Advertisers to Submit Self-Declarations for their Advertisements

On May 7, 2024, the Hon’ble Supreme Court passed an order in the case of Indian Medical Association & Anr. v. Union of India & Ors.1 requiring submission of self-declarations by advertisers/advertising agencies before the publication or broadcast of any advertisement (“Order“), for consumers to be able to make informed decisions about the quality of products that are offered to them for sale.

While the writ petition was filed before the Supreme Court against the misleading advertisements posted by Patanjali, the scope of the matter was subsequently broadened by the Supreme Court to include similar companies making misleading advertisements relating to their products.

Notably, the order directs that “No advertisements shall be permitted to be run on the relevant channels and/or in the print media/internet without uploading the self-declaration as directed above.” The aforementioned self-declaration is required to be in accordance with Rule 7 of the Cable Television Networks Rules, 1994, which (other than laying down specific forms of advertisements which are disallowed) also require that advertisements ought to be in compliance with the applicable law of the country and “not offend the morality, decency and religious susceptibilities of the subscribers“, and is intended to be a measure to ensure accountability for advertisers.

Subsequently, on June 3, 2024, the Ministry of Information and Broadcasting (“MIB“) issued circular no. 13011/8/2024-BC.II directing all broadcasters/publishers to strictly adhere to the aforementioned requirement and submit the self-declaration certificate through the Broadcast Seva Portal of the MIB (for TV and radio advertisements) and through the Press Council of India Portal (for print and digital media advertisements). It also specified that all broadcasters/publishers ought to refrain from broadcasting/publishing any advertisement until a valid-self declaration certificate is submitted by the advertiser.

On June 3, 2023, the MIB also issued a press release (“Press Release“) which stated that the portal would be activated by June 4, 2024 and the self-declaration certificate would need to be obtained by all advertisers and advertising agencies for all new advertisements to be issued/telecast/aired/published on or after June 18, 2024. It also clarified that ongoing advertisements (on the date of the Press Release) do not need to be self-certified and restated the Supreme Court’s crucial directions. Further, the MIB also issued the Guidelines for Using Broadcast Seva Portal/Press Council of India Portal by Advertisers/Advertising Agencies for Uploading Self-Declaration Certificate (“Guidelines“), which specified that it applies to all advertisements published on/after June 18, 2024, across TV channels, print or digital media. However, on July 3, 2024, the MIB issued an advisory (“Advisory”) which mentions that  the scope of the self-declaratory requirement would be limited to advertisements related to the food and health industry. The Advisory clarifies that the advertisers /advertising industry would only be required to file an annual self-declaration certificate and would have to make available the proof of uploading such self-declaration to the media stakeholders (like TV channels, newspapers, entitles involved in publishing of advertisements on the internet, etc.). This advisory currently stands in supersession of previous advisories issued in this regard.

The Guidelines provide for certain requirements which need to be fulfilled while submitting the self-declaration form. In order to ensure accountability and a point of contact in this relation, the Guidelines require an authorized representative of the advertiser/advertising agency to submit the self-declaration certificate on behalf of the advertiser/advertising agency along with their mobile number and email ID. The Guidelines also stipulate that certain details of the advertisement ought to be inserted into the self-declaration certificate including the product/service being offered, script, brief description of the advertisement, etc. and stipulates a list of documents which ought to be obtained before submission of the self-declaration certificate. The Guidelines also clarify that the self-declaration would not apply to statutory advertisements and classifieds unrelated to goods and services. The Guidelines also contain a sample format of the letter of authorization to authorize a representative for submission of self-declaration certificate by advertisers/advertising agencies.

The hasty implementation of this mandate led to widespread concerns across the industry and led to the Internet and Mobile Association of India (IAMAI), the Indian Newspaper Association (INS), and the Indian Society of Advertisers (ISA) writing to the MIB with their concerns. The ISA requested that the implementation of the aforementioned directives be postponed until its concerns are heard by the Supreme Court2.

In light of the fragmented laws that apply to the advertising industry, the Supreme Court’s intention to ensure accountability is crucial to consumers and stakeholders alike. By limiting the ambit of the self – declaration requirement, the MIB seems to have taken a decisive step forward as the Order was only addressing the issues related to consumer health (which was in furtherance of the fundamental right to health). Therefore, the Advisory has aptly segregated the advertisements unrelated to the food and health industry.

Writ Petition (Civil) No. 645 of 2022.

2 https://www.business-standard.com/industry/news/iamai-ins-isa-write-to-mib-over-selfdeclaration-advertisement-process-124061600518_1.html