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The Ministry of Information & Broadcasting Issues Another Advisory to Limit the Mandate on Self-Declaration of Advertisements to Food and Health Sectors

The Ministry of Information & Broadcasting Issues Another Advisory to Limit the Mandate on Self-Declaration of Advertisements to Food and Health Sectors

On 3rd July 2024, the Ministry of Information & Broadcasting (“MIB”) issued its third advisory on the mandate of the Supreme Court on Self-Declaration of Advertisements (“New Advisory”). The New Advisory supersedes MIB’s previous advisories on Self-Declaration Certificates (“SDC”) for advertisements which were issued on 3rd June 2024 and 5th June 2024.

As reported in our blog in June 2024, the Hon’ble Supreme Court, in the case of Indian Medical Association & Anr. v. Union of India [WP(C) No. 645/2022] had through its order dated 7th May 2024 mandated submission of a self-declaration by an advertiser/advertising agency on the dedicated portals of MIB before the printing/airing/display of any advertisement. The order also required all advertisers to furnish proof of uploading the self-declaration to the concerned broadcaster/printer/publisher/T.V. Channel/electronic media.

Thereafter, the MIB issued two circulars/advisories, on 3rd June 2024 (“First Advisory”) and 5th June 2024 (“Second Advisory”), to give effect to this directive of the Supreme Court. As per the First Advisory, every advertiser and advertising agency had to submit a ‘Self-Declaration Certificate’ (“SDC”), for any advertisement published on or after 18th June 2024, attesting that the advertisement does not contain misleading claims and complies with all relevant regulatory guidelines. This advisory also required every broadcaster/publisher to ensure that the advertisers had submitted the SDC before airing the advertisement.

The Second Advisory amended the First Advisory to include Radio Stations within its ambit. Further, as per the Second Advisory, the mandate on uploading SDCs did not apply to classifieds (other than those directly related to consumer products and services), personal advertisements, statutory advertisements, public information notices, tenders and advertisements related to public functions.

In addition to the above, the MIB had also issued guidelines requiring advertisers/advertising agencies to submit additional information and documents along with the SDCs on the Broadcast Seva portal (for TV and Radio Advertisements) and the Press Council of India portal (for print and digital/internet advertisements). 

The New Advisory supersedes the First and the Second Advisories and restricts the mandate of uploading the SDCs to advertisements for products and services related to the “food and health” sectors. As per this New Advisory, the SDCs for these advertisements would have to be uploaded annually on the MIB portals and the proof of uploading the self-declaration must be made available to the concerned entities that are involved in publishing the advertisements for their record. Further, this advisory clarifies that the responsibility of ensuring that the advertisement complies with Indian laws, rules and regulations is on the advertisers/advertising agencies.

Our Take

The previous advisories and guidelines issued by the MIB had exceeded the remit of the order of the Supreme Court in many respects, particularly in stipulating the requirement for the publishers/broadcasters to ensure the submission of SDCs before airing/publication of an advertisement. While the Supreme Court had issued the order for enforcing the fundamental right to health, the Supreme Court’s directive of uploading the self-declaration was understood to be extending to every advertisement.  Later, in light of the industry representations, the MIB sought inputs from the Solicitor General of India before issuing the New Advisory.

The New Advisory has eased the onerous procedural requirements stipulated in MIB’s previously issued advisories bringing the much-needed respite for all stakeholders involved in the publication of advertisements. The New Advisory has also restricted the sectors for the implementation of the mandate to ‘food and health’ sectors only. Given the supersession of the First and the Second Advisories, the requirement for the broadcaster/publisher to ensure that the advertisers have submitted the SDC before airing the advertisement has also been done away with.

While the New Advisory has addressed the concerns of the industry, at this stage, there is ambiguity regarding the products and services that would be considered to be “related to food and health sectors”. It is also unclear whether the advertisers/advertising agencies who are required to upload SDCs for advertisements for products and services related to the food and health sectors are required to follow the guidelines issued by the MIB and submit all the information/documents mentioned in the guidelines.

More clarity regarding the implementation of the mandate on self-declaration of advertisements is expected from the Supreme Court in the next hearing in the case of Indian Medical Association & Anr. v. Union of India on 9th July 2024.

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