Introduction
In the matter of Indian Medical Association and Ors. vs. Union of India and Ors., the Hon’ble Supreme Court of India (Supreme Court/SC), under Justices Hima Kohli and Ahsanuddin Amanullah, mandated that all advertisers and advertising agencies must submit a ‘self-declaration certificate’ (SDC) on a dedicated portal set up by the Ministry of Information and Broadcasting (MIB/Ministry) before any advertisement is published or broadcast on television (TV), radio, print, or digital media, and provide proof of this submission to the respective broadcaster, printer, publisher, or platform. This directive was issued to tackle predicaments arising out of misleading advertisements.
Factual Matrix
This recent ruling is part of an ongoing legal battle initiated in 2022 when the Indian Medical Association (IMA) and its erstwhile vice president, Jayesh Lele, lodged a legal complaint accusing Patanjali Ayurved (Patanjali) of denigrating allopathic medicine through ads, especially amid the COVID crisis, while marketing 14 of their ayurvedic products as definitive cures for certain illnesses.
On November 21, 2023, the Supreme Court recorded Patanjali’s commitment to stop running misleading ads. Despite this, Patanjali continued similar ads in December 2023 and January 2024. Consequently, the Supreme Court issued notices to Patanjali for potential contempt, with hearings starting on February 27, 2024.
Unravelling the Order
The Supreme Court’s order dated May 7, 2024, contemplated the urgency for a robust enforcement mechanism that could adequately tackle and neutralize the persistent issue of misleading advertisements in accordance with the Guidelines for prevention of misleading advertisements and endorsements for misleading advertisements, 2022. In this context, the SC, in the exercise of its extraordinary jurisdiction, made a reference to rule 7 of the Cable Television Networks Rules, 1994 which provides for an ‘Advertising Code’ and laid down the following directions:
- Self-Declaration Certification:
- Advertisers/advertising agencies must upload a self-declaration on the Broadcast Sewa Portal, MIB before an advertisement is printed/aired/dispalyed.
- A dedicated portal for press/print media/internet advertisements must be created by the Ministry within four weeks from the date of the order.
- Once the portal is activated, advertisers must upload a self-declaration on such portal before issuing any ads in press, print media or the internet.
- Proof of uploading the self-declaration must be provided to the relevant broadcaster/printer/publisher/T.V. Channel/electronic media.
- No advertisements to be allowed to run without uploading the self-declaration.
- Food Safety and Standards Act, 2006 Compliance:
Ministry of Health and Family Welfare was also directed to file an affidavit and furnish data on complaints received by the Food, Safety and Standard Authority of India (FSSAI) and actions taken. The data required must include penalties for:
- Selling food not of the demanded nature, substance, or quality (Section 50)
- Sub-standard food (Section 51)
- Misbranded food (Section 52)
- Misleading advertisements (Section 53)
- Food containing extraneous matter (Section 54)
Lastly, FSSAI was authorized to take action on misleading advertisements independently, without waiting for complaints. The broadcasting networks and publications will ultimately be held responsible for non-compliance with these directions as they are mandated not to showcase any advertisements without receiving the relevant SDCs and other required documents.
Early-Stage Implementation & Resultant Ambiguity
On June 3, 2024, the MIB released an advisory concerning the new Order. This advisory introduced the new submission feature for SDCs on the Broadcast Seva Portal for TV/radio advertisements and the Press Council of India’s (PCI) portal for advertisements on print media/internet. The PCI Portal was officially launched on June 4, and the industry was allowed a two-week grace period for adapting to this change and align with the Self-Declaration mechanism by June 18, 2024. The advisory clarified that advertisements released prior to June 18, 2024 are not subject to this new requirement.
Subsequently, on June 5, 2024, the MIB released a second advisory clarifying that certain categories of advertisements such as classifieds, personal advertisements, statutory advertisements, public information notices, tenders, and public function advertisements, shall be exempt from the SDC mandate.
The effectiveness of the Broadcast Seva Portal and the PCI’s Portal in managing the influx of a flood of SDCs remains to be seen. As the advertising landscape evolves with new forms of content creation, the mechanisms for SDC verification must adapt accordingly to maintain their relevance and efficacy.
As for the SDC, the mandated self-declaration process runs the risk of ending up being but a superficial layer of oversight – while this requirement might act as a preventive measure, its actual effectiveness in curbing misleading advertisements is yet to be determined. Time will ultimately tell if these regulatory measures will effectively deter deceptive advertising practices.
Meanwhile, the MIB has issued a notable further advisory on July 3, 2024, superseding the aforesaid two advisories, stating that advertisers and advertising agencies issuing advertisements for products and services related to the food and health sectors are advised to upload an annual self-declaration certificate and make available the proof of uploading the self-declaration to the concerned media stakeholders for the record. This leaves the Supreme Court’s directive, aimed at protecting consumers from deceptive advertising, at a critical juncture. Supreme Court’s order dated May 7, 2024, directed to be treated as law under Article 141 of the Constitution of India, laid down a wider ambit for the applicability of the SDC requirement. The MIB however, vide its advisories, first limited the ambit by allowing certain exceptions and thereafter superseded its initial advisories in entirety and curtailed the SDC requirement to the food and healthcare industries that too for an annual self-declaration only.
Given the marked departure in MIB’s final advisory from the directions laid down by the Supreme Court, the focus now shifts back to the Supreme Court to see if and how it will respond to these advisories during the next scheduled hearing in the matter on August 5, 2024.