Confusion prevails after Supreme Court instructs advertisers, agencies to provide self-declaration certificate

India’s advertising sector is in a tizzy and the heat is not to blame. Instead, it is on account of the Supreme Court’s directive instructing all advertisers and advertising agencies to furnish a 'self-declaration certificate' (SDC) before airing or publishing any advertisement.

While this move is aimed at safeguarding consumer interests, many an industry stakeholder is nonplussed about its viability and implementation. Anupam Mittal, founder and CEO of People Group and Shaadi.com aired his worry on X (formerly Twitter) wondering how can advertisers who create numerous creatives every month comply with such a directive.

This is completely unviable. https://t.co/0iC65sbNew@MIB_India How will digital advertisers who create 100s of creatives a month comply with a directive like that? This will hurt our digital competitiveness globally by increasing costs and slowing us down ��

— Anupam Mittal (@AnupamMittal) June 4, 2024

His concern is echoed by several others in the sector who worry that this decree would slow down the turnaround time of publishing ads and make it an onerous task. With most brands increasingly pushing their ads on digital platforms, agencies are testing numerous creatives simultaneously, especially while trying to ride the wave of moment marketing. Getting a SDC for each ad would burden the team unnecessarily, and make them lose the critical time-sensitive edge, which has become the cornerstone of their trade.

Why the government stepped in

While advertisers and agencies are known to take creative liberties to show their client’s products or services in the best light, some brands have taken things too far, forcing the judiciary or government agencies to rein them in.

For its latest annual complaints report,  the Advertising Standards Council of India (ASCI) examined 10,093 complaints and investigated 8,299 advertisements. The majority of violation were on account of misleading claims, which stood at 81%, which was followed by ads that promoted harmful situations or products, which was pegged at 34% (the same ad can be processed for multiple objections).

This July, the Central Consumer Protection Authority fined Maluka IAS Coaching Institute Rs 3 lakh for making "misleading claims guaranteeing success" in the competitive UPSC Civil Service exams.  Last year, the National Commission for Protection of Child Rights asked Bournvita to remove ads that promoted it as a health drink, after noting that it contained a high percentage of sugar and other additives that could impact a child's health.

However, Patanjali proved to be the proverbial straw that broke the camel’s back. It began with the Indian Medical Association (IMA) accusing the company of allegedly issuing misleading advertisements that boasted that its products could cure chronic illnesses like diabetes, blood pressure, and even COVID-19, and also for passing critical remarks against allopathy.

The Baba Ramdev-led FMCG major had launched a product called Coronil in February 2021, claiming that it was the "first evidence-based medicine for COVID-19", which the World Health Organisation (WHO) had reportedly certified and recognised. When WHO denied issuing such a certification, IMA demanded an explanation from the company, following which Ramdev declared in a video that allopathy was a killer of lakhs of people.

Patanjali's newspaper ad that prompted the Indian Medical Association to file a case against the FMCG company.

Stepping up its rhetoric, in 2022 the company released ads in Indian newspapers that said, "Misconceptions Spread By Allopathy: Save Yourself And The Country From The Misconceptions Spread By Pharma And Medical Industry." IMA retaliated by filing a case against the firm.

On May 7, a bench of Justices Hima Kohli and Ahsanuddin Amanullah questioned why these misleading advertisements continued to play across media channels. It noted that “advertisers or the advertising agencies or endorsers are equally responsible for issuing false and misleading advertisements.” They added that celebrities and social media influencers are equally liable for misleading advertisements, if they endorse any deceptive product or service. The court then issued the order for SDCs.

Responding to the Supreme Court’s directive, the Ministry of Information and Broadcasting (MIB) introduced a new feature on its Broadcast Seva Portal for TV and radio advertisements, as well as on the Press Council of India’s portal for print, digital, and online advertisements. This portal will allow an authorised representative of the advertiser or advertising agency to submit requisite details and then obtain the SDC. The document should clearly state that the advertisement does not contain misleading claims and that it complies with all regulatory guidelines.

The process, the conundrum

Prominent advertising agencies usually have a process in place to ensure that they are not party in the issuance of misleading ads. They often partner with the client’s team to ensure all key campaigns are released only after a thorough check that dots the literal i’s and the legal t’s.

Neha Singh, VP at Enormous Mumbai explained that some of their clients have a compliant hub system and protocol at a national and global level where the agency’s team is expected to upload the campaign creatives before its release. The portal clears the ad after checking ASCI guidelines and compliant codes of an operating category.

Neha Singh, vice president, Enormous Mumbai

Admatazz, too, has an internal guide to avoid the creation and programming of misleading ads. For complex ads where a degree of uncertainty creeps in, it leans on the guidance of its legal firm that specialises in advertising and IP law.

While the common sentiment is that the SC verdict has the right intent—to protect customer interest—it does not fix the issue in the right fashion. Amit Wadhwa, chief executive officer at dentsu Creative India pointed out that ad agencies are communication experts, not engineers or product experts. They might lack the domain expertise to adjudge whether a claim made about a product or service is actually correct and on-point.

“There are limitations to what we can know and understand (about the advertised product). Within these limited means and our understanding, we conduct due diligence, which we will increase as we move along,” he stated. “At the same time, there could be so much that we would not know and that is not completely under our control.”

One rule to bind them all

There are other practical difficulties involved implementing the latest directive. For starters, the SC order can be better implemented for traditional media like TV, radio or newspapers rather than digital platforms.

Yash Chandiramani, founder and chief strategist of Admatazz explained that while creatives for print and TV volumes are lower, the volume of creatives in the digital space is extremely high. Hence, obtaining SDCs could become a cumbersome process.

“While we test everything, we are yet to familarise ourselves with the degree of self-regulation paperwork required. We will definitely adapt to the new regulations. However, in the short term, this will be a task for independent setups like ours,” he opined.

Singh also stated that agencies are increasingly finding solutions to maximise efficiencies and outputs. For instance, they are progressively adopting AI to reduce human effort to meet tight deadlines.“This ask for SDCs will make the process cumbersome and build further pressure on the already pressurising turnaround time,” she rued.

Too short a notice

Making the SDC mandatory for all new advertisements scheduled for issuance, telecast, airing, or publication on or after June 18, 2024, while exempting ongoing advertisements, MIB has allotted a two-week buffer period for stakeholders to familiarise themselves with the self-certification process. However, most people in the industry feel this is too short a timeframe to understand the nuances of the order, its implementation and penalties involved.

Yash Chandiramani, founder and chief strategist of Admatazz

“It is compliance after all and we wouldn't want to go wrong with the process at any step,” Chandiramani emphasised. Considering that this is a drastic change, stakeholders would require a few months to understand the system would ensure that it is implemented to the letter.

Agencies can also follow the SDC process only once they are fully clear on the amendment rules in terms of campaign size and format. “Are we expected to follow SDC for TV campaigns or integrated campaigns? Or campaigns that are released at a mass scale with heavy media budgets? The idea of following this for social media campaigns and business-as-usual ads is unimaginably strenuous,” Singh wondered.

The overall opinion is that the regulation has been passed keeping societal welfare in the crosshairs. However, what is needed is an equally fair and efficient implementation process for advertising agencies and their teams.

Ad agencies are leaning on ASCI and Indian Society of Advertisers to get clarity on the prevailing doubts. Campaign India reached out to ASCI, but the spokesperson refrained from commenting, as the body is trying to get a better understanding of the issue too.

While awaiting these details, the agencies have just one clear ask—don’t shoot the messenger. Is the government listening?