Prabhakar Mundkur
Guest Article

ASCI’s role complementary to new law

People who accuse the ASCI of being a toothless organisation, seem to be missing the point entirely.

Discipline of any kind is self-imposed. The Japanese clean up Olympic sports stadiums after everyone has left not because of legislation. And, Western societies wait patiently in queues without breaking them because of courtesy, rather than the law. Car drivers wait at crossroads and follow a strict ‘first-in-first out’ exit, as much because it is a driving courtesy as because there is legislation, and so it is with self-regulation of any kind.

Self-regulation in advertising is important because it is in the best interests of the profession and of the marketers and their brands, and the consumers. However, undisciplined societies may need more legislation and take immense pleasure in breaking the law as well. A good example is the Mumbai motorcyclist who rides past the red traffic light with gay abandon in spite of legislation.

Prabhakar Mundkur
Prabhakar Mundkur

People who accuse the ASCI of being a toothless organisation, seem to be missing the point entirely. Legislation strengthens self-regulation, not weakens it. As the ASCI says in its introduction to its Code ‘The Code is not in competition with the Law. The rules and the machinery through which they are enforced, are designed to implement legal controls, not to usurp or replace them’. Those who are unable to understand this fundamental point have a poor understanding of advertising self-regulation.

Self-Regulation in the UK

In the UK, which is a good model for advertising law, advertising is governed by a mixture of legislation, common law, regulatory control and self-regulation. Law is necessary to act against companies misleading consumers through advertising. This is because self-regulatory bodies are non-statutory organisations. As a result, they cannot interpret or re-enforce legislation.

In the UK, there is the CAP non-broadcast code, that covers non-broadcast advertising like print and online, sales promotion and direct marketing. The code specifies standards of accuracy and honesty for marketers. Under its overall ambit comes advertising to children, and even political advertising. Then there is the CAP Broadcast Code which specifies taste and decency in advertising. All these are available on the Ofcom website. But the rules are enforced by the ASA (The Advertising Standards Authority). Complaints have to arrive within 3 months of the appearance of a misleading advertisement for the ASA to take action.

How it works in the UK is that the Ofcom while ultimately responsible for the enforcement of standards in advertising, they have contracted out the regulation of advertising content to two bodies.

  • The Broadcast Committee of Advertising Practice

  • The Advertising Standards Authority

In other words, Ofcom plays the role of back-stop regulator. Their agreement states:

‘Under the current terms agreed between the Parties, Ofcom has continued to act as the back-stop regulator. As such, we: conduct sanctions proceedings against broadcasters who fail to comply with ASA(B)’s rulings; supervise our co-regulators’ performance against a variety of key performance targets; and approve any proposed changes to regulatory requirements, retaining the right to intervene (in exceptional circumstances), to set such requirements’.

The current agreement between Ofcom and ASA is until 2024.

The Situation in India

When the Consumer Protection Act draft was issued two years ago, there was some speculation whether there were going to be two bodies now looking after misleading advertising. Because all misleading advertising in the country was overseen by the ASCI. Even government departments like AYUSH and FSSAI passed on complaints received by them to the ASCI for processing. Even the Ministry of Consumer Affairs passed on complaints received by them on to the ASCI for processing. This was a good sign and in line with the global best practice.

The new law put out by the government has been quite modern in its general outlook by providing for e-complaints with a video conferencing option for consumer redressal. It will definitely strengthen consumer rights in India.

However, most complaints are received as e-complaints from the ASCI data and offline contributes only 15 per cent of complaints.

GAMA stands for Grievance against Misleading Advertisement falling under the Department of Consumer Affairs
GAMA stands for Grievance against Misleading Advertisement falling under the Department of Consumer Affairs

The Department of Consumer Affairs recently issued its own set of advertising guidelines, so we now have two guidelines to follow. One issued by the MoCA and the other by the ASCI. While there is a natural overlap between the two guidelines, the ASCI guidelines are naturally more comprehensive and tested over a long period of 35 years. There is a need to consolidate the two guidelines. Perhaps, the onus of that consolidation lies with the ASCI.

The ASCI’s Consumer Complaints Council has handpicked experts in every field from marketing, advertising, science, technology, engineering, research and more.

The true spirit of liberalisation means that government must do less and less, but keep control by contracting out to the private sector. Self-regulation is perhaps the best form of regulation in any economy. Legislation when combined with self-regulation can become a powerful force.

What the world has learnt is that what works best for advertising regulation is when the regulator works in conjunction with self-regulatory bodies like the ASCI. We can choose to accept or reject the global experience on this subject.

(The author is a former adman and present-day brand strategy consultant.)