WHAT HAS HAPPENED? |
The Supreme Court has invoked its inherent power vested under the Constitution of India for the enforcement of fundamental right to health pursuant to its order dated 07 May 2024 in the case of Indian Medical Association & Anr. vs. Union of India & Ors (“07 May SC Order”). 07 May SC Order mandates a self-declaration to be submitted by the advertiser, advertising agencies and endorsers (such as public figures, influencers, celebrities) before any advertisement is printed, aired or displayed.
The Ministry of Information & Broadcasting (MIB) has on 05 June 2024 issued direction for submission of ‘Self-Declaration Certificate’ by advertisers / advertising agencies for any advertisements that are published in print, electronic or digital media. The direction and the 07 May SC Order is available here.
PROCESS FOR SELF DECLARATION CERTIFICATE |
A Self-Declaration Certificate is a mandatory document for advertisers and advertising agencies to submit to broadcasters or publishers before publishing or broadcasting any advertisement with effect on and from 18 June 2024. The certificate needs to be signed by an authorised representative of the advertiser or advertising agency and submitted on the relevant portals mentioned below:
The process briefly explained:
Creating a user account on the relevant portal.
For creating a user account, the following key details / documents are required: authorised person name, designation, email address, mobile number, company/organisation name with address and a letter of authorisation on the company/organisation’s letterhead. Sample letter format available here.
Details of the advertisement needs to be disclosed, such as the advertisement title, brief description of the advertisement (highlighting any specific feature or claim in the advertisement), (full) script of the advertisement, upload the URL of the actual video/audio file of the advertisement, submit Central Board of Film Certification, if applicable and proposed date of broadcast/publishing of the advertisement.
If incomplete or inaccurate information is submitted, then it may lead to rejection or delay in processing the Self-Declaration Certificate. If the submission is successful, then an acknowledgement receipt is generated.
SCOPE & COVERAGE |
New Advertisements: This requirement of Self-Declaration Certificate is applicable on all new advertisements that will be printed, aired or displayed on or after 18 June 2024 (whether published in press, print media, television, broadcaster, electronic media or internet).
Applicable to:
Advertisers – includes manufacturers, resellers, distributors, service providers, etc.
Advertising agency
Endorsers – includes public figures, influencers, celebrities promoting the product or services.
The terms “advertiser” and “advertising agency” are defined under the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 as below:
Exclusions: Classifieds (other than those related to consumer goods and services), personal advertisements, statutory advertisements, public information notices, tenders, and advertisements related to public functions.
WAY FORWARD |
Declaration to be made: All the advertisers, advertising agencies and endorsers (such as public figures, influencers, celebrities) need to certify that the advertisement (a) contains no misleading claims, and (b) adheres to all pertinent regulatory guidelines, including those outlined in Rule 7 of the Cable Television Networks Rules, 1994, the Norms of Journalistic Conduct of the Press Council of India (related to advertisements issued by the Press Council of India) and 07 May SC Order. Further, the advertiser must furnish evidence of having uploaded the Self – Declaration Certificate to the appropriate broadcaster, printer, publisher, or electronic media platform for their records.
Advantage: The applicability of Self-Declaration Certificate by advertisers, advertising agency and endorsers, will promote ethical advertising practices and protects consumer interests and are equally responsible for issuing any false and misleading advertisements. Compliance with this mechanism will enhance the credibility and integrity of advertisements across all media platforms.
Any guardrails? Considering the advertising agency / endorser who is entrusted to design, produce and/or publish advertisement or endorse (a product or service) is mandated to furnish Self- Declaration Certificate, question arises whether they should:
ascertain if the advertisement or endorsement is false or misleading, and/or
take indemnity from the advertiser (such as manufacturers, resellers, distributors or service providers) before submitting the Self-Declaration Certificate.
Is this covered? Separately, while testimonials or indirect advertisements such as product placements in movies, reels, TV shows etc. ought to be covered by the 07 May SC Order, however on whom will the liability to submit the Self-Declaration Certificate apply is unclear. We expect more clarification and developments on this front.
Should you have any queries or comments on this alert please email us at productcompliance@chandhiok.com
You may also contact the authors below.
© 2024 Chandhiok & Mahajan, Advocates and Solicitors
This alert is for information purposes only and does not constitute legal advice.
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