Self-Declaration Certificate for Advertisements

As per advisory from Ministry of Information and Broadcasting dated June 3, 2024 and June 5, 2024 (“Self-Declaration Advisory”), all advertisers/advertising agencies need to submit a self-declaration certificate for all the advertisements to be published after June 18, 2024 stating that “their advertisements does not make any misleading claims and complies with all relevant regulatory guidelines, including but not limited to those stipulated in Rule 7 of the Cable Television Network Rules, 1994 and Norms of Journalistic Conduct related to advertisement issued by the Press Council of India”.

Per the aforementioned advisory, no advertisement can be published/broadcasted on television, radio, print and digital media unless the aforementioned self-declaration is made and proof of uploading the same is submitted to the publishing platform.

This advisory comes in the backdrop of the recent ruling by the Hon’ble Supreme Court in the case of Indian Medical Association v. Union of India & Ors to safeguard consumers from misleading advertisements, with the claims made by Patanjali in its advertisements forming a backdrop of the matter.

To facilitate compliance, the Ministry of Information and Broadcasting has introduced a feature on the Broadcast Seva portal for TV and radio advertisements, while the Press Council of India's portal caters to print and digital/internet advertisements. The self-declaration has to be made through these portals. The advertiser / advertising agency needs to fill up the application on the aforementioned portal and provide the following details:

a) Letter of authority to be given by the advertiser/advertising agency authorising the relevant person to make the declaration. Format of the letter of authorisation has been provided in the guidelines issued by Ministry of Information and Broadcasting’

b) Advertisement title; brief details about the advertisement; entire script of the advertisement; and link of the advertisement on a particular url which should be saved for future reference as well;

c) Date of release of advertisement.

On submission of the application online with the aforementioned data, the self-declaration certificate with a specific certificate number will be auto generated along with a qr code. This means that the language in the self-declaration cannot be changed or modified. Sample of the self-declaration is attached as Annex A.

We have drafted some FAQs to give you an overall understanding of the new requirement of furnishing a self-declaration before publishing an advertisement.

Frequently Asked Questions (FAQs)

1. What does the term “advertisement” mean?

As per the Consumer Protection Act, 2019, advertisement means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents.

Accordingly, any endorsement or promotion, whether by way of an image, audio or video, would be covered under the scope of the aforementioned definition. Reels / videos/ posts on social media where any product or service is promoted or publicised, is also typically construed as an advertisement.

However, please note that certain advertisements like classifieds (to the extent they do not deal with consumer products and services), personal advertisements, statutory advertisements, public information notices, tenders and advertisements related to public functions are excluded from the requirement of self-declaration.

2. Who is required to comply with the Self-Declaration Advisory?

An advertiser or advertising agency is required to make the self-declaration. As per the Guidelines for the Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, “advertiser" means a person who designs, produces and publishes advertisements either by his own effort or by entrusting it to others in order to promote the sale of his goods, products or services and includes a manufacturer and service provider of such goods, products or services; and “advertising agency" means a person or an establishment providing services in designing and production of advertisements or other related services for a commission or fee.

Further, publishers of the advertisement (including newspapers, broadcasting channels, OTT, any other online platform where advertisements are published) are required to ensure that before the advertisement is published, the advertiser or the advertising agency has made the self-declaration on the relevant portal. This can be done by verifying the certifications uploaded on the relevant portals, which is available publicly.

3. What are we confirming in the declaration?

The declaration requires a confirmation that no “misleading claims” are made in the advertisement and all applicable laws to advertisements are complied with. Misleading advertisements is defined under the Consumer Protection Act, 2019 and the Guidelines for the Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 provides further guidance on what constitutes misleading advertisement.

Additionally, a number of sector specific laws (example FSSAI, Drugs and Cosmetics etc.) also provide for guidelines on misleading advertisements. The assumption is that parties would in any case comply with the applicable laws while making the advertisement – the self-declaration process is only an explicit confirmation required from the parties

that its advertisement is not misleading.

4. Is the self-declaration entity specific or advertisement specific, that is, is a self-declaration required each time an advertisement is to be published?

Self-declaration is required to be made for every advertisement before its published.

5. Should influencers and endorsers / celebrities be concerned?

If the brand, in its capacity as an advertiser, makes the self-declaration for the advertisement / promotional material created by the influencer/ endorsers/celebrities, then such influencer./ endorsers may not make a separate declaration. However, if the brand does not make the self-declaration, the influencer / endorser may make the self-declaration themselves before publishing the advertisement, as they maybe considered as an “advertising agency”. The Supreme Court has also referred to the obligation of influencers / endorsers in ensuring that misleading claims are not made by them in advertisements. Accordingly, if the self-declaration is not provided by the advertiser, then the influencer / endorser may make the self-declaration themselves.

6. How long does the entire self-declaration process take?

Once the user id and password is generated and all details including the script of the advertisement etc. is available, the process is fairly easy and the certificate is auto generated almost instantly.

7. Are start-ups / MSMEs exempted from the aforementioned Self-Declaration Advisory?

Currently, start-ups / MSMEs are not exempted from complying with the Self Declaration Advisory and there are no exemptions in the applicability of the advisory to persons / companies / individuals etc. basis any financial thresholds.

8. Do on-going advertisements need to comply with the Self Declaration Advisory?

No, only advertisements to be published after June 18, 2024 need to comply with the Self Declaration Advisory.