee of the product. If in case, components of a product are subject to different guarantees, clear indication of minimum and maximum guarantee period is a must.
· All material conditions and terms relating to any permitted lotteries or prizes competition should be disclosed in advertisements to give consumer a fair idea of competition and their involvement in it.
10. Due diligence required for endorsement of advertisements
Genuine and current opinion and representation of a person or organization endorsing any advertisement should be basis for any endorsement of advertisement. Such opinion and representation should be based on authentic information and experience
If any advertisement based on any profession by Indian professionals is prohibited by law for the time being in force, then, same advertisement by foreigner professionals of such profession is also prohibited.
11. Disclosure of material connection. Any connection amid the endorser and the trader, manufacturer or advertiser of the endorsed product should be disclosed in the advertisement which could materially affect the value or credibility of the endorsement.
This is a good beginning to say the least. One can hope the all the concerned quarters (celebrities included) would be sensible about the advertising business.
