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and Ethical Aspects of Advertising- Dr. Sheetal Kapoor
is any paid form of non-personal presentation and promotion
of ideas, goods, or services by an identified sponsor . In
today's fast-paced, high-tech age businesses use advertising
to make prospects aware of their products and services and
to earn profits through increasing their sales and sales turnover.
Advertising reflects contemporary society. The making of an
ad copy, its message, its illustrations, the product advertised,
the appeal-used all these have a social flavour. Advertising
affects society and gets affected by it. It is therefore,
necessary to use this weapon with caution to avoid a corrosive
effect on social values.
Can we escape ourselves from advertisements? Consumers are
bombarded with more than 1500 commercial messages a day .
For most companies, the question is not whether to communicate
but rather what to say, how to say it, to whom and how often.
To reach target markets and build brand equity in this cluttered
market advertisers sometimes overstep social and legal norms.
This paper attempts to explore the ethical concerns in advertising.
Ethical norms deal with character, norms, morals and ideals.
They give an idea of what is fair or unfair or what is right
and wrong. The ethical principles underlie social policies
and are dictated by the society we live in. Like any other
profession, the advertising field is governed by the laws
and enactment governing the mass media. By citing live cases
the paper discusses the nature of problems faced by the consumers
through misleading advertisements and evaluates the relative
efficacies of institutional mechanisms, laws and regulations
available for easy redressal of consumers. Outdated laws,
poor enforcement of them are some of the lacunas in order
to control advertising.
When is advertising deceptive-
The Constitution of India guarantees freedom of speech. Special
restraint is needed in commercial speech including advertising.
An advertisement is called deceptive when it misleads people,
alters the reality and affects buying behaviour. According
to Federal Trade Commission (USA) deception occurs when -
1. There is misrepresentation, omission, or a practice that
is likely to mislead.
2. The consumer is acting responsibly in given circumstances
3. The practice is material and consumer injury is possible
because consumers are likely to have chosen differently if
there is no deception.
Deception exists when an advertisement is introduced into
the perceptual process of the audience in such a way that
the output of that perceptual process differs from the reality
of the situation. It includes a misrepresentation, omission
or a practice that is likely to mislead. These may include
1. Violates Consumers' Right to Information:
Use of untrue paid testimonials to convince buyers, quoting
misleading prices, disparaging a rival product in a misleading
manner are some examples of misleading. Advertisers of anti-
aging creams, complexion improving creams, weight loss programs,
anti-dandruff shampoos, and manufacturers of vitamins or dietary
supplements are usually guilty of making exaggerated product
claims. Some of the examples of advertisements in this category
" A fairness cream is advertised with the claim that its user
will get a fair complexion within a month.
" Parle G Original Gluco Biscuits puts a tall claim of being
'the World's largest selling biscuits' on its package on the
basis of the results of a survey done in the Year 2003 by
A. C. Nielsen.
" Advertisements by some financial companies such as doubling
money in a given time without base to justify claim are deceptive
" Many colleges misrepresent in their prospectus that the
institution is affiliated to a particular university and an
accredited one. In one of the cases decided in 2004 the complainant
took admission believing representations made in prospectus
that college was recognized by the government of Punjab and
was also approved by the Central Council of Indian Medicine
for the whole course of five and a half years . The complainant
deposited Rs.1,00,000/- as donation and Rs. 65,000 as admission
fees. Four years after 1996-97 no exams were being held. The
Punjab University, CCIM and Baba Farid University did not
grant any affiliation for want of requisite infrastructure.
It was held to be a case of unfair trade practice and deficiency
In the case of Bhupesh Khurana vs Vishwa Buddha Parishad a
class action suit was filed by twelve students who had joined
the BDS course offered by the Buddhist Mission Dental College
run by Vishwa Buddha Parishad. The students' complaint was
that the college, in its advertisement and prospectus inviting
applications for the course, had given the impression that
it was affiliated to Magadh University, Bodh Gaya and recognized
by the Dental Council of India and was fully equipped to give
the degree of Bachelor of Dental Science. However, after joining
the college and attending classes, the students found to their
dismay that the annual examinations were not being held because
the college was neither affiliated to Magadh University, Bodh
Gaya and nor recognized by the Dental Council of India. As
a result the students lost two precious academic years, but
also spent money on fees, hostel charges, etc. holding the
college to be deficient the National Commission directed it
to refund the admission expenses of all the twelve students
along with interest of 12 percent .
2. Violates Consumers' Right to Safety When
an advertisement for cooking oil says that using the said
oil frees the user from heart problems, then such an advertisement
is misrepresenting the facts. Companies advertise products
highlighting health cures and drugs of questionable efficacy
and health gadgets of unknown values. Tempted by an advertisement,
claiming to increase a person's height, Nadiya,a Class VIII
student having a height of 135 cms got admitted to Fathima
Hospital for surgery, on 24-7-1996, for increasing her height.
The surgery was conducted and a ring fixator was fixed on
the legs which had to be adjusted every six hours. To her
dismay Nadiya found her left leg shorter by ½ inches, and
therefore she could not walk. By September 1996, the pain
had increased and the complainant was bed-ridden till March,
1998. the Commission held the hospital and the doctors negligent
and deficient in their service and directed them to pay Rs.
5,00,000 with costs amounting to Rs. 2,000 to the complainant.
Many of the juice, sharbat, wafer manufacturing companies
do not mention the ingredients used in it. For example, Haldiram
offers many types of sharbats which are artificially
flavoured but the front side of the package has big and attractive
pictures of the fruit itself, creating misunderstanding amongst
3. Violates Consumers' Right to Choice: When
material facts which are likely to influence buying decisions
are not disclosed the advertisement becomes deceptive. In
several advertisements it is stated that 'conditions apply'
but these conditions are not stated. Not disclosing material
facts amounts to deception. For example, the recent
print ad for Videocon mentions a 1-ton split-AC available
for Rs. 15,990/, a very attractive offer. But there is a small
asterisk which mentions three things in small font. They are:
" Conditions apply
" Prices valid in Delhi and NCR under exchange only
" Actual products may differ from those displayed in the offer.
Such ads not only mislead consumers by concealing important
information from them. Advertisements for general medicines
available over the counter, never talk of the side effects
that may result from their frequent use.
4. Advertisements directed at children
Children in India constitute 18.7 per cent of the World kids
population and one-third of our country's population is under
the age of 15 years. Thus in India, children form a massive
30per cent of the total population and this segment is growing
at a rate of 4 per cent per annum. This means a huge target
market of 300 million is available to advertisers and they
are already focusing on the kid channels.
A survey by A C Nielsen UTV's research partner showed that
an average child watches TV for about three hours on week
days and 3.7 hours on weekends, the time spent on television
goes up with age, and the preferred language of viewing is
Hindi across all age groups. Apart from the programmes children
also view a lot of the advertisements.
In India the advertising expenditure per year on products
meant for children but purchased by parents, like health drinks,
is 12 to 15 per cent of the total Rs. 38,000 million. Ad expenditure
per year on products meant for children and also bought by
them such as chocolates is seven to eight per cent. The advertisers
rely on the children's pester power on their parents. The
ethical issues involved are advertisers try to exploit Young
children by advertising products that are not conducive to
" Children are naïve and gullible and are vulnerable to advertiser's
" They lack independent judgment and experience.
" The line between the children's shows and commercials is
" Is the strategy of selling to parents by convincing the
children a fair one? Most parents would think it is unfair.
It means the use of harmless superlatives. The advertisers
use them to boast of the merits of their products (best, finest,
number one, etc.). Even law permits trade puffing or exaggeration.
But subjective statements of opinion about a product's quality
are so untrue that it becomes an outright spoof and which
is not true. In 1997 MRTP Commission asked Hindustan Lever
company to stop its campaign that its Pepsodent toothpaste
was 102 per cent better than the Colgate toothpaste. Hindustan
Lever was restrained from "referring to any Colgate Toothpaste
in any manner, either directly or indirectly, by means of
any allusion or hint in its TV commercials or newspaper advertisements
or hoardings, by comparison of its New Pepsodent with any
product of Colgate in general, and Colgate Dental cream in
6. Use of sex appeals
Sex appeal is used explicitly to sell all kinds of things.
It is used to gain consumer attention. It is used where it
is not even appropriate to the product or service being advertised.
Women are shown as decorative objects or as sexually provocative
figures for advertisements for products and services where
women are not required. The corporate sector should be encouraged
to eliminate the violation of women's rights online and the
internet service providers to undertake efforts to minimize
pornography, trafficking and all forms of gender based violence.
7. Bait advertising
It means taking advantage of consumer psychology and depriving
consumers of a choice. For example, a consumer is lured into
a retail outlet by an advertisement for a low cost item and
then is sold a higher priced version or to be defective. Once
the consumer enters the store, he or she is pressured to purchase
another more expensive item. On visiting such stores, one
finds a handful of outdated products on the discount announced
and other better products as 'fresh stock'.
8. Advertising of harmful products
Advertising is not restricted to products that are good for
people. According to law in India advertisements for cigarettes,
liquor, paan masala, products that are harmful to the public
continue to find a place despite the ban imposed by the government
in private channels, cable, and through the use of surrogates.
Examples include Mc Dowell's Soda, and Wills lifestyle stores
which are seen as surrogate advertising for Mc Dowell's Whiskey
and Wills cigarettes respectively. The issues involved are:
- Whether such products should be advertised or not?
- If they should be advertised, and they will need to be advertised
so long as their production is not banned, in what media should
they be advertised?
- Further, if they are permitted to be advertised, whether
the warning signs on the packages of these products really
serve any purpose?
The role of in-film advertising and surrogate advertising
in promoting the sale of these products also needs to be examined
more closely. Advertisers pay film producers to place their
products in certain film scenes by integrating the products
in the film scripts and screen plays.
Legal Aspects of Advertising
Unfortunately despite several laws meant to protect consumers
against such unfair trade practices, false and misleading
advertisements continue to exploit the consumer. A number
of institutions are involved in regulating advertising. These
1. Self regulation by the industry
2. Regulation by the Government
In India the government assumes the role of regulating the
business activity by bringing a number of laws, regulations
and codes. The following laws have been enacted by the government,
which contain provisions that regulate advertising in India.
These laws can be divided into two categories.
I. Laws having horizontal application on advertising
II. The Consumer Protection Act, 1986.
III. The Emblems and Names (Prevention of Improper Use) Act,
IV. Trade and Merchandise Marks Act, 1958.
V. Cable Television Networks (Regulation) Act, 1995
VI. Indecent Representation of Women (Prohibition) Act, 1986.
VII. Monopolies and Restrictive Trade Practices Act, 1969.
VIII. Motor Vehicles Act, 1988
IX. Laws having vertical application on advertising
X. Section 58 Companies Act, 1956
XI. Drugs and Cosmetics Act, 1940.
XII. Drugs and Magic Remedies (Objectionable Advertisements)
XIII. Pre-natal Diagnostic Techniques (Regulation and Prevention
of Misuse) Act, 1994.
XIV. Prevention of Food Adulteration Act, 1954/ Food Safety
and Standards Act, 2005.
XV. Prize Chits and Money Circulation Schemes (Banning) Act,
XVI. Prize Competition Act, 1955
XVII. The Infant Milk Substitute, Feeding Bottles and Infant
Foods (Regulation of Production, Supply and Distribution)
Act, 1992 and Amendment Act, 2002.
XVIII. Transplantation of Human Organs Act, 1994
XIX. The Young Persons (Harmful Publications) Act, 1956
XX. The following Regulatory authorities have power to regulate
advertising in their respective domain.
o Insurance Regulatory Development Authority
o Telecom Regulatory Authority of India
o Securities and Exchange Board of India
o Reserve Bank of India
o Medical Council of India
Some of the important features of various laws concerning
1. The Drugs and Magic Remedies (Objectionable Advertisements)
Act, 1954 prohibits advertisements for products and
services claiming to cure certain medical conditions. As per
the law, no advertisement should promise magical cure for
any ailments or disease and the rules specify the diseases
and ailments that cannot be advertised promising cure or remedies.
However, the enforcement of the Act by the state authorities
is poor because one finds a number of advertisements in the
print media. The Act also does not cover advertisements that
appear in various media pertaining to health gadgets of unproven
efficacy, like tummy trimmers, bands for blood pressure control,
and gadgets to increase height. This Act does not provide
for issuing corrective advertisements.
2. The Monopolies and Restrictive Trade Practice act,
1969: It had been the most effective Act in the eighties
and nineties to regulate undesirable advertising. In the year
1984, the government brought, through an amendment, "unfair
trade practices" under the purview of the MRTP Commission
and the Office of the Director General (Investigation and
Registration). However, this Act is being replaced by the
Competition Act, 2002 but the cases pending under the MRTP
Commission are still being heard. Moreover, a Competition
Commission has been set up under the Competition Act to deal
with monopolies and restrictive trade practices. The complaints
pertaining to unfair trade practices are still being handled
by the MRTP Commission or the consumer courts. The MRTP Act
has been very effective in hauling a number of advertisers
to stop advertisements which are prejudicial to consumer interest
through its 'cease and desist orders'.
3. The Consumer Protection Act, 1986: The
Consumer Protection Act, 1986, applies to advertisements for
all products in the market place. A consumer may file a complaint
related to false and misleading advertisements, which are
included under the definition of unfair trade practice (Section
2 (r) The law mentions seven classes of unfair trade practices
in six subsections of this section of the law. The consumer
courts can however, take the following actions under section
14 of the Consumer Protection Act, 1986:
" Issue interim orders stopping such advertisements pending
" To pass cease and desist orders.
" Award compensation for loss or suffering, punitive damages
and cost of litigation to the affected party.
" Direct the advertiser to issue corrective advertisement
4. Cable Television Networks (Regulation) Act, 1995:
This law lays down the procedure for registration of a cable
television network and also regulates the programmes and advertisements
transmitted on cable network in India. The registering authority
is the Head Post Master of a Head Post Office of the area
within whose territorial jurisdiction the office of the cable
operator is situated.
5. Drugs and Cosmetics Act, 1940
This law regulates the production, manufacture and sale of
all drugs and cosmetics in the country. The Act prescribes
a fine of up to Rs. 500 for any person using any report or
extract of report of a test or analysis made by the Central
Drugs Laboratory or a government analyst for advertising of
a drug or cosmetic.
6. Section 292 and Section 293 of the Indian Penal
Code, 1860, prohibits the dissemination of any obscene
matter. The Indian Post Office Act, 1898, imposes a similar
prohibition on the transmission of obscene matter through
the post. The Customs Act, 1962, allows the detention and
seizure of any obscene matter sought to be imported into the
7. The Children's Act, 1960, prohibits the
disclosure of names and address and other particulars of any
child involved in any proceedings.
8. The Indecent Representation of Women (Prohibition)
Act, 1986 forbids the depiction of women in an indecent
or derogatory manner in the mass media. No person shall publish,
or cause to be published, or arrange or take part in the publication
or exhibition of, any advertisement which contains indecent
representation of women in any form.
9. The Emblems and Names (Prevention of Improper Use)
Act, 1950, prohibits the use by any private party
of certain names, emblems, etc.
10. Motor Vehicles Act, 1988: This law affects
outdoor advertisements, like bill boards, posters, neon signs,
etc. The Act, grants powers to remove such advertisements
which may distract drivers and have the potential of causing
A number of regulatory agencies have also formulated advertising
codes to ensure that advertisers do not mislead consumers.
Self regulation by the advertising industry
With the increasing criticism of advertising, advertisers
have devised self regulation to ensure true and accurate messages.
Moreover, with the advent of new communication and information
technologies, the national policy makers have also become
less willing and less able to intervene. Since print and audio-visual
media exercise the essential freedom of speech and they are
financed by advertising revenues, media has always resisted
curbs thereby constraining the capacity of national governments
to influence media. Further, the business also realizes that
the long term profitability of the organisation depends upon
Agencies involved in self regulation
A number of agencies are involved. These can be classified
into the following:
" Advertising trade associations
o Advertising Standards Council of India (ASCI)
o Advertising Association of India (AAAI)
o Press Council of India
o Prasar Bharti
" Individual media and media groups
o Code for commercial advertising on Doordarshan
o All India Radio Code for commercial advertising
ASCI's code of Self Regulation says: "Advertisements should
be truthful and fair to consumers and competitors within the
bounds of generally accepted standards of public decency and
propriety. Not used indiscriminately for the promotion of
products, hazardous or harmful to society or to individuals
particularly minors, to a degree unacceptable to society at
Unfortunately despite several laws meant to protect consumers
against such unfair trade practices, false and misleading
advertisements continue to exploit the consumer. Outdated
laws, poor enforcement of them are some of the lacunas in
order to control advertising. The need of the hour is better
laws in keeping with the times, better enforcement, corrective
advertisements, better self-regulation by industry independent
regulator to regulate health and children -related advertisements.
Need for Consumer Action
1. As empowered consumers we should not be gullible to risky
advertisements. Children are easily swayed by the false claim
of the advertisers and fall in the trap of the greedy advertisers.
Therefore one should not blindly follow the advertisements
and use logic and reasoning before purchasing anything.
2. MRTP Act had the powers of taking suo motu action whereas
the Consumer Protection Act or ASCI, does not have such powers.
Only if a consumer or industry complaints to the Consumer
Courts or to ASCI then the action can be taken. By the time
the action is taken by these bodies to either withdraw or
modify the offending advertisement the advertisement has already
conveyed the false message. Therefore, it is time to make
some amendment in the Act and to give powers to the consumer
courts for suo motu action so that they can take up cases
of false advertisements on their own.
3. Several consumers and consumer organizations such as, Consumer
Voice are fighting against the misleading advertisements.
Magazines such as, Consumer Voice, Insight publish advertisements
running a column on misleading advertisements. They also request
consumers to share their opinions regarding various advertisements
so that any advertisement which is deceptive and false can
be brought to the notice of the regulators.
4. Further many colleges and schools have started Consumer
Clubs where discussions are being carried on unethical advertisements.
Kamala Nehru College is the first college in Delhi University
for taking this initiative. If consumers feel that an advertisement
is not true they can write to Advertising Standard Council
of India also.
5. Regarding misleading advertisements related to banks, consumers
can complaint to the Reserve Bank of India (RBI). Grievances
regarding false advertisements by telecom companies can be
made to Telecom Regulatory Authority of India and insurance
related matters to IRDA.
The brighter side of all this is that as consumer awareness
grows, marketers and advertisers are fast learning that in
these days when the consumer is king, nothing but the best
would do. As JWT agency quotes, "Advertising is a non-moral
force, like electricity, which not only illuminates but electrocutes.
Its worth to civilization depends upon how it is used."
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