Supreme Court crackdown on misleading ads puts spotlight on complications of regulating ads

Experts believe that if there were an equivalent of a censor board within organisations for all brand communication, the problem would be solved.

Only five days remain until the Ministry of Information and Broadcasting (MIB) officially implements the Self-Declaration Certificate mandate on June 18, 2024. It all started when Patanjali's misleading advertisement case came to light. The company had been issuing advertisements that denigrated the allopathy system of medicine.

After the Supreme Court reprimanded the organisation and its owners, it expanded the scope to examine all advertisements that might mislead consumers, hence introducing the Self-Declaration Certificate.

Ad industry professionals are already complaining that implementing the mandate will become financially difficult, resource-intensive, and time-consuming.

Regulating advertising in India has become increasingly complicated due to the rapid expansion of ad volume. This surge is directly linked to a significant increase in advertising expenditures, as brands invest heavily to capture consumer attention in a crowded market.

The complexity arises from the need to monitor a vast array of advertisements across various media platforms, ensuring compliance with regulations while keeping pace with technological advancements and creative ad formats.

Amidst several such conflicts, advertising and brand experts are sceptical about whether to support this move or not. Here is what they have to say.

Shweta Purandare, founder, Tap-a-Gain.com, and advertising compliance consultant

The introduction of the Self-Declaration Certificate is vital for combating misleading advertisements. This is not a cumbersome pre-approval process, but only a self-certificate in the spirit of self-regulation. Five positive outcomes that would benefit end consumers are:

1) Advertisers would be cautious in crafting advertising claims

2) Advertisers, publishers, and broadcasters would be accountable for advertisements they create and publish

3) Consumers would see more truthful advertising

4) It will curtail fly-by-night advertisers and unscrupulous digital platforms, and weed out illegal advertisements

5) It would provide strong due diligence support to celebrities and influencers

Shivaji Dasgupta, founder and managing director, INEXGRO Brand Advisory

The challenge with many regulations is their voluntary nature, making them subjective by definition and susceptible to inadequacies and abuse. The moment things are set up by law, adherence will increase and become standard fare. Regulatory agencies are finding it difficult because they work on a reactive basis.

If there were the equivalent of a censor board for any brand communication within organisations, the problem would be solved. Just like the DD script approval process of the old days, however draconian it may have seemed. By framing a common code of conduct and having a regulatory approval board with representatives from both sides to ensure compliance.

Rohit Agarwal, founder and director, Alpha Zegus

The main obstacle here is that we live in a country that is extremely diverse in terms of the languages in which content is made. While ad regulations are implemented or put forth, they are not very easy for people from different demographics across the country to understand.

What resonates with people is the trust they have in a brand. If a brand is paying an influencer to be its advocate, essentially having the influencer convince their audience to support or buy a product, the trust the audience has in the influencer directly or indirectly translates into trust in the brand. Therefore, if the creator is not able to honestly address the pros and cons of a given brand or product, people will lose trust in the creator, which in turn will cause them to lose trust in the brand.

Brands need to be more open-minded about being creative and adapting to different types of creators. Agencies will need to come up with unique ideas and concepts that blend well with a brand's image. All regulations should be adhered to, and engagement should remain authentic.

Sai Ganesh, brand consultant

The trigger for this seems to be the recent Patanjali court case where the Supreme Court mentioned that its ads were misleading. Historically, India has not been this complicated and this particular step is something that I think is not great.

This is going to be extremely operation intensive for media agencies and clients, and now, calls are going to be taken on whether they need to run certain ads or not only because of certain operational issues.

Consumers’ trust in brands is very important. The environment is also changing rapidly and people are sensitive. We have the Advertising Standards Council Of India (ASCI), and it is the organisation’s job to ensure clarity on brands or categories where things might be borderline misleading, irregular, or illegal. But in my opinion, penalising everyone for the actions of a few is excessive.

Mansi Gupta, chief business officer, OpraahFx and YouTuber/influencer

The proliferation of digital platforms, social media, and traditional media has created a complex environment for monitoring and enforcing advertising standards. In a competitive landscape, brands constantly strive to stand out, sometimes resorting to unethical practices. Effective marketing regulations are surely essential to protect consumers from deceitful claims, ensuring they make informed decisions.

Trust is the cornerstone of a brand's relationship with its audience. When consumers trust a brand, they are more likely to remain loyal, engage positively, and advocate for it, even in a crowded and competitive market. This loyalty and advocacy are invaluable assets, contributing to the brand's long-term success and resilience.

We are waiting for further clarification on the guidelines before commenting on our ability to comply fully.