Transcript Legal Environment &Advertising Ethics

Alan Collaco
Secretary General
ASCI
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Advertising standards council of India (ASCI)
◦ A voluntary self-regulatory council
◦ Formed in 1985
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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.
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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
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To ensure the truthfulness and honesty of
representations and claims made by advertisements
and to safeguard against misleading advertisement.
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To ensure that advertisements are not offensive to
generally accepted standards of public decency.
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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.
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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
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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
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No Advertisement Which Violates The Code For SelfRegulation 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
No Advertisement Shall Be Permitted
Which:
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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 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;
No advertisement shall be permitted
Promotes directly or indirectly production , sale or consumption
of :
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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;
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
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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
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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
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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:
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The miscarriage in women or prevention of
conception in women
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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
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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:
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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.
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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
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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:
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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
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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
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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
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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;
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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
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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
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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
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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:
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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
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Ads should not attack religions or
communities
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Ads should not be obscene or defamatory
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Ads should not incite violence