Preeti Balwani evaluates the country’s labyrinthine advertising laws and their impact on the industry

Advertisements are at the heart of commercial speech, which the Supreme Court has held is a part of freedom of speech and expression, a fundamental right under article 19 (1) (a) of the Constitution of India.

Regulating advertisements is a hot potato, though. While there are several legislative provisions, there is no uniform code or law that deals with all aspects of advertising. The industry has so far resisted attempts to create a uniform advertisement code or a single regulator.

India, like several other jurisdictions, prefers self-regulation for advertisements. The Advertising Standards Council of India (ASCI) publishes and updates fair advertising guidelines referred to as ASCI codes, which need to be adhered to by member organizations to protect the interests of the consumer.

While the ASCI remains a self-regulatory body, the Reserve Bank of India (RBI), the Securities and Exchange Commission of India (SEBI) and the Insurance Regulatory and Development Authority of India (IRDAI) also regulate advertisements in their respective sectors. State-owned broadcasters Doordarshan and All India Radio (AIR) adhere to the Doordarshan and AIR Advertisement Code which is under the control of Prasar Bharati (government owned public broadcasting agency) formulated under the Prasar Bharati Act. The Department of Consumer Affairs also maintains an online portal where consumers can post their grievances against misleading advertisements.

SETTING LIMITS

The courts have over the years weighed in on what is acceptable for advertisements. In the landmark case of Tata Press Ltd v Mahanagar Telephone Nigam Ltd (1995) (MTNL), the Supreme Court considered if Tata Press was permitted to publish telephone directories and sell advertisements in its Yellow Pages. The court, while equating advertisements or commercial speech to the fundamental right of freedom of speech as enshrined in the constitution, held that the protection has been accorded to corporate entities as well. In another landmark case, Bennett Coleman & Co & Ors v Union of India (1972), which challenged the restrictions on the import of newsprint under Import Control Order, 1955, the Supreme Court held that the fundamental rights of shareholders as citizens are not lost when they associate to form a company.

Courts have maintained that a little hyperbole is acceptable for advertisements. They are not testamentary provisions in a will or a clause in some agreement with every word being carefully considered and the words as a whole being compared, according to Delhi High Court in Havells India v Amritanshu Khaitan (2015), where the court considered whether or not an advertisement that compares one product with a similar rival product must necessarily compare all its features in order for it to be an “honest” advertisement.

In the case of comparative advertising, courts have said that a certain amount of disparagement is implicit in advertisements, as held in a series of judgments including De Beers Abrasive v International General Electric (1975), Dabur v Colortek (2010), GSK v Heinz India (2010), Colgate Palmolive v Hindustan Unilever (2014).

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Preeti Balwani is the general counsel for Kraft Heinz in India and an executive director on its board of directors. The views expressed in this article are personal and do not reflect the views of the Kraft Heinz Company or any of its affiliates.