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A book which explores darker sides of corporations.

Organisations exploiting poor countries for greater profits

Naomi Klein – born in May 8, 1970, is a Canadian journalist, author and Activist known for her political analyses of corporate globalization. Two adversaries changed her outlook for ever in life; First the critical stroke of her mother that lead to paralysis of her Second her close interaction with Corporate giants and MNCs n TNCs.

In 2002 she published the book “No Logo” which became a manifesto Of anti corporate globalization movement. In her work she has exposed  the darker side of Corporations, where, in The focus of brand – oriented culture, how these organization exploit Workers in the world’s’ poorest countries in pursuit of greater profits. The book focuses on branding and often makes connections with the Anti – globalization movement. She touches on the issues of sweatshops American and Asia culture, jamming, corporate censorship etc. The book is divided into 4 sections – No Space, No Choice, No Jobs, And No Logo.

The first 3 deals with negative effect of brand oriented Corporate activity, While the fourth discusses various methods people have taken in order to Fight back.

No Space :  The book begins by tracing the history of brands – which are often used as Recognizable face as factory produced products. With the focus on brands they started selling lifestyle changes in the Youth  Demographic and clearly made an entry into market segmentation. Brand names like Nike, Pepsi expanded beyond the mere product name  and created a brand obsession with the youth, along with movie stars, Brand celebrities, athletes to grass root social movements. Multinational Corporation considered marketing of brand name to be More important than the actual manufacture of products. In order to reach out to younger customers the brands have penetrated Into school system and they have pipelined advertisement into the Schools and used their position to brainwash the young minds in Accepting their products by clever marketing strategies.

No Choice: In this section she discusses how brands use their size and clout to Limit the number of choices available to the public. Whether it is Wal- Mart’s colossal status or Starbucks’ aggressive  Invasion of a region the goal is the same. Each of the major brands Wishes to become dominant force in their respective field. Sony and Disney simply open up their own chain stores, preventing Competition from even putting their products on the shelves. This section also discusses how corporations merge in order to outs New entrants. She also highlights how Wal – Mart often threatens to pull various products Off the shelves, forcing the manufacturers to comply to their demands. She also highlight how huge corporations blatantly infringe Copyright,  Trade mark and Patents laws for their benefits.

No Jobs: This section deals with darker side of how companies have moved jobs  Specially of manufacturing from local factories to foreign countries. They Openly flout all labor laws and working conditions to their advantage. In the guise of making profits and creation of wealth, these corporations Offer temporary employment to college students, and outsourcing to Contract labor initiatives. This has resulted in resentment along with rising unemployment, labor Abuses abroad, disregard for environment and ever increasing presence Of advertising breeds, a new disdain for corporation.

No Logo:

In the final section of this book, she discusses various movements that Have sprung up in the 90s.These includes Adbuster magazine and cultural jamming movement, as Well as reclaim the streets and the McLibel trial. Less radical and racial abuse protest were also discussed, such as Gender, religious inequalities and discrimination due to color and Nationality were raised at various fora.This book and her writing paved the way for better perception among the Citizens of various countries of dealing the way of treating the MNCs and The TNCs and their outright brand imposition and violations. Her book was a darling among the masses and developing countries And became an eye sore in developed nations.

Critiques in Advertising

Vance Packard

Was born in Pennsylvania in 1914, graduated from the Same University. He worked as a columnist for the newspapers and Associated press. He wrote number of books on social issues “Naked Society”, “The Waste Masters”, “People Shapers” and “Hidden Persuaders”. The Hidden Persuaders show how advertisers use motivation research To find out the consumers hidden urges.

Consumers: They are unpredictable and one cannot assume what they want, one Cannot assume that people tell truth about their likes and dislikes, it is Dangerous to assume that people can be trusted and to behave rational.

The Rise of Motivational Research: Motivational Research gives starting explanations for so many of our Daily habits – why the consumers behave the way they do.The hidden weakness of consumers are probed and these are manipulated To influence behavior. Advertisers are able to manipulate consumers by using psychiatrist and Social scientist as consultants and by motivation research.

Motivational research seeks to learn what motivates people making choice It uses techniques to reach unconscious / subconscious mind and try to  Understand different levels of human consciousness.

First level: Rational level – people know what they are doing

 Second level – Preconscious and Subconscious, where person may know In vague way what is going on but would not be willing to tell why – fears,Assumptions, prejudices etc.

Third level- he is not only aware of his feeling and attitudes but would not Discuss them.

Conflict between Pleasure and Pain:

Advertisers felt they had to successfully manipulate the consumers’ guilt Feelings, fear and inner tensions – many people continue to smoke despite Guilt feelings about the habit, they smoke to relieve tension, to express Sociability, as a reward for effort, as a proof of daring and so on.

Hidden Needs:

Motivation research gives clues to the advertiser by studying the consumer Subconscious needs, yearnings and cravings.

Eight hidden needs were identified:

Emotional Security

We all start out as fragile emotional beings and very few of us achieve deep emotional security, so we all keep seeking it.

Adverts play to this when they promise comfort, happiness and banishing of bad feelings. They may also play on the security aspect, emphasizing home, permanence and safety.

Freezer represented that there is always food in the House and food represents security, warmth and safety.

Reassurance of worth:

In a connected world we can lose sense of who we are and what we are worth. We thus seek reassurance that we are adding value and deserve our place in society.

Adverts play to this when they promise that if you buy products you will be doing the right thing, for example in saving the environment or helping others. Charities of course play to this all the time, praising you for helping those less fortunate (and maybe who are worth less). Celebrities are also used when they effectively say ‘you will be admired and valued like me’.

Kitchen gadgets enhances housewife Feeling of worth and esteem, a feeling of being important.

Selling Ego Gratification:

Ego gratification is related to worth in that they are both about the sense of identity, but this is perhaps a little more base, where we a need for praise and our egos to be ‘stroked’. For example, when we do something at work we want to be congratulated and praised, much as we needed to be valued and praised as a child.

Adverts play to this when they praise us for buying products (perhaps ahead of time) or include praise of a sympathetic character (with whom we identify).

Impotence of human elements in running an appliance, Machines, Car etc.

Selling Creative Outlets

We all like creating and making things, and even a simple assembly process as with Lego toys can bring much pleasure. Many jobs have little creative content, leaving this need unfulfilled. We thus seek creative opportunity in other parts of our life.

Adverts offer creativity when they sell objects where we can be creative, from food ingredients to clothes. They may also touch our creative needs by being creative in the presentation they use.

Value additions made by Manufacturers in giving Free utensils to housewives to make usage of Micro oven useful.

Selling love objects:

Children and adults want both to love and be loved. Children have dolls and teddy bears, but what do adults have? They have one another, their cars, their pets and gadgets. They need something to love and if they do not have something they will buy or make one.

Adverts offer to take us back to childhood with child-like personalities. They sell us things to love and things for our loved ones (including our pets).

Young mother getting fascinated by the first walk of Her child.

Selling sense of Power:

When we are in control we a sense of ability to choose and perhaps power over others. When we can direct others we move up the social order and so are, theoretically at least, safer. Big cars, chunky tools, solid houses and old banks all make us feel safe and, when we own or use them, powerful.

Adverts thus emphasize the solidity and reliability of the products they sell. They insinuate how buying will put you in charge. They imply that you are in control when you decide to make that purchase.

Fascination of products that offer personal Extension of power – Cars give a renewed sense of power to the owner.

Selling sense of Roots:

Our roots are a key part of our sense of identity. Where we come from, our heritage, our family, our nation are important for that feeling of who we are. We identify with our old school, our college, where we were brought up, our country, our employer, our religion. All are important, and the longer we stay in one place and the longer ago it happened, the more important it is for us.

And yet we live mobile lives, flitting from place to place, job to job and even marriage to marriage. We seek roots but in seeking to satisfy other needs we make ourselves rootless.

Adverts emphasize family, nation, team and whatever else they can use to anchor you and hence you to them. They show that if you are American then they are American too. They make ‘old fashioned’ trendy by calling it ‘traditional’.

Sense of the good days and homely associations,  

Campaign – “Grandma used to make”

Selling immortality:

Perhaps the biggest fear we have is of death. Or maybe not death but of ceasing, of becoming nothing. We likewise seek to create meaning in our lives so we may live beyond death. We have children, write books, build companies and more. We also seek to cheat age, striving to look younger when perhaps we should grow older more gracefully.

Adverts play to this with age-defying products and spry older people playing and enjoying life. They use young people to help us avoid thinking about death and encourage us to recapture a lost youth.

Selling insurance products without reminding that It is an old age contingency and to make the family safe and secure

Ad campaign “Insure and be Secure”.

Jean Kilbourne

She has various opinions of her own on various aspects of social Responsibilities of advertising:

We are the Product:

Millions are spent on advertising. TV, Radio programs are simply fillers For space between commercials.Advertising specially for tobacco and alcohol are forever claiming that Advertising does not influence any one and kids smoke and drink beer Because of peer pressure. “Reach the right bird the whole flock will follow” Consumers are brainwashed and easily lead, and they are like sitting Ducks and direct marketing is like dropping a smart bomb with pinpoint Accuracy. Children are vulnerable on the internet where they are manipulated by Getting into their privacy with games and contest. Women magazine no doubt highlight the risk of Breast cancer and health  Care, but at the same time release cigarette and Alcohol advertisements.

The content of advertisement has seen a dramatic change, they have Become more commercialized and materialistic – kids do not want to Become good athletes, scientist but are more in leveraged brands and Fashion etc.

Corruption of Relationship

Many advertisement promote glorifying materialistic instinct in relations “better relationship – buy this product you will be loved”

Crazy for Cars:

Ads encourage us to think of cars as family members. Mazda ad sys “it not a family car it is a family”Lexus ads says “We don’t sell cars, we facilitate love conditions” Mercedes Benz – “buying car is like getting married, it is a good idea to Get to know the family first”.

Falling in love with food:

It is very essential to ensure that the nutritive value of the food are Highlighted and the contents properly displayed with statutory warning Food that are heavily advertised are seldom nourishing. Food can  Nourish us and bring joy; it cannot love us, it cannot fill us emotionally.

Cutting Girls to Size:

Advertisers take advantage of vulnerability of adolescence by offering  Solutions and take advantages of insecurities and anxieties of young  Persons. Girls of all age get message that they must be  lawlessly  Beautiful and thin.

Alcohol & Rebellion:

Jean Kilbourne states the number one drink in America is beer because  Beer is the choice for young people. At this point people age between 15 To 25 are vulnerable and are subject to car, homicide and suicide. Quite similar is the women in America who take up to drinking for fashion And then get addicted and suffer from alcohol related problems.

Rage and Rebellion in Cigarette in Advertising

Of all lies advertising tells us, is regarding cigarette ads which is most Lethal. 90% start smoking before 18 years. Jean Kilbourne herself started smoking at the age of 13, she was lonely Distressed, depressed felt awkward and had very low self esteem. Cigarettes smoking were constantly glamorized and assumed to be safe And socially desirable. Suppressed anger also plays an important role in alcoholism and in eating Disorders.

Advertising an addictive Mind Set:

The responsibility of advertisement in highlighting the side effects of  Products advertised. Over exaggeration of fantasizing the products are  Glorified beyond a point.

Addiction as a relationship: Ads like beer or whisky bottles stating “Bring Your family home for holiday”. A vodka ad states “The perfect summer  Guest”.

Advertising and Violence:

Sex in advertising is more often about power than passion, and the Violence dehumanizes and objectifies women.Male violence is encouraged by ads that encouraged by ads that Encourage males to be forceful and dominant to value sexual intimacy More than emotional intimacy.

Redefining Rebellion:

Ads states that there are instant solution to every problem, self Medication. False claim of global warming. Actions against usage of tobacco and alcohol products. Schools should be kept out of as a medium of advertising.

Naomi Wolf – The Beauty Myth

Naomi Wolf was born in Nov 12, 1962, is an American author and Political consultant.With the publication of this book she became a leading spoke person of Third wave feminist movement.She remains an advocate of feminist causes and progressive politics,With recent emphasis on arguing that there has been a detoriation of Democratic institutions in the United States. This book was published in 1991- it examines beauty as a demand and  As a judgment upon women. Wolf argues that women in western culture are damaged by the pressure To conform to an idealized concept of female beauty.

She argues that the beauty myth is political way of maintaining the Patriarchal system. She also claims that this system keeps the women Under control by weight of their own insecurities. In the early 1990s she garnered international public notoriety as a  Spoke person of third wave feminism as a result of tremendorous  Success of her book. Wolf idea of “iron maiden” an intrinsically standard that is then used to Push women physically and psychologically for the failure to achieve  And conform to it. Wolf criticized fashion industries as exploitive of women but claimed The beauty myth extended to all areas of human functioning. Wolf feels that women should have the choice to do whatever they want With their faces and bodies without being pushed by an ideology.

She argues that the beauty myth is political way of maintaining the Patriarchal system. She also claims that this system keeps the women Under control by weight of their own insecurities. In the early 1990s she garnered international public notoriety as a  Spoke person of third wave feminism as a result of tremendorous  Success of her book. Wolf idea of “iron maiden” an intrinsically standard that is then used to  Push women physically and psychologically for the failure to achieve  And conform to it. Wolf criticized fashion industries as exploitive of women but claimed  The beauty myth extended to all areas of human functioning. Wolf feels that women should have the choice to do whatever they want  With their faces and bodies without being pushed by an ideology.

Noam Chomsky – Understanding Power:

Was born on Dec 7,1928, is an American linguist, philosopher, cognitive Scientist, political active ist author and lecturer attached to MIT. Understanding Power – collection of edited interviews, resentations and Discussions which Noam was associated with activist and community  Groups over 10 year period 1989 – 1999. They are mostly in question and answer format covering topics ranging From globalization, activist strategies and media and how they use the  Structure power to maintain their grip on majority of people across globe. He was nicked named as “arguably most important intellectual alive” by New York times for this pioneering effort.Much of the discussions are based on the continuing oppression of many World’s people, covering imperialism, neoliberalism, the war industry etc.

Noam dared to strip American and European foreign polices and  Exposed their darker side of discrimination and negative attitudes Towards “Third World” countries. He is of the view that American Europeans are highly hypocritical in  Nature that only cared for their vested interest.Noam is of the opinion that it requires an organized resistance in all  Forms democratic power, provokes the reader to empower themselves  To help and build a movement that is truly democra tic in such a way That their voice to be heard in all fora of both national and international Including United Nations, WTO etc, such that the unwanted dominance  Of Developed countries are curtailed.

Vance Packard and Eight Needs

Vance Packard was born in Pennsylvania in 1914 and graduated from the Pennsylvanian university. He worked as a columnist for the newspapers and associated Press. He later became an editor and writer at “American Magazine”. He wrote a number of books on social issues like ‘The Naked Society’, ‘The Waste Makers’, ‘People Shapers’, ad ‘Hidden Persuaders’ which was his first book. Hidden Persuaders won the National Book Award. Vance Packard also taught creative writing at Columbia and New York University.

In Hidden Persuaders he tries to show how advertisers use motivation research to find out the consumers hidden urges. He writes how advertisers use this data to sell products and services to Consumers. The consumers are unpredictable, what consumers say they want, does not reflect on what they actually do when buying a product.

One cannot assume that people know what they want. One cannot assume that people will tell you the truth about their wants and dislikes even if they know them. Vance Packard writes that it is dangerous to assume that people can be trusted to behave in a rational way. People don’t act reasonably but they do act with purpose.

Eight hidden needs were identified:

Motivation research gives clues to the advertiser by studying the consumers’ subconscious needs, yearnings and cravings. Once the needs were identified the necessary appeals could be built into the advertising campaign.

1. Emotional Security:

Home freezers did not make sense economically (the cost of electricity, the leftovers that are thrown out). A motivation study revealed that the freezer represented that there is always food in the house and food represents security, warmth and safety. People feel insecure and want food around them. Dr. Dichter advised advertisers to sell gadgets with the security theme.

2. Selling Reassurance of worth:

Advertisers’ show no awareness that women have any other motive for using washing products than to be clean, to protect their hands and to keep objects clean. Ad men should realize that it is necessary to enhance the housewife’s feeling of worth and esteem, a feeling of being important.

3. Selling Ego Gratification:

This is similar to selling reassurance of worth. E.g.: A machine to lift great loads very efficiently but the product did not sell. Depth studies revealed that the ad put all the glory on the machine. The operator was not visible at all. The ad was changed and the new ad showed that the operator was the complete master of the machine.

4. Selling Creative Outlets:

Gardening is described as a pregnancy activity. Gardening gives older women a chance to keep on growing things after they have passed the child growing age. The food mixes aroused feelings of guilt feelings. Housewives fait that if they used ready to eat food it showed that they were inferior housewives. So depth studies advised manufacturers to leave housewives something to do. Cake mixers then had the housewife add eggs and milk.

5. Selling Love Objects:

When advertising for a Pianist Liberace the target audience was women past the childbearing age, a picture of his mom was shown smiling in her rocking chair while her son performs. The wide, trustful child like smile persists on the singer.

6. Selling Sense of Power:

Consumers show a fascination for products that offer a personal extension of power. E.g.: cars give the owner a renewed sense of power and masculinity, an emotional need. This need for a sense of power particularly in men is very thoroughly exploited by advertisers.

7. Selling a Sense of Roots:

Consumers seek a sense of the good old days and homely associations. Campaigns show mother and home themes “Grandma used to make.”

8. Selling Immortality:

One of the problems in selling insurance to women is how to do it without reminding them they are getting older. Life insurance to males who are breadwinners and whose life is to be insured show the comfortable life led by survivors thanks to insurance. The real appeal is to assure the buyer the prospect of immortality in order to control his family after death; emotional problems should be stressed rather than comfort of surviving family.

Six Sigma

Six Sigma at many organizations simply means 9 measures of quality that strive for near perfection. It is a disciplined, data driven approach and methodology for eliminating defects and minimizing variability in manufacturing and business processes. It uses a set of quality management methods, including statistical methods and creates a special infrastructure of people within the organization. Six Sigma methodology improves any existing business process by constantly receiving and returning the process.

The Six Sigma doctrine asserts that:

continues efforts to achieve stable and predictable process results are of vital importance to business success

manufacturing and business processes have characteristics that can be measured, analyzed, improved and controlled

achieving sustained quality improvement requires commitment from the entire organization, particularly from top-level management

Six Sigma has:

A clear focus on achieving measurable and quantifiable financial returns from any project

It places increased emphasis on strong and passionate management leadership and support

To lead and implement the Six Sigma approach, a special infrastructure of ‘Champions’, ‘Master Black Belts’ and ‘Black Belts’ are initiated

Decision making is done on the basis of verifiable data rather than assumptions and guesswork

Six Sigma projects follow two methodologies:

DMAIC – for projects aimed at improving an existing business process

DMADV – for projects aimed at creating new product or process designs

A. DMAIC has five phases:

D – Defining the problem

M – Measuring the key aspects of current process

A – Analyzing the data to verify cause-effect relationship

I – Improve and optimize current process

C – Control the future state process

B. DMADV also has five phases:

D – Define the design goals

M – Measure the key aspects of current process

A – Analyze, develop and design alternatives

D – Design and optimize the design

V – Verify the design, set up the pilot runs

ASCI

Advertising Standards Council of India is a self regulatory voluntary organization of the advertising industry. The Role and Functioning of the ASCI and its Consumer Complaint Council (CCC) in dealing with Complaints received from Consumers and Industry, against Advertisements which are considered as false, misleading, indecent, illegal, leading to unsafe practices, or unfair to competition, and consequently in contravention of the ASCI Code for Self Regulation in Advertising.

The Advertising Standards Council of India (1985) has adopted a Code for Self Regulation in Advertising. It is a commitment to honest advertising and to fair competition in the market place. It stands for the protection of the legitimate interests of consumers and all concerned with advertising – advertisers, media, advertising agencies and others who help in the creation or placement of advertising. As the Code becomes increasingly accepted and observed proactively, three things will begin to happen.

  1. Fewer false, misleading claims
  2. Fewer unfair advertisements
  3. Increasing respectability

In India, as in several advanced economics, there is only ONE BODY for Self Regulation in Advertising – the ASCI, which is concerned with safeguarding the interests of consumers whilst monitoring / guiding the commercial communications of Practitioners in Advertising on behalf of advertisers, for advertisements carried by the Media, in their endeavors to influence buying decisions of the Consuming Public.

ASCI’s Mission

ASCI has one important goal: to maintain and enhance the public’s confidence in advertising. ASCI seeks to ensure that advertisements conform to its Code for Self Regulation which requires advertisements to be:

  1. Truthful and fair to consumers and competitors
  2. Within the bounds of generally accepted standards of public decency and propriety
  3. Not used indiscriminately for the promotion of products, hazardous or harmful to society or to individuals particularly minors, to a degree unacceptable to society at large

ASCI propagate its CODE and a sense of responsibility for its observance amongst advertisers, advertising agencies and other connected with the creation of advertising. ASCI encourages the public to COMPLAIN (*) against advertisements with which they may be unhappy for any reason and ensures that each complaint receives a prompt and objective consideration by an impartial committee (CCC) which takes into account the view point of the advertise, and an appropriate decision is communicated to all concerned.

ASCI endeavors to achieve compliance with its decisions through reasoned persuasion and the power of public opinion. If an AD is to be reviewed for its likely impact on the sensibilities of individual viewers of TV, or readers of press publications, the Advertisers concerned is informed of substantial issues raised in the complaint, in the exact context of the specific advertisement, as conveyed by the perception of the complainant, and to elicit the appropriate response by way of comments from the Advertiser.

Only then will the Consumer Complaints Council (CCC) of the ASCI be in a position to deliberate meaningfully on the issues involved and to arrive at a fair and objective conclusion, which would stand the scrutiny of all concerned with the right to freedom of expression, and the freedom of consumers to choose the products / services made available to them in the market-place. A clearly readable copy or clipping of the Ad under complaint, with full particulars of name and date of publication, or a printout of an Ad or promotion on a Website or in case of a TV commercial, the channel, date and time or programme of airing, and a description of the contents of the TVC, along with a hard copy of the complete complaint preferably signed by the complaint. The identity of the complaint to the Advertiser is not disclosed.

The Code of Advertising Practices

To ensure the truthfulness and honesty of representations and claims made:

  1. Advertisements must be truthful.
  2. Where advertising claims are expressly stated to be based on or supported by independent research or assessment, the source and date of this should be indicated in the advertisement.
  3. Advertisements should not contain any reference to any person, without due permission.
  4. Advertisements shall not distort facts nor mislead the consumer by means of implications or omissions.
  5. To ensure that advertisements are not offensive to generally accepted standards of Public Decency.
  6. To safeguard against the indiscriminate use of Advertising products hazardous to society
  7. No advertisement shall be permitted which:
  1. Tends to incite people to crime or to promote disorder and violence or intolerance
  2. Derides any race, caste, colour, creed or nationality
  1. Advertisements addressed to children shall not contain anything, whether in illustrations or otherwise, which might result in their physical, mental or moral harm or which exploits their vulnerability.
  2. Ads should not show children climbing or reaching dangerously to reach products or for any other purpose.
  3. Advertisements should contain nothing which is in breach of the law, or omit anything which the law requires.

TYPES OF CONTROVERSY

Background: In presenting many versions of the Gender Ads Project over the years, I inevitably here the phrase, “What’s wrong with ads?” As in the case of many other aspects of popular culture, individuals are often unable to understand the significance of our culture and even in the case of their being able to do so, they are under-prepared in knowing how to react to culture. As bell hooks suggests, individuals are generally incapable of developing and applying a visual literacy. Without it, she continues, we will be unable to enact meaningful social change. Just like learning skills in mathematics or basic English, citizens desiring a free society will have to learn new critical skills. I have suggested some of these in a related website. Ultimately, controversies arise in the study of popular culture, and I believe it to be important to address a few I have encountered over the years.

▪ Controversy #1 – Ads are Fun – Many people suggest that ads such as the ones in the Project are fun forms of entertainment. Perhaps no one takes them seriously, or they are simply presented as objects for amusement in a capitalist society.

Response: Although many forms of popular culture may be “fun” (which itself is a cultural construct), we know that fun for one person can often be pain or death for another. As I hope the Project will illustrate, the stakes of our culture are too high to simply relegate the discussion of it to realms of entertainment.

▪ Controversy #2 – Ads May Contain Troubling Images, But You Know What?, They are Simply Reflections of Advertisers Who Want Us to Buy Things – A very common criticism of the Gender Ads Project is that it overlooks the primary purpose of advertising – the selling of products or services. Many people have told me that because advertisers want to sell their products, any content, including violence, rape, death, is acceptable grounds for our advertising culture.

Response: This argument is very prevalent and it is an indication of the troubling nature of our society. Since childhood we have been indoctrinated to believe in the importance of materialism. Life in a capitalist society is governed by money, competition and various forms of violence (state-based and individual), and the preservation of our society is maintained through the illusions that tell us to consume and essentially respect our commodities. Have a look at either of the following sets of ads and ask yourself if the images are OK simply because they are selling products?Set #1;Set #2

▪ Controversy #3 – Ads May Contain Troubling Images, but Individuals (Models) Chose to Play a Major Part in Their Creation – This argument relies on the idea that because an individual chooses (i.e. free will) to be a model in a particular ad, we should be less critical of advertising.

Response: This argument is often raised in discussions of numerous gender topics. You are probably familiar with it: There is nothing wrong with pornography because women are choosing to play roles in pornographic films. Theorists of gender have suggested that women can also be complicit in their oppression, and as Allen Johnson has written in numerous texts on patriarchy, we should focus on the system issues of oppression in our society. In this case we should recognize that the mere presence of women in situations of oppression cannot justify oppression.Here is how you can read about stopping domestic violence and violence against women. Here is acollection of resources related to violence against women.

▪ Controversy #4 – Ads are Harmless – I have also heard viewers of the Project tell me that ads may contain offensive imagery or themes, but that essentially they are harmless because no one takes them seriously and no one’s behavior is effected by them.

Response: Ads, like any form of popular culture, are complex semiotic, political and cultural constructs that operate in an equally complex system. Cultural theorists would never relate the viewing of an ad, or an MTV video as in the case of Dreamworlds II, to an act of violence, rape, sexual assault, hate speech, etc., but it is clear that popular culture is one of many influential elements in our socialization and living. By more critically viewing our popular culture we might come to realize that ads are never harmless. Here isone website that offers statistics on rape. Here is asecond.

▪ Controversy #5 – You Are Over-Reading the Ads – The suggestion is that an analyst of popular culture is over-reading ads by interpreting various meanings and symbolizations in them.

Response: The argument is a reflection of the problems associated with the interpretation of popular culture. Namely, our inability to critically read the culture around us. It will be important for the free society to develop more resources to interpret and respond to our world.

▪ Controversy #6 – By Implication of Addressing the Negativity of Ads, You are Suggesting that They Be Censored – Many people suggest that the analysis of ads will ultimately lead to a censored of them and the media.

Response: There is a major debate related to the media and the issue of censored that continues to inform our public culture. Indeed, in understanding pornography one has to be open to the many voices that argue against the censorship of pornography while at the same time focusing on the negative effects that pornography produces in us and our society. Personally, I believe that some of this debate has been miscast. In fact, as Sut Jhally suggests in Dreamworlds II, in a truly open society one would expect to be presented with multiple and diverse views about gender and sexuality in our popular culture. The truth is that our society presents only a limited view of these important social constructs. So in a sense we are already the victims of censorship and what we might encourage, if we desire a true free and equal society, is the presentation of a multiplicity of views on any subject.

CGSI

The Consumer Guidance Society of India (CGSI) was formed to fight consumer exploitation of all forms. The consumers have often been given substandard products & services, adulterated foods, short weights & measures, spurious drugs, exorbitant prices & many other outrageous crimes.

The CGSI has many achievements:

  1. It is the earliest consumers’ organization founded in 1966.
  2. CGSI was the first to demand a Consumer Protection Act.
  3. 70% of the complaints have been redressed.
  4. CGSI established a formal Product Testing in India in 1977.
  5. “Keemat” was the first magazine published by CGSI imparting important information to consumer.
  6. CGSI promotes consumer education, undertakes training project in rural areas & represents consumer interests with government & other bodies.
  7. CGSI received the National Award for Consumer Protection in 1991.
  8. CGSI is the only Indian consumer organization to be council member of consumer International for 25 years.
  9. CGSI is a member of the Master State Consumer Protection Council.
  10. CGSI participates in large number of technical Committees & government decision making bodies.

In 1975 CGSI pressed for a Consumer Protection Act & Consumer Court. The CGSI deals with consumer complaints & gives guidance to those who wish to go to the consumer court. The CGSI also brings both parties together to resolve issues. It has covered many issues relating to medical malpractice & negligence, insurance non-payment, substandard drugs, defective household appliances, etc. Due to the efforts of CGSI, ISI certification for pressure stove became mandatory. CGSI has managed to have consumer education introduced in schools at the 9th standard & being covered progressively from 4th standard. The subjects taught are Consumer Movement, Right & Responsibilities of Consumers Food Adulteration, Weights & Measures, the Environment, etc.

CGSI have standard a rural project in villages in Thana & Raigad districts in 1997. CGSI launched the Pedestrian wing in June 1999. The activities include regular & continuous interaction with Traffic Police, Transport Commissioner & RTO at all levels for redressal of grievances of pedestrians & improvement in facilities. The pedestrian wing works closely with likeminded NGO’s & other is in contact with the Pedestrian Association of UK. CGSI was the first consumer organization to demand special consumer guidance for redressal of consumer complaints. The delegation of five consumer organization from different parts of India pressed for a comprehensive Consumer Protection Act, Special consumer court & directorate of the Act.

CGSI handles consumer complaints & offers legal advice. If there are a number of complaints against a particular party both are brought together to resolve the issue. The CGSI complaints committee meets twice a week 70% success in forward complaints were medical surgical malpractice & negligence, insurance, non-payment, sub-standard drugs, medicines, home remedies, defective household appliances, poor quality, food & drink, misleading advertising claims, etc. CGSI education committee has been working to introduce consumer education in school. The Maharashtra Education board has now introduced consume education at the 9th standard. They are taught consumer movement, food adulteration, weights & measure, environment, etc. CGSI have also started rural projects. CGSI is the first NGO to start a forum for the pedestrian.

How to complain:

  • Be sure the complaint is sound.
  • Present it politely.
  • Preserve cash memos & warranty card.
  • First approach the retailer. He may have a valid explanation.
  • If he is unresponsive write to the manufacturer quoting No & date of warranty card.
  • Retain all originals keep copies of your letter.
  • In case of suspected food & drug adulteration write to the State health authorities retain samples where possible.
  • If CGSI products perform pearly write to the respective agencies.
  • If there is no response write to the consumer guidance society of India.

Central Consumer Protection Councils

1.     The central council consists of:

·       The chairperson who is the minister in charge of the consumers’ affairs in the central Government.

·       Other official & non-official members representing such interest.

2.     They meet as and when necessary. At least one meeting has to be held every year.

3.     The chairperson decides where the meeting could be held.

4.     The objective of the central council is to promote & protect the consumers.

·       To stop marketing of goods hazardous to like property.

·       To be informed about the quality, quantity, potency, purity, standard & price of goods.

·       The right to be assured and have access to a variety of goods at competitive prices.

·       The right to be heard & be assured that consumers interest will receive due consideration.

·       The right to seek redressal against unfair trade practices or exploitation.

·       The right to consumer education.

The State Consumer Protection Council

Same as Central Consumer Protection Disputes redressal, agencies also known as District forums are set up by the state government.

Consumer Forum – Consumer Disputes redressal agencies also known as District forums are set up by the state government in each district. There may be more than one area district council in a district if the government thinks it is necessary. The central government can set up national consumer redressal commission.

Each District forum consists of:

1.     The president will be a person who has the qualifications to be a district judge.

2.     Two other members are persons of ability, integrity and standing with adequate knowledge or experience or capacity to deal with problem relating to economics, low, consumer accountancy industry, public affairs’ administration, one will be a woman member.

3.     Every appointment will be made by the state government on the recommendation of a select committee consulting of –

a)     President of the state commission

b)     Secretary, Law department of the state

c)     Secretary in-charge of the department dealing with consumers affairs

Every member will hold office for a test of five years or up to the age of 65 years. They cannot be reappointed. The salary or honorarium, other terms & conditions as may be prescreened by the state government.

They can entertain complaints where the value does not exceed Rs. 5 lakhs. The complaint will be within the local limits with the opposite party resides or carries on business with the permission of the district forum.

The commission has the power to award compensation not only for loss or damage but also for injustice, harassment & agony suffered by consumers. A complaint has to be filed by:

ü  The consumer to whom such goods are sold.

ü  Any recognized consumer association even if the consumer is not a member of the said association.

ü  Group of consumers.

ü  Central or state government.

Procedure on the receipt of complaint

·           A copy of complaint is sent to the opposite party asking him to give his version of the case within 30 days.

·           The opposition can proceed to settle the consumers’ dispute in a manner specified.

·           If a test or analysis of the product is to be made, the sample is taken from the consumers, & sent for the necessary lest. The reports of these tests are then sent to the district forum within 55 days. An extended period may be granted if necessary.

·           The complainant has to deposit such fees as may be specified to the laboratory to carry out the analysis. The report will be given to the district forum who will send it to the opposite party with appropriate remarks.

·           If the opposite party objects to the method of testing or the correctness of the finding, the opponent has to submit in writing the objection.

Grahak Panchayat

Grahak Panchayat or Consumer Forum is a social organization registered under Co-operative Societies Act. In 1974 there was a shortage of goods for daily use and other essential commodities.

A group of young people stared the movement with 25 families in one group. 500 such groups were formed. Goods were purchased from manufacturers at wholesale prices and the leader of the group distributed it to the families. As a follow-up of this the Grahak Panchayat was formed in 1986.

The objectives of the Grahak Panchayat are:

v To educate people about consumer rights.

v To build consumer organization to get justice.

v To solve consumer problems.

It was made up of retired people from different fields with plenty of knowledge and experience. There is no membership to this organization. Anyone is free to join voluntarily. It tries to solve problem amicably and use the Grahak court as the last resort.

The Grahak Panchayat has spread all over the country including Andaman. Counseling centers are opened in many areas in a city to give free advice to consumers.

It has a lot of literature on the consumer movement and instructions to consumer on what they can do if they have been cheated. One of their booklets in four editions gives information on government departments, what their functions are and also how complaints can be filed. It says what precautionary measures should be taken and what one can do after being cheated.

Uniform Civil Code (Shah Bano)

Uniform civil code is the ongoing point of debate within Indian mandate to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Article 44 of the Directive Principles expects the state to apply these while formulating policies for the country.[1] Apart from being an important issue regarding secularism in India & fundamental right to practice religion contained in Article 25, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985. Although Article 44 of the Indian Constitution guarantees UCC to all citizens,the debate arose when the question of making certain laws applicable to all citizens without abridging the fundamental right of right to practice religious functions. The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law and remains unreformed since 1937, permitting unilateral divorce, polygamy in the country and putting it among the nations legally applying the Sharia law. The Bano case made it a politicised public issue focused on identity politics—by means of attacking specific religious minorities versus protecting its cultural identity.

Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance. Goa has a common family law, thus being the only Indian state to have a uniform civil code. The Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law.

Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.

The demand for a uniform civil code was first put forward by women activists in the beginning of the twentieth century, with the objective of women’s rights, equality and secularism. Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows. In 1956, the Indian Parliament passed Hindu Code Bill amidst significant opposition. Though a demand for a uniform civil code was made by Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept the compromise of it being added to the Directive Principles because of heavy opposition.

India is a religiously diverse country with all the major religions of the world finding place in this land. At the same time it has also faced the scar of partition which many believe was because of anxieties and apprehensions of a particular religious community. Keeping these issues in mind the framers of Indian Constitution provided right to equality, freedom of religion and later in 1976 through 42nd Amendment Act India was declared a secular, democratic, republic.

Our constitutional forefathers were also aware of the fact in spite of so much diversity in the country there is a need to build social cohesion in the Indian society, need to ensure that progressive ideas are not thwarted on the altar of freedom of religion.

Therefore right to equality, freedom of religion and the reasonable restriction, secularism and Uniform Civil Code concepts were provided for progressive, egalitarian and equal society where state would be empowered to determine the relationship between human beings and the relationship of human with God is left on the discretion of the individual.

The issue of Uniform Civil Code came up in Shah Bano case.

About the Shah Bano case

The Shah Bano case of 1985 was a test case of all the above principles. In this case Shah Bano, a Muslim women and wife of Mohammad Ahmad Khan filed a petition at a local court in Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount for herself and her children.

Husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the defence that since Shah Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total Rs. 5400. The issue was finally taken up by Supreme Court and it decided it in favour of Shah Bano using secular Criminal Procedure Code regardless of religion.

Shah Bano case was landmark case for many reasons:

•      It showed the aspirational and progressive character of Muslim women and other sections of Muslim society, who were ready to challenge the religious orthodoxy.

•      It brought into focus the plight of the Muslim women, the discrimination they has to face in matters related to marriage.

•      It showed that the laws of the land which are secular in character will take precedence over the religiously ordained customs and personal laws.

•      It was triumph of the principle of social justice.

•      It was a step in the direction of implementation of UCC and

•      Most important of all it raised a debate about the rights of women, application of principle of equality. The debate engulfed civil society, religious groups, legislature and common man and nothing can be more fruitful in a democracy than a debate.

In 1986, the Parliament of India passed an act titled The Muslim Women (Protection of Rights on Divorce) Act, 1986, that nullified the Supreme Court’s judgment in the Shah Bano judgment. Diluting the Supreme Court judgment, the act allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the divorce, according to the provisions of Islamic law. When the judgment was overturned by Parliament it showed:

•      That political populism still dominates over rational principles based on equality, human rights and social justice. It showed that it was not only the sentiments of religious minorities but the absence of political will also that prevents the implementation of UCC.

•      The judgment has left a bitter legacy, which prevents further reforms on UCC because of fear of political backlash.

Conflict between secularism, UCC and freedom of religion

The case brought into focus issue of conflict between secularism, UCC and freedom of religion. During the proceedings of case the Islamic groups sighted the judgment as an instance of attack on their religious freedom and their right to their own personal religious laws. Secularism as a principle with western interpretation -‘non-interference by the state in religious matters’ – was used to mobilize support against the judgment.

It raised the question whether secularism, freedom of religion are in conflict with UCC?

When the Preamble of Indian Constitution declares India a ‘secular’ state it means that state is only concerned with the relation of man with fellow man, man with state and not of man with God. He is free to choose his own God, practice the principles of the religion. The Indian doctrine of secularism does not mean absolute non-interference but principled distance from the religion. Thus implementation of Article 44 is under the provision of secularism.

Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them.

The whole debate can be summed up by the judgment given by Justice R.M. Sahai. He said,

“Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the oppressed and for promotion of national unity and solidarity.”

Importance of Uniform civil Code

·         Uniform Civil Code will in the long run ensure Equality. Also, UCC will help to promote Gender equality.

·         It will lead to national integration and draw minorities into the mainstream.

·         It will encourage communal harmony.

Conclusion

In order to promote the spirit of uniformity of laws and accomplish the objectives enshrined in Art.44 of the Constitution, the following suggestions need immediate consideration:

·         A progressive and broadminded outlook is needed among the people to understand the spirit of such code. For this, education, awareness and sensitization programmes must be taken up.

·         The Uniform Civil Code should act in the best interest of all the religions.

·         A committee of eminent jurists should be considered to maintain uniformity and care must be taken not to hurt the sentiments of any particular community.

Council for Fair Business Practices (CFBP)

On October 2, 1966, the Late Mr. J R D Tata, the Late Mr. Ramakrishna Bajaj, Mr. Arvind Mafatlal and Mr. F. T. Khorakiwala, inspired by Mahatma Gandhi’s message came together and formulated a Code of Conduct for Businessmen. Out of this desire to build bridges of understanding between manufacturers and consumer, the Fair Trade Practices Association was born and later renamed as Council for Fair Business Practices (CFBP). It represented the coming together of a section of like-minded businessmen who felt the need to safeguard consumer interests in an organized manner through a forum of Self Regulation and thereby help elevate the public image of business.

Today this organization is the only of its kind in India and has as its member in some of the Country’s leading business houses and Trade Associations. Since its inception the Council has been propagating the code of Fair Business Practices which codifies the norms of business activities that ensure justice and a fair deal to the consumer.

CFBP was set up because doubts arise sometimes in the mind of the consumer about the business community due to some elements whose dealing with the consumer has not been devoid of unfair trade practices. There is a great need for better communication, understanding and rapport between the Consumer and Business. CFBP tries to bridge this gap. It insists on not only prescribing the code, but exhorts its members to steadfastly follow the code of fair business practices.

Though the council is a body of Businessmen, its main objective is to protect the consumer’s interest. The council has remained committed to the philosophy of self – regulation and has brought about awareness that the consumer’s right must be safeguarded and protected which will ultimately promote better business. The image of the business community needs to be improved to gain greater goodwill with the consumer. A satisfied consumer is the best insurance for a businessman. A customer would prefer to deal with a member of CFBP rather than with someone outside the discipline of CFBP.

Bureau of Indian Standards (BIS)

The Bureau of Indian Standards, the National Standards Body of India is statutory body set up Bureau of India Standards Act, 1986. The Bureau is a body corporate and responsible for laying down guidelines for BIS, it comprises members representing the industry, Consumer Organizations, Science Research Institutes and Professional Bodies, Technical Institutions, Central ministries, state government members of parliament. So far over 17,000 standards have been formulated in different technology areas.

Product Certification

The product certification scheme is basically voluntary in nature and aims at quality, safety and dependability to the ultimate customer. Conformity is ensured by regular surveillance of the performance by surprise inspections and testing of samples.

Quality Management Systems Certification (ISO 9000)

BIS is a national agency authorized to operate systems certification in India. It has adopted ISO 9000 series of standards based in international criteria comparable to any other such systems being operated.

EMS Certification

With the growing concern for environment friendly industrial activity, ISO 14000 standards have been developed. BIS after adoption of these standards as national standards, has launched EMS (Environment Management System) Certification.

HACCP Certification

BIS launched HACCP (Hazard Analysis Critical Control Points) based quality certification scheme as per the requirements of ISO 15000.

Hallmarking of Gold Jewelry

In order protect consumers against victimization of irregular gold Hallmarking of gold jewelry was launched under BIS Act 1986.

The bureau has a chain of laboratories located in different parts of the country for conformity testing of products and samples offered by applicants for grant of license. Modernization of BIS Laboratories has also been taken up.

BIS has formulated a plan which emphasizes on:

·           Development of complementary level of standardization, namely, company standardization and association standardization.

·           Effective implementation of standards through sectoral committees, such as steel, food, textiles, information technology.

·           Automobiles and power.

·           State level committees on standardization and quality system to ensure better implementations on standards.

·           Use of India Standards in Legislation.

·           Greater interaction with public and private sector undertakings.

·           Bulk public purchased based on standards and standard market products.

·           Use of standards in education systems.

·           Intensified media campaign to create awareness.

BIS as founder member of International Organization for Standardization (ISO), continues to take part in international standardization. BIS has a set up a consumer affected Public Grievances Department at Headquarters, nominated public Grievance Officers at Regional and Branch office deal with consumer complaints against BIS services and ISI marked products. An Enforcement Department is functioning at Headquarters. Complaints on misuse of Standard Mark are investigated by the Department and appropriate legal action is taken.

PDS (Public Distribution System) Interms

India’s PDS supplies subsidized foodgrains and other essential items commodities through a network of ‘ration shops’. There are approximately 4,62,000 Fair Price Shops. About 160 million families purchase commodities from ration shops each year. The PDS is enormous in terms of expenditure, reach and number of agencies involved in its operation.

State governments issue ration cards to their residents and decide on the quantity consumers are entitled to.

Many problems have plagued its operation. PDS suffers from chronic management shortcomings, the extent and timing of procurement, poor forecasting capacity and antiquated logistical system to support storage and delivery functions, inappropriate product mix and cost inefficiencies.

Many problems stem from systematic corruption. 3.1% of foodgrains 36% of sugar gets diverted to the Black Market through agents and middlemen. Buyers are made to sign that they have bought 10 kgs when they have bought only 5 kgs. Corruption also plagues the process of issuing ration cards.

Today the ration card is used only by people who have no piped gas or cylinder gas. Kerosene is issued only to non users of gas for cooking. The ration card is a very useful identity card whether rations are allowed or not.

The Government has revived the long defunct PDS even for APL (Above Poverty Live) ration card holders.

Consumers however were disappointed sugar (market price Rs. 35 per kg, ration price Rs. 20). One card was entitled to 2 kgs was ok, but not so with wheat and dal. The market price of tur dal was Rs. 90 kg, the PDS price is Rs. 55 per kg (1 kg per card). But consumers complained it had other grains and chaff mixed in it and took a long time to cook.

Wheat was full of stones and insects. The rice supplied could not be cooked and palm oil was used not for cooking but to light diyas.

The government claims to have spent 122 crores a month.

Consumer Education and Research Council

CERC was set up in 1978 as public charitable trust. It is a non-profit, non-governmental voluntary organization. It deals with local, regional, national, international issues related to consumer protection and environment protection.

The Government of India recognized it as a research institute and the government of Gujarat recognized it as a consumer organization.

CERC is funded by many national and international agencies. It is managed by a Board of Trustees.

CERC is India’s only organization with an independent in-house comparative product testing laboratory for testing, evaluation, rating and ranking of consumer goods. The test findings are published in the organization’s subscription based by monthly INGIGHT. The test reports identify the brands and the manufacturers of the products tested. They declare which brands have conformed to the test parameters under the Indian Standards and which have not. The reports also suggest “Best Buys”. The magazine gives:

1.     CERC interaction with the outside world.

2.     Action taken on consumer grievances.

3.     Answers consumer questions.

4.     An update on global news and news of consumer protection.

5.     Consumer cases dealt with or decided.

CERC has involved the Gujarat High Court, Supreme Court of India, MRTP Commission District forums, state and national Commission for redressal of consumer grievances.

Other activities are dealt by CERS – Consumer Education and Research Society.

Consumer Disputes Redressal Forum

CDRF is also known as the consumer court. It has a legal backing and enjoys the powers of a civil court in many respects. They can punish the party if it does not obey the given orders. It has 37 sections in the consumer quotation act of which only 3-4 sections are applicable to a consumer e.g. who is a consumer, the jurisdiction of the particular court, definition goods and service and the deficiency of goods and services. The lowest court of appeal is the District Forum then the state commission followed by the National Commission. At the top is the Supreme Court.

·           The District Forum judge is the Forums president and is a retired district judge.

·           The state commission judge is a retired court judge and the one at the National Commission is a retired Supreme Court Judge.

·           The District Forum handles disputes of monetary value up to Rs. 5 lakhs.

·           The state commission handles cases with a monetary value above 5 lakhs and below 20 lakhs.

·           The National Commission handles cases above Rs. 20 lakhs.

ISO ((International Organization for Standardization (ISO))

ISO is a non-governmental organization. It is the world’s largest developer and publisher of International Standards. It is a network of national standards of 163 countries. ISO standards are voluntary. It has no legal authority to enforce the implementation of its standards. ISO standards are based in international consumers among. The experts in the field and its standards are renewed at regular intervals to decide whether. They should be maintained, updated or withdrawn.

ISO has more than 17,500 international standards. Its programmes range from standards for traditional activities such as agriculture and construction, mechanical engineering, manufacturing, distribution to transport, medical devices, and information and communication technologies to standards for good management practice and for services. ISO has a close relationship with WTO (World Trade Organization). It collaborates with the United Nations and its specialized agencies and commissions.

AGMARK

The sale of produce in a primary market takes place on the basis of the visual inspection of the goods, and in the secondary and terminal markets on the inspection of the samples. The buyer and the seller decide upon the terms either orally or through written contracts. The contract terms specify the quality and quantity of the produce, the time and place of delivery, the price and terms of payment, handling and incidental charges, the procedure for settlement of disputes and penalties. The terms of contract were not standardized and thus varied for every individual transaction, and were more favorable to the buyer. With a view to improving trade practices, All India standard contract terms have been drawn up for a number of commodities. In standard contract terms the definition of quality and allowances in respect of refraction, damaged goods have been specifically standardized. These standard contract terms by traders is voluntary they have to large extent strengthened the position of the producer-seller and have improved the quality of the product marketed.

Standardization and Grading: In order to gain the confidence and establish a rational relationship between the quality of a produce and its price, it is necessary to devote some attention to the proper preparation, sitting and sorting of a material. This is achieved by grading the produce in conformity with certain accepted quality standards via shape, size, form, weight and other physical and technical characteristics. The produce brought to the market is very often contaminated with dust, stones and other foreign matter added either deliberately or by accident. Such a produce brings a lower price to the farmers. Care should be exercised while assembling the produce of different farms so that the good material is not mixed the inferior material brought in by some farmers. The Government of India had recognized the need to introduce the standardization of agricultural produce. The act empowers the central government to prescribe grade standards indicating the quality of articles included in the schedule and specify grade designation marks to represent particular grades or qualities. The act provides for the grading and marketing of agricultural produce. The grade standards prescribed under this act are based on both physical and chemical characteristics and are formulated after analyzing representative samples of each commodity collected from different regions and different seasons. Besides the international standards and special requirements of overseas consumers are also taken into account while formulating these standards for the commodities which are exported. The grade standards are reviewed and amended from time to time in the light of the shift of the pattern of production and trade and changes in the consumers’ preferences. The grades are designated as the “AGMARK” grades.

Grading at Farmer’s Level: The grading of agricultural commodities under “AGMARK” has been consumer oriented. Generally the grading was done at the level of the traders. At this stage the producer was not a direct beneficiary of the grading scheme. It was felt the need to introduce grading at the produces level. Thus the directorate of marketing and inspection introduced a scheme for setting up commercial grading units.

Grading a fruits and vegetable products: With a view to exercising quality control over fruits and vegetables the government promulgated the fruits product order under the essential commodities Act. The preservatives and colors to be used are also clearly laid down.

Consumer Protection Act, 1986

It is an Act to provide protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlements of consumers’ disputes for matters connected therewith. This Act extends to the whole of India except the State of Jammu & Kashmir

Definitions

  1. Appropriate Laboratory: one that is recognized by the Central Government, State Government and one that is set up by or under any law and is maintained, financed or aided by the Central or State Government for carrying out analysis or tests of goods or find out if there is a defect.
  2. Complainant:
  1. A consumer or more consumers with same interest
  2. Any voluntary consumer associations
  3. Central Government or State Government
  4. In case of death of a consumer who has complained, the legal heir of representative
  5. Complaint: means any allegation in writing made by a complainant that
  1. An unfair trade practice or restrictive trade practice has been adopted by any trader or service provider
  2. That goods bought or agreed to be bought suffer from one or more defects
  3. The service hired or availed of or agreed to be hired or availed of suffer from deficiency
  4. The trader has charged for the goods a price in excess of the price fixed by law, or that marked on the package or a price agreed upon by both parties
  5. Goods are hazardous to life & safety when used are using offered for sale (if the trader knew of the danger)
  6. Consumer:
  1. Is a consumer who buys goods for a consideration or hires or avails of services and includes any user of such goods other than the person who buys such goods
  2. It does not include a person who avails of such services for any commercial purpose
  1. Consumer Dispute: means a dispute where the person against whom a complaint has been made, denies the allegations made in the complaint.
  2. Defect: means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required.
  3. Deficiency: means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required.
  4. Manufacturer: means a person who
  1. Makes or manufacturer any goods or parts thereof
  2. Does not make or manufacturer, any goods but assemble parts made by others
  3. Puts his own mark on any goods made by any other manufacturer

Drugs and Magical Remedies

This is an act to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. According to the Act “Magic Remedy” includes a talisman mantra, kavacha and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals.

This Act was enacted by the legislature because the increase in the number of objectionable advertisements relating to alleged cures for general diseases, sexual stimulants and alleged cures or diseases and conditions peculiar to women made the ignorant people take to self medication of harmful drugs. It was necessary in the public interest to put a stop to such undesirable advertisements. This legislation enacted by the center, was under the entry “Drugs and Poisons” and “Legal, Medical and other Professions” in the concurrent List.

It extends to the whole of India except Jammu & Kashmir

  1. Subject to the provisions of this Act, no person shall take part in the publication of any advertisement relating to a drug if the advertisement contains any matter which:
  • Directly or indirectly gives a false impression regarding the true character of the drug.
  • Makes a false claim for the drug.
  • Is otherwise false or misleading in any particulars.
  1. No person shall import into and export from India certain ads referred to section 3, 4 and 5 which has been prohibited.
  2. No person shall take any part in the publication of any advertisement referring to any drugs in terms which suggest or are calculated to lead to the use of that drug for:
  • The miscarriage in women or prevention of conception in women.
  • The maintenance or improvement of the capacity of human beings for sexual pleasures.
  • The correction of menstrual disorder in women.
  • The diagnosis, cure mitigation, treatment or prevention of any disease, disorder or condition specified in the schedule or which is specified in the rules.

Definitions

Drugs include:

  1. a medicine for the internal or external use of humans or animals
  2. any substance to be used for, or in the diagnosis, cure mitigation or prevention of any disease in humans or animals
  3. any astride, other than food, intended to affect the structure of any organic function of the body of human or animals

Social Benefits of Advertising

Advertising works wonders on the minds of the consumers that in the end influence a purchase of a product. Advertising has led to many social benefits that are as under:

Awareness

Advertising is one of the oldest ways of spreading awareness about new products. More than half the population, literate is very much aware of the new products in the market. All credits to advertising in different media from newspapers, radio to television. It is one method where messages to a large mass audience are done accurately & correctly without misguiding them through TV, Radio, newspaper, Internet, outdoor, etc. Advertising is possible in all kinds of language Hindi, Marathi, English or any other language. Advertising provides people with information that is very vital for purchase of goods & services available in the market; it allows them to decide what product will satisfy their needs & give them what they want. Advertising gives the people an idea of what exactly would suit their pockets & what would not. Basically, advertisements are made in a way that the consumer will have the curiosity to check & see the brand in the market himself. Advertisements lead to recognition & recall of brands that definitely helps advertisers. Advertising is significant because in consumer capitalism individuals depend on it for meanings a source of social information embedded in commodities that mediate interpersonal relations & personal identity.

Education

Advertisements are not based only on consumer durables but there are also advertisements that educate people like social service advertisement & public service advertisement. These are in the social interest of the people. E.g.: Anti-smoking campaigns, polio vaccinations, eye donations. All these advertisements educate children, teenagers & adults about the precautions that have to be taken to survive & be accepted in the society.

Earlier, due to lack of awareness, most of the AIDS patients were treated as untouchable but due to frequent awareness advertisements (like the one with Shabana Azmi, who is educating people about how sitting with AIDS patients is no harm) the attitude towards AIDS patients has changed & they are looked up with respect & considered normal along with dignity in society. The basic outlook of the people is changing due to advertisement be it in their choice of purchasing products or be it their attitude and thinking. Advertisements have and always will influence the minds of the people.

Culture

Advertising is an influential form of social communication. Advertising is not just a business expenditure undertaken in the hope of moving some merchandise off the store shelves but is rather an integral part of modern culture. Advertising should be conceived as an important institution in the consumer society because it produces patterned system of meaning which play a key role in individual socialization & social reproduction with globalization of the world economy. Multinational corporations often use the same advertising to sell to consumers around the world. Some critics argue that advertising messages are causing the world to become increasingly homogenous. Many advertising campaigns, however have universal appeal, overriding, cultural differences or they contributed to culture in a positive way.

Employment

Employment with the growth of advertising the need for man power is also increasingly. It’s not that only by advertising for jobs will a person be able to get a job but in the field of advertising itself there are so many departments & areas a person can explore that people from almost all fields have the opportunity to join and be a part of advertising.

Economy

It is believed that advertising has a positive impact on the economy because it stimulates demand for products & services strengthening the economy by promoting the sale of goods & services. Manufacturers know that advertising can help sell a new product quickly enabling them to recoup the cost of developing new products. By stimulating the development of new product, advertising helps increase competition. Many economists believe that increased competition leads to lower price there by benefiting consumer & the economy as a whole. These economists also argue that by interesting consumer in purchasing goods advertising enables manufacturers and others to sell their products in larger quantities. The increased volume of sales enables companies to produce individual units at lower price. Advertising thus benefits consumer by helping lower price. From all the points above what can be concluded is that the effects upon society brought about by advertising come in mixed forms, depending on the purpose & execution of various campaign. However, society, as we know, it is based very heavily upon advertising and the negative social and economic effects on our society. No one can predict what new form advertising may take in the future. Bu the rapidly increasing cost of acquiring new customer makes one thing certain. Advertisers will seek to hold on to current customers by forming closer relationship with them & by tailoring products, services & advertising messages to meet their individual needs. So while advertising will continue to encourage people to consume it will also help provide them with products & services more likely to satisfy their needs.

Advertising and Children

The world of children has changed a great deal over the last decade. Kids are no longer passive consumers of brands that they once used to be, but are active seekers and influencers for a whole range of products affecting their lives. While this is definitely true for products like chocolates, biscuits, ice-creams for which kids are the direct consumers it is also true for a whole other range of high-end consumables like packaged food, computers and believe it or not… cars! Kids are active seekers and influencers for a whole range of products affecting their lives.

It’s a given that the new generation of youngsters is an avid consumer of mass media, especially television. They watch TV with high involvement and more often than not easily led by what is shown on TV. They are increasingly vocal and influential when it comes to ‘Brand Choice’ and ‘Brand Purchase’. And this influence spreads to categories which may not be directly used by kids or products aimed at adult consumption (refrigerators, mobile phones, air conditioners, etc.) E.g.: salt ads, ads on spices, etc.

Advertisers are making their pitches to more and more younger audiences… ‘Catch them young’ seems to be the motto of the day.

Television ads for foods, toys or kitchen products teach children consumerism. They learn what products are available, what products do, and perhaps how to compare them.

Children learn how an item fits the lifestyle from cartoons, soap operas and serials. Thus children develop unrealistic ideas of how people live.

The variety and number of products targeted directly at young people have developed incredibility, from toys and clothes to music, magazines, TV channels and entertainment such as sports and electronic interactive media. Many companies focusing on children have realized that there is a need for redefining the generally accepted definition of childhood.

“Children are getting older beyond their years”, not least due to the dramatic advances in technology, but there are other aspects that make this target group even more important – also for manufacturer of products traditionally targeted at adults.

It is quite evident that today’s generation of children is more computer literate and advertising literate than ever. Equally, they are more brand literate.

Young people have an increasing influence on what their families purchase. Children are the ‘now’ generation. They may lack the so called sophistication of adults; act impulsively and without much rationale. However, advertising research demonstrates that any message that observes the basics of communicating with children in their own ‘Language’ will be registered, even at the very first showing.

Children do make demands on their parents to buy them things whose advertising they have been exposed to. Actions shoes had introduced kids’ shoes that had a light fitment which went on and off as one walked. Not a very persuasive communication but it had children pestering their parents to buy them that particular pair.

Children respond more positively to messages communicated visually rather than voice message. This is especially true among younger audiences, even up to the age of 10 or 12. Visual action is closer to their own play experience where actions speak louder than words. Television is a major form of entertainment. It is reported that children see almost 20,000 ads a year.

Children today are more exposed to media, are extremely brand as well as image conscious. To children, advertising is TV, when questioned about advertising, they invariably respond in terms of TV.

Also with age, TV starts playing a more important role in the kid’s like and the consumption of TV viewing also increases correspondingly. For most of the kids however, television advertising is an integral part of the entertainment that television provides.

Effects of Advertising on children

The impact of television on young children has received much attention. Research suggests that children see television advertising as just another form of programming and react uncritically to its messages, which makes them especially vulnerable to advertising.

Children clearly have an important role to play in the families purchase decision, but their contribution varies by product category. It I also reasonable to then say that since brand characteristics are variable, the impact of advertisements on children must also vary by brand.

Advertising affects children tremendously. Their young impressionable minds are influenced by the advertisements they are exposed to. This effect can be both positive as well as negative.

All tooth paste ads like Colgate, Pepsodent, etc. inculcate a good habit of brushing the teeth in the morning and at night before sleeping. They create awareness among the children regarding the ill effects of germs, weak gums, etc.

The Raymond advertisement

This advertisement shows depressed school student wishing good bye to their principal. Out of their respect and love for their principal, they buy him a Raymond cut piece. It influences the kids to give teachers the respect they deserve and love them for the knowledge they bestow upon us.

Thumps UP

Some years back, there was an advertisement for Thumps Up, which had a man standing at a cliff and performing ‘bungee jumping’ just to grab a bottle of Thumps Up from the crates lying in a truck below. A kid after watching this advertisement attempted a similar feat and jumped from the fifth floor of a building in imitation only to fall to his death. Due to this tragic accident, Thumps Up had to withdraw this advertisement.

Kwality Walls

Kwality Walls came with a series of double meaning advertisements with lines like ‘what’s on your stick?’ and the ‘the big F’. It showed a group of girls ragging few guys, where in extremely rude and vulgar behavior was displayed by the protagonist, with an all the more vulgar line ‘The Big F’. Several parents started complaining because they couldn’t handle questions by their kids as to enquiring what did the letter F stands for!

Clinic Shampoo

The Clinic Shampoo advertisement featured a girl child who is embarrassed because of her extremely lifeless hair. Is that the age when a kid should be worried about her looks and hair? Such advertisements make children grow older beyond their years and thus induce wrong attitudes and beliefs in them.

LG Golden Eye

LG colour TV advertisements showed a kid not going back home from school and standing outside a TV showroom just to watch TV because at home his mother doesn’t allow him to do the same. The mother is shown extremely tensed and scared with water in her eyes. The advertisement peddled on the platform of ‘good health’ and ‘good for eyes’. This advertisement indirectly conveyed that how the kids could watch TV unlimited for long hours, without spoiling their eyesight. Hence this advertisement influenced the child in a negative way. Also this was a very unimaginable ground to advertise for Television Sets.

Fair and Lovely Fairness Cream

Harping on the point that fair skin is appreciated and dusky skin not, such advertisements have created an extremely disappointing influence on adolescent girls. Many adolescent girls are unduly influenced by this standard of beauty and thus become dissatisfied with their own natural body colour. They then go out of their way to rectify this and end up landing themselves in depression and lack of self confidence.

Lizol

A child takes one of the biscuits and considers it as if it is a car, and takes the car (biscuit) through all possible places in the house. The biscuit passes through the dirty nooks and corners of the house like on the doormat, the toilet sink, etc. After his drive, the kid peacefully goes back and places the biscuit with the other biscuits on the plate from which he had picked it up.

This advertisement displays unaccepted behavior of the part of the kid. The children, ever inquisitive, are intrigued by certain provocative advertisements. Since they partially understand by the connotation and want to find out more about advertisements of sanitary napkins and want to find out more about advertisements of sanitary napkins and want to know why the girls wear skimpy clothes and why their sisters and mothers don’t wear similar type of clothes. These posers from the kids cause great problems for the parents.

The exposure to the violent content of TV programmes affect children’s attitudes behavior. People flying, turning into monsters, eating weird things coming back from the grave are fantasies that children have difficulty in distinguishing from reality celebrities have a great impact on kids. Ads with free gifts make children force their mothers to buy the product even if it is no use to them.

The all out assault on children’s senses and values have escalated dramatically. Children are the largest and fastest growing market for consumption. Even car companies know that children influence their parents’ choice of automobiles, so they pitch their ads to be attractive to kids.

Kids are becoming incredibly consumerist and influence family spending decisions. Children now share one thing in common – a growing in satiable desire for material goods.

However, there are those who argue that advertising is a part of life and children must learn to deal with in the consumer socialization process of acquiring the skills needed to function in the market place. They say the existing restrictions are adequate for controlling children’s advertising. They argue that adolescents develop skeptical attitudes towards advertising through interactions with socialization agents such as parents and peers. Market place knowledge, they claim plays an important role in the children as this knowledge helps them to evaluate ads and make them recognize the persuasion techniques used by advertisers.

Women in India

The role of women in our society has changed in the last few decades. The traditional role of women cannot be accepted now. Women are playing a diversified role on the socio-economic context in our society. Women are emerging as a powerful influence group.

Women are shown as objects of sexuality. The idea of the male gaze becomes the universal advertising strategy. Since men are the main purchasing power of India today the image of a sanctity lad woman will make them buy anything.

1.     Women are being portrayed as sex objects. Women were shown as the weaker sex always by her man’s side. Not only are women being used as sex objects they are being used in relation to negative products as alcohol & drugs.

2.     Ads show that women’s place is in the home, women are dependent on men, and women do not make independent and important decisions. The household image of women is truly exploitive showing woman as an unattractive housewife who slaves for her family without any ambition is enslaving.

The “Axe” ad shows a man in an elevator applying Axe body spray as he leaves the elevator. A less attractive man enters the elevator along with a beautiful woman. With the smell of the body spray still lingering it becomes a very powerful aphrodisiac and the woman becomes aroused. The next scene shows them coming out of the lift insinuating some kind of sexual experience. The ad implies that a body spray can make the sexual availability of women easy.

Then came the category of women at work but even these were in romantic settings. These ads conversed that working women receive more masculine attention and have a better time. Ads showed how to become more appealing to men to gain popularity and who to become more sexually active, all to sell a product. The idea of the male gaze becomes significant.

The upper middle or middle Hindu patriarchal morality is seen as normal. Any deviation from this is frowned upon. Some critics say that men say they are redefining women’s liberty and modernity but end up highlighting & reinforcing the prejudices of upper caste males.

The upper caste or class Hinduism is repeatedly represented as “The only good” and powerful way of living in order to be a decent and patriotic Indian citizen.

Woman in earlier ads was docile with an expression of down turned face fully dad in sari with big vermillion and flowers or a vamp in short indecent attire with a sensuous gaze, a pouting smile without vermillion and flowers.

The modern woman is now shown without vermillion affirming her sensuality, no longer wearing a sari. But her societal status has not changed in any drastic way as her roles are defined even now by men. Washing machine microwave ovens liberate Indian women by moulding them into perfect homemakers. (e.g.: you and Videocon – the perfect homemaker).

Portrayal of women in media has changed in some ways and not in others. The old stereotypes (housewife, girlfriend, sex object, decorative object) are still with is modified and diluted.

The emerging new stereotypes are due to changes in the social, economic, political, scenario, trends in liberalization / globalization and the rise of consumerism can be seen as the emerging new Indian women the beauty queens, models, VJ & women’s entrepreneurs.

Besides these there are a great number of serial which stress on women in roles of the perfect housewife dominated by her husband and a vamp. These shows portray old time values & morals trying to bring back the trend of the male dominated society.

Copyright

In ancient days creative persons like artists, musicians and writers made, composed or wrote their works for fame and recognition rather than to earn a living, thus, the question of copyright never arose. The importance of copyright was recognized only after the invention of printing press which enabled the reproduction of books in large quantity. In India first legislation of its kind, the Indian Copyright Act was passed in 1914 which was mainly based on the UK Copyright Act, 1911.

During the last four decades modern and advanced means of communications like broadcasting, litho0photography, television, etc. have made inroads in the Indian economy with the result that it became essential to fulfill international obligations in the field of copyright. This necessitated that a comprehensive legislation may be introduced to completely revise the copyright law. To this effect a Copyright Bill, 1957 was introduced in the Parliament.

It introduced several new features which are briefly indicated below:

  1. A Copyright Office is sought to be established under the immediate control of a Registrar of Copyrights who shall act under the superintendence and direction of the Central Government. The principal function of the Copyright Office will be to maintain Register of Copyrights in which may be entered, at the option of the authors, the names and addresses of authors and owners of copyright for the time being, and other relevant particulars. Such a Register will easily make available useful information to interested members of pubic in regard to copyrighted works.

In order to encourage registration of copyrights, provision is made that no proceeding regarding infringement of copyright shall be instituted unless copyright is registered in the Copyright Office. In addition to being in charge of the Copyright Office, the duties of the Registrar of Copyrights will be to entertain and dispose of applications for compulsory licenses and to inquire into complaints of importation of infringing copies. An appeal to the Copyright Board is provided for against the orders of the Registrar of Copyrights.

  1. Provision is made for setting up a Copyright Board which will determine the reasonableness of the rates of fees, charges or royalties claimed by performing rights societies, consider applications for general licenses for public performances of works and will assess compensation payable under the Bill in certain circumstances. An appeal can be made to the High Court against the decisions of the Copyright Board.
  2. The definition of “copyright” is enlarged to include the exclusive right to communicate works by radio-diffusion.

A cinematograph film will have a separate copyright apart from its various components, namely, story, music, etc.

  1. An author assigning copyright in his work is allowed the option to re-acquire the copyright after seven years but before ten years of the assignment on the condition that he returns the amount received by him at the time of the assignment with interest thereon.
  2. The normal term of the copyright is fixed to be the life of the author and a period of 25 years after his death as against the existing term of the life of the author, and a period of 50 years after his death. Shorter terms are fixed for anonymous or pseudonymous works, cinematograph films, mechanical contrivances, photographs, etc.
  3. Under the existing law, the sole right to produce a translation of a work first published in India is extinguished after ten years, unless a translation thereof is produced within that period. The Draft Bill makes the right co-extensive with other rights arising out of copyright.
  4. Provision is made for the issue of a general or special license for public performances of any work by means of a radio-receiving set or a mechanical contrivance.
  5. A license may be issued to any library to make or cause to be made one copy of any book in which copyright subsists and which is not available for sale.
  6. Provision is made for regulating the activities of performing rights societies and also for controlling the fees, charges and royalties to be collected by them.
  7. Certain rights akin to copyright are conferred on broadcasting authorities in respect of programmes broadcast by them.
  8. International copyright relations which are based on international treaties will be regulated by specific orders to be made by the Central Government.
  9. A fair dealing with any work for the purposes of radio summary or judicial proceeding will not hereafter constitute an infringement of copyright.

List of Amending Acts:

  • The Copyright (Amendment) Act, 1983 (23 of 1983) (w.e.f. 9-8-1984)
  • The Copyright (Amendment) Act, 1984 (65 of 1984) (w.e.f. 8-10-1984)
  • The Copyright (Amendment) Act, 1992 (13 of 1992) (w.e.f. 28-12-1991)
  • The Copyright (Amendment) Act, 1994 (38 of 1994) (w.e.f. 10-5-1995)
  • The Copyright (Amendment) Act, 1999 (49 of 1999) (w.e.f. 15-1-2000)

It extends to the whole of India.

  1. Adaptation means –
  1. In relation to a dramatic work, the conversion of the work into a non-dramatic work.
  2. In relation to a literary work or an artistic work, the conversions of the work into a dramatic work by way of performance in public or otherwise.
  3. In relation to literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspapers, magazine or similar periodical.
  4. In relation to a musical work, any use of such work involving its arrangement or alteration.
  1. “Work of architecture” means any building or structure having as artistic character or design, or any model for such building or structure.
  2. “Artistic work” means –
  1. A painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality.
  2. A (work of architecture).
  3. Any other work of artistic craftsmanship.
  4. “Author” means –
  1. In relation to a literary or dramatic work, the author of the work
  2. In relation to a musical work, the composer
  3. In relation to an artistic work other than a photograph, the artist
  4. In relation to a photograph, the person taking the photograph
  5. In relation to a cinematograph film or sound recording, the producer
  6. In relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created
  7. “Broadcast” means communication to the public –
  1. By any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images
  2. By wire and includes a re-broadcast
  1. “Calendar year” means the year commencing on the 1st day of January.
  2. “Cinematograph film” means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and induced a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films.
  3. “Communication to the public” means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.
  4. “Infringing copy” means –
  1. In relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film
  2. In relation to a cinematograph film, a copy of the film made on any medium by any means
  3. In relation to a sound recording, any other recording embodying the same sound recording, made by any means
  4. In relation to a programme or performance in which such a broadcast reproduction right or a performer’s right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance.

If such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act.

Copyright Office & Copyright Board

  • Copyright Office: The Copyright Office shall be under the immediate control of the Registrar of Copyrights and may appoint one or more Deputy Registrars of Copyrights.
  • Registrar and Deputy Registrars of Copyrights: The Central Government shall appoint a Registrar of Copyrights and may appoint one or more Deputy Registrars of Copyrights.
  • Copyright Board: The Central Government shall constitute a Board to be called the Copyright Board which shall consist of a Chairman and may appoint one or more than (fourteen) other members.

Works in which copyright subsists:

  1. Original literary, dramatic, musical and artistic works
  2. Cinematograph films
  3. Sound recording

Copyright shall not subsist: in any cinematograph film is a substantial part of the films is an infringement of the copyright in any other work.

Case study 1: Common properties are not the subject of copyright

No doubt the central theme of the articles published by the second plaintiff and that of the drama and movie is the same, though the emphasis in the drama and the movie is more on human bondage, particularly of Indian women. The articles published by Ashwini Sarin also contain an autobiographical account of the part actually played by him in the affair. He has presented the whole affair in his own style. But that at the most would give the plaintiff copyright in respect of these articles. There cannot, however, be a copyright in an event which has actually taken place. There is a distinction between the materials upon which one claiming copyright has worked and the product of the application of his skill, judgment, labor and literary talent to these materials. Ideas, information, natural phenomenon and events on which an author expends his skill, labor capital, judgment and literary talent are common property and are not the subject or copyright; Indian Express Newspapers (Bombay) Pvt. Ltd. V. Dr. Jogmohan Mundhara, AIR 1985 Bom 229.

Case study 2: No ownership in case of mere ‘idea’

A person may have a brilliant idea for a story, or for a picture, or for a play, and one which, so far as he is concerned, appears to be original, but, if he communicates that idea to an author or a play writer or an artist, the production which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in a form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in the product: Donoghue V, Allied Newspaper Ltd., (1937) 3 ChD 503.

Case study 3: Producer can defeat rights of music composer or lyricist

The core of the question, whether the producer of a cinematograph film can defeat the right of the composer of music or lyricist by engaging him; the key to the solution of this question lies in the provisions (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisions, viz., proviso (b), when a cinematograph film producer commissions a composer of music or a lyricist for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefore i.e.: the sounds for incorporation or absorption in the sound track associated with the film, which is already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other.

The Patents Act 1970

It extends to the whole of India. Person who can apply for patents:

  1. Is the first inventor of the invention
  2. Is any person being an assignee of the person who claims to be the first invention
  3. Is any representative of any deceased person who immediately, before his death was entitled to make such an application

Application has to be for one invention only and has to be made in the prescribed form and filed in the patent office. When a provisional application is made, a complete specification has to be filed within 12 months otherwise the application is deemed to be abandoned. Every International application under the Patent Co-operation Treaty for a patent may be filed designating India only if a corresponding application has also to be filed before the Controller in India. The date of filing in both the places has to be same.

The controller can ask for any details relating to the processing of the application of a patent outside India:

  • No resident to apply for patent outside India without prior permission
  • The controller has the power to decide on matters of infringement if any.

Advertising and Children

Vance Packard characterized children as ‘consumer trainees’. Eager minds could be moulded to want your products. The potency of television in conditioning youngsters to be loyal enthusiasts of a product began in the 1950. Ads aimed at children not only, as future consumers, but as ones who lead their parents into the salesroom.

Motivational analysts were called by ad men to provide insights on the most effective way to achieve as assured strong impact with children. Guide posts given by social research was that a show can appeal to a child without offering the child amusement or pleasure. It will appeal is it helps him express his inner tensions and fantasies in a manageable way, if it offers the child a way to get rid of his fear, anger or befuddlement, the basic pattern of good guys versus bad men. The good guys were all young men and villains were old men who might be ‘symbolic or father figures.’ To children adults are a ruling class against which they cannot successfully revolt.

Self- Regulation

Early in the 20th centaury before the advertising industry became well organized, the sharp and unethical practice of some advertisers prompted the rise of self regulation to avoid state controls. Self imposed code of ethics and procedures aim principally to curtail not only bad taste but also misinterpretation and deception as well as derogatory and unfair representation of products of competitors.

Advertising and trade associations are concerned with maintaining high standards. The associations feel that it helps in maintaining good public relations.

Individual media and media groups often establish their own code of ethics. Some news papers and magazines refuse to publish advertisements for tobacco and alcohol products. Most of them in varying degrees, investigate the rehability of the advertisers before accepting their copy. Some advertisers have strict rules about the presentation of advertising to prevent publication of false or exaggerated claims to prevent aesthetic tone of their publications.

Television and radio likewise cooperate to avoid permitting advertising that may cause unfavorable reactions.

Statutory Laws in India

All those engaged in advertising are recommended to be familiar with the legislation affecting advertising in India:

I) Young Person (Harmful Publications) Act 1956:

(a) “Harmful publication” means any book, magazine, pamphlet, leaflet, newspaper) or other like publication which consists of stories told with the aid of pictures or without the aid of pictures or wholly in pictures, being stories portraying wholly or mainly-

(i) The commission of offences; or

(ii) Acts of violence or cruelty; or

(iii) Incidents of repulsive or horrible nature; in such way that the publication as a whole would tend to corrupt a young person into whose hands it might fall, whether by inciting or encouraging him to commit offences or acts of violence or cruelty or in any other manner whatsoever;

(b) “State Government” in relation to a-Union Territory, means the administrator thereof,

(c) “Young person” means a person under the age of twenty years.

II) Prize Competition Act 1955:

Provides for control and regulation of prize competitions. It prohibits the prize competition where the prize offered exceeds One Thousand rupees a month. It also provides for licensing of prize of prize competition where the prize offered exceeds one thousand rupees. The Act states that a newspaper or any other publication should adhere to the provisions of the act, state the name of the state government under whose control such lotteries will be conducted and the tax and other conditions that apply with the scheme.

III) Emblems and Names (Prevention of Improper Use) Act 1950:

Prohibits improper use of 1) the name, official seal of United Nations, WHO, International Civil Aviation, UNESCO, International Atomic Energy. (2) The Indian National Flag, The name and emblems or official seal of Government of India, Government of State, Supreme Court, High Court, Parliament House, State legislatures, The name and pictorial representation and the seal of The President and The Prime Minister of India. (3) The pictorial representation of medals and decorations of Ashok Chakra, Param Veer Chakra etc. The Government from time to time specifies the terms and conditions about the publication and reproduction of these Emblems and Names, with the prescribed fees and the validity of the periods etc.

IV) Trade and Merchandise Marks Act 1958:

The law relating to trade marks in India is contained in the Trade and Merchandise Act of 1958. A Trade Mark is a mark used or proposed to be used in relation to goods for the purpose of indicating or so to indicate a connection in the course of trade between the goods and the and some person having the right either as proprietor or a registered user with or without using the identity of the person and a mark includes a device, brand, heading, label, signature, work, letter or any combination there of. Registration of Trade Mark generally gives the registered proprietor exclusive use of the mark, so that any unauthorized use will amount to infringement. Infringement shall attract both civil and criminal liabilities.

V) Drugs and Magical Remedies (Objectionable Advertisements) Act 1954:

Advertisement – notice, circulars, label, wrapper or other document, any announcement made orally, or by means of producing or transmitting light, sound or smoke.

U/s 3 of the act deals that the advertisement carried out should state Scheduled Warnings of the drugs in use for eg: To be taken under physicians instructions, Dosages as prescribed by the doctor etc.

Section 4 prohibits misleading advertisement relating to drugs. Subject to the provision of this act, no person shall take part in publication of any advertisement relating to a drug if the advertisement contains any matter which (a) directly or indirectly gives false impression regarding the true character of the drug, or (b) makes false claim of the drug, or (c) is otherwise false and misleading in any particular manner.

VI) Tortious Liability:

If the Advertisement is libelous the agency, which placed it, will be liable, even though its client supplied the copy of it, because it caused the advertisement to appear in the media and the media will also be responsible because they printed and published the libel. All parties leading to the publication shall be liable to legal actions.

VII) Indecent Representation of Women (Prohibition) Act 1986:

Prohibition of advertisement containing indecent representation of women. No person shall publish or cause to publish or arrange to take part in publication of advertisement, which contains indecent representation of women.

Penalty – Contravention of section 3 & 4 shall attract imprisonment of 3 years and a fine which may extend to Rs.20, 000/-, on second conviction with imprisonment which may extend to 6 months but which may extend to 5 years and a fine which may be not less than Rs.1 lack and which may extend to Rs.2lakhs.

VIII) Prevention of Food Adulteration:

Every packed material of food items should contain MRP & Date of Manufacture, Weight of the food items, batch no if any and the date of expiry of the item.

It should also carry the handling instructions, the quality and purity of the items.

IX) Pre- Natal Diagnostic Techniques (Regulations and prevention of Misuse) Act 1994.

Prohibition of Advertisement relating to pre natal determination of sex and punishment and contravention:

No Person Organization, Genetic, Counseling Center, genetic labs, clinics shall issue any advertisement in any manner regarding facilities of pre-natal determination of sex is available with them.

Penalties shall be punishable with imprisonment, which may extend to 3years, cancellation of license of the clinic and suspension of certificate of practice of the physician and surgeon for a period of 2 years.

X) Companies Act 1956:

All Companies desiring to invite from Public in the form money any deposit or subscription in their shares and debentures shall issue a prospectus, which carries the risk perception expected by the company in carrying out or completion of the project.

Advertising (Criticism)

Advertising has been attacked by critics who charge that it goes beyond selling products or ideas to exert a powerful influence on society. According to this view, advertising in its many forms is so pervasive and so persuasive that it has the ability to shape social trends and mold personal attitudes. This influence is unwanted, intrusive and often detrimental to society, say critics. Defenders respond that, in addition to the economic benefits to improved competition, lower prices and more product choices, advertising promotes freedom of speech, as goods and services. Furthermore, advertising is actually influenced by society because it acts as a mirror in reflecting certain societal changes. For example, advertising must continually adjust their language and illustrations to conform to changes in socially acceptable practices.

This ongoing debate over the proper role of advertising in society is entirely separate from the ethical issues of deceptive or fraudulent advertising and it boils down to one basic question: Does advertising help or hurt society?

Language and Literacy

Advertising sometimes twists words or changes spelling and grammar to make a point. Advertising copy is accused of playing fast and loose with the rules of language, which encourages the audience to do the same. Some critics go further, complaining that people have less need for readily available in the electronic media both by advertising and by sponsoring news and entertainment programs. Why do ads bend grammar and use slang? Sometimes it’s to avoid sounding stilted, sometimes it’s for emphasis and sometimes it’s to sound like the people you want to reach. “There’s no real intent to damage the language.” When advertisers want to reach teenagers they try to adopt teenage speech patterns, advertisers often use unorthodox spelling so a word can be used as a legal part of a brand name as a trademark.

Manipulation and Exploitation

Does advertising manipulate people into buying what they don’t need? Critics contend that advertising is so powerful and persuasive that people have no choice but to buy what they see advertised, regardless of their actual need for these products. Advertisers exploit our inadequacies, anxieties, hopes and fears. Advertisers, using psychological or emotional appeals, get us to buy their products by making us feel that these products help us gain status, acceptance, even love.

On the other side of the controversy, defenders acknowledge that the whole reason to advertise is to persuade. There’s no magic or dishonesty about using the marketing mix to identify customer needs, to create an appropriate product and to advertise the product. Defenders contend the advertising offers people the information they need to choose among products in the marketplace. Advertising can be seen as building consumption not by making people purchase what they don’t need but by making the market more efficient for both consumer and producers by offering information about the product, its availability.

No amount of advertising pressure can force people to buy something they don’t want and anyone who is persuaded by advertising to buy a bad product (or a product that doesn’t meet a legitimate need) won’t make that mistake again. Far from being helpless to resist advertising’s persuasive power people are able to ignore or discount advertising messages, by zapping television commercials, turning down the radio, or simply turning the page in a magazine or newspaper. Most consumer are savvy about what they see advertised and research indicates that children understand and are skeptical about advertising’s persuasive power.

Advertising Old People and Minority Groups

Critics say that ads often portray entire group of people in stereotypical ways showing elderly people only as senile for example. These advertising can reinforce negative or undesirable views of these groups. This can contribute to discrimination against them. By presenting minorities and women more realistically, advertisers can significantly expand their markets for a wide variety of products. The situation is slowly changing as minority group’s protest against stereotypes. However, showing more minority groups is only half the answer. The other half, perhaps more difficult, is to make their portrayal realistic.

Advertising is a waste of money

There is a feeling among some that advertising is blatant, uneconomic and antisocial. It makes people buy more than they need it, encourages consumption of liquor and cigarettes; it is the cause of violence, murder, etc.

The money that is spent on advertising is considered a waste. This amount, it is felt, can be used effectively in other ways. Models are paid lakhs and crores of rupees (Amitabh Bachchan, Sachin Tendulkar, etc.) Ads on products that do not sell are also wanted. However, in all areas of work, failure and superfluous expenditure is there in almost all activities.

Whether advertising is a social waste is difficult to interpret. Allegations of social waste are based on statements as:

·       Ads make false statements which confuse & mislead

·       Ads force customers to want goods & services that are not needed

·       Ads promote products which are harmful

·       Ads are forced on consumers (TV ads)

With reference to the statement that ads mislead and make false statement it may be said most statements are true to a large extent. Yes, ads exaggerate but again consumers are not fools. Products are not brought only for its product attributes; it is bought for prestige (car), hope of a beautiful appearance, people want to look better, eat better, live better, drive better cars & improve their standard of living. Products may satisfy entirely or partially the wants of society. Persuasion is used not only in advertising but also in sermons for preachers, lecturer and even directives from government.

The second criticism is that ads make people buy what they cannot afford. Ads cannot move people in the direction which are contrary to social trends. Products are produced after market research to find out what people want, what is the demand. When people decide against the use of product no amount of advertising can make them buy the product. IF advertising can make consumers buy products there will be no product failure.

Advertising promote products harmful to citizens

There is a lot of legislation preventing the promotion and sale of harmful products. Cigarettes are harmful but smoke is more harmful. Liquor is dangerous and immoral according to critics. Attempts to abolish ads on these products only result in more use and illicit trade in such products. No product causes more death than automobiles. Is that immortal and should its production be banned?

Advertising is lacking in good taste

Some ads (Harpic ad) are irritating. If the public is offended, the advertisers find out through decreases in sales or news reports and that situation are rectified.

Advertiser’s job is to communicate. Some advertisers are aesthetic and more sensitive than others.

Ads are forced on TV viewers

The viewers are under no obligation to see the commercials. TV programmes cost money. If ads are not shown the programmes have to be made at government expense and the tax payer will have to pay additional taxes.

Does advertising result in a better standard of living? Advertising has indeed made considerable contribution to a better standard of living with many other factors like our productive economic system. It has resulted in a dynamic expanding economy. Today’s economy is geared to a high level of consumption and production level. If employments are to be maintained and the economy has to grow, consumers will have to maintain the standard of living.

Advertising places an undue stress on material things

With the role of advertising to maintain a high standard of living, it is obvious that advertising does stress to a considerable extent the consumption of material goods. Does this mean that less stress is placed on people’s cultural and spiritual needs? Is there a decline in cultural and spiritual fields because of advertising? Has interest in literature, music, painting, sculpture theatre, creative pursuits, efforts on the poor and the less fortunate in our society less because of advertising? In fact a decent standard of living is a prerequisite to a general interest in cultural activities. Both material goods and cultural activities are compatible.

If the cultural & spiritual life is not as high as critics feel it should be, is advertising to be alarmed?

Advertising forces people to buy goods they do not need

It is true that many products can be grouped as not necessary at present. However many products that are luxuries become necessities for a reasonable standard of living. Who is to decide that a particular item is not, the critics or the government? The freedom of choice cannot be taken away from people.

Critics are the loudest in wanting freedom of speech. Advertising, as long as it does not violate standards of good taste, ethics, etc. is one form of freedom of speech.

Social Responsibilities of Advertising:

Advertising is a dynamic social forum where business interest, creativity, consumer needs and

Government regulations meet.

The high visibility of advertising makes it vulnerable to criticism. The role of advertising is to inform the consumer the highlight of the products, giving complete details of the characteristic of the products and leave it to consumer to buy the product or not. The advertisement should not persuade the consumer to buy the product at any cost, by manipulating their minds.

The visibility of advertisement is so enormous now days that there is a tendency to go overdrive and confuse the minds of the consumers. However it is worthwhile to be aware of the social responsibility of advertising that it requires a balance between the public welfare, the interest of the manufacture to sell their products and also freedom of speech.

It is also expected of advertising to be neutral in persuading the consumer to buy their products by giving all the attributes of the products. They are also required to maintain and follow the code of ethics stipulated by the Regulators like ASCI, AAAI and PCI.

The Standards of Weights and Measures Act, 1956

The Standards of Weights and Measures Act, 1956 was the first enactment by which the uniform standards of weights and measures, based on the metric system were established. The standards established by the 1956 Act were based on the international system of units.

Standards of weights and measures were subsequently revised by having regard to the rapid advances made in the fields of science and technology and a practical system of units of weights and measures, suitable for adoption for all the signatories to the Metro Convention was evolved. This practical system of weights and measures was given the name “Le System International d’Units” (with its international abbreviation “SI”).

In view of the revision the Central Government constituted a Committee to consider what changes are required to be made in 1956. The Committee suggested the replacement of the 1956 Act by a comprehensive legislation on the subject.

The Standards of Weights and Measures Act, 1976

An Act to establish standards of weights and measures, to regulate inter-State trade or commerce in weights, measures and other goods which are sold or distributed by weights, measure or number, and to provide for matters connected therewith or incidental thereto.

It extends to the whole of India. It applies to commodities in packaged from which are sold, distributed or offered or displayed for sale.

Standard Units

Units of weight or measure to be based on metric system:

·       Base unit of length shall be metre.

·       Base unit of mass shall be the kilogram.

·       Base unit of electric current shall be the ampere.

·       Base unit thermodynamic temperature shall be the Kelvin.

·       Zero degrees Celsius corresponds to 273.15 Kelvin.

·       Base unit of luminous intensity shall be the candela.

·       Base unit of amount of substance shall be the mole.

·       Base unit of numeration shall be the unit of international form of Indian numerals, in accordance with the decimal system.

·       Use of non-standard weight or measure prohibited.

·       Manufacture of non-standard weight or measure prohibited.

·       No weight, measure or other goods shall bear thereon any inscription or weight, measure or number except in accordance with the standard unit of such weight, measure or numeration established by or under this Act:

The Central Government shall keep in its custody, for the purposes of this Act, such number of reference standards as may be necessary. The Act envisages the appointments of Controller and Inspectors of Weights and Measures in the States. The Central Government with the consent of State Governments is empowered to delegate some of the powers may be sub-delegated by the Controller of Legal Metrology in the States. These powers may be sub-delegated by the Controller to other officers not being less than the rank of an Inspector.

Where any goods seized are subject to speedy or natural decay, the Director or the authorized person may dispose of such goods in such manner as may be prescribed. Forfeiture. Every false or unverified weight or measure, and every false package shall be liable to be forfeited to the Central Government. Any custom, usage, etc. contrary to standard weight, measure or numeration to be void, manufacturers, etc., to maintain records and registers.

Inter State Trade or Commerce

Quantities and origin of commodities in packaged form to be declared:

No person shall –

·       Make, manufacture, pack, sell or cause to be packed or sold

·       Distribute, deliver

·       Offer, expose or possess for sale,

any commodity in a packaged form to which this Part applies unless such package bears thereon or on a label securely attached thereto a definite, plain and conspicuous declaration made in the prescribed manner, of:

1.     The identity

2.     The net quantity

3.     Where the commodity is packaged or sold by number, the accurate number of the commodity contained in the package

4.     The unit sale price of the commodity in the package

5.     The sale price of the package

Verification and Stamping of Weights and Measures sent from One State to Another

When any weight or measure sent from a transfer State for delivery and it is not required to be dismantled before its dispatch, it shall be known as a weights or measure of the first category.

If it is required to be dismantled before its dispatch to the Transferee State, it shall be known as a weight or measure of second category.

Weight or measure, whether of the first or of the second category, shall be verified and stamped unless fees for such verification and stamping have been paid in accordance with the scales specified.

Weight or measure of first category is not to be sold or used in any State unless it is stamped in the Transferor State.

Weights or measures of the second category received from Transferor State to be produced before the local inspector of the Transferee State, and the Transferee State shall verify every weight or measure to any other State to submit return to the Controller. Persons exporting or importing any weight or measure to get themselves registered. No dealer or manufacturer shall export or import any weight or measure unless he us registered.

The following rules were established after the weights and measures Act 1976:

1.     The Standards of Weights and Measures (Packaged Commodities) Rules 1977.

2.     The Standards of Weights and Measured Tenders of Weights and Measures (Approval of Model Rules), 1987.

The list of recognized laboratories shall be notified from time to time. When an application is made for the recognition of a laboratory, the Director shall, send one or more of his officers to the laboratory and obtain a report whether the laboratory:

·       Has the necessary measuring equipment

·       Has the necessary qualified staff

·       Is situated in an appropriate environment

·       Has an adequate recording system

·       Is likely to give expeditions, efficient and adequate service

·       Is ready and willing to get its equipment verified periodically

Whether they have the certificate issued by the National Accreditation Board of Laboratories (NABL)

3.     The Standards of Weights and Measures (Numeration) Rules, 1987

4.     The Standards of Weights and Measures (Inter-State Verification and Stamping)

5.     The Standards of Weights and Measures (Enforcement) Act, 1985

Definitions

1.         Batch: Packages where the total number of such packages does not exceed 100 & packages more than 100 but less than 10,000 of the same type & same production run combination packages.

2.         Dealers: A person, a firm buying, selling, supplying, distributing for cash or deferred payment.

3.         Drained Weight: Refers to a solid commodity contained in a free throwing liquid means the weight of solid commodity after the liquid has been drained for 2 minutes.

4.         Group Package: Package containing similar packaging of different brands.

5.         Manufacturer: One who makes the product & also one who puts the mark on the packaged commodity although not made by him.

6.         Maximum Permissible Error: Given in case of commodities in schedule I & II.

7.         Multiprice Package: One or more packaging of same product of identical quality. E.g.: toilet soap, net weight 10g each total net weight 100gm.

8.         Packer: Person who prepacks any commodity.

Declaration to be made on every package

·       Name, address of the manufacturers and if the manufacturers is not the packer, he name & address of both have to be given.

·       Every package shall have a local security affixed.

·       The common name of the commodity contained in the pack.

·       The net quantity in terms of standard unit of weight or the number of the commodity in the package.

·       The month & year it is manufactured or prepacked.

·       The dimension of the commodity when relevant.

·       Other matters as specified in the rules. No declaration as to month or year on package containing bidees and incense stick.

·       Bottles containing liquid milk, soft drinks, etc. which is returnable for refill.

·       Liquid milk in pouches.

·       Package with metal products.

·       LPG.

·       Chemical fertilizer. No declaration of retail sale price.

·       Veg., fruit, fish, meat.

·       Bottle containing liquid milk, beverages with milk ingredient returned for refill package containing animal feed more than 15 litres.

·       Package containing printing matter.

The height of the letter, the size, width is specified details required should be legible, prominent, definite plain & clear. Authorized person takes positive action in accordance with the provisions of the old against the manufacture or packers as the case may be.

ü  Before taking any action the authorized person shall size the package as a sample to produce as evidence.

ü  The disposal of package is done as per the code of criminal procedure.

 The Drugs and Cosmetics Act 1940:

An act to regulate the import, manufacture, distribution and sale of drugs and cosmetics.

It extends to whole of India.

Chapter III and Chapter IV is an important schedule under this Act.

Chapter III shall apply to entire India and Chapter IV shall apply to State only.

Chapter II shall apply to state of Jammu and Kashmir.

Important Definitions:

Drugs:

a)     All medicines for internal or external use of human beings or animals and all substances intended to be used for the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals including preparations applied on human being.

b)     Such substances, intended to affect the structure or any function of human or animal body or intended to be used for the destruction of vermin or insects which cause disease in humans and animals as specified from time to time by the Government by the notification in the official gazette.

Formulation: means a medicine processed out of, or containing one or more bulk drug or drugs with or without the use of any pharmaceutical aids, for internal or external use for in diagnosis, treatment, mitigation or prevention of disease in human being or animals but shall not include

i)                any medicine included in any loss bona fide Ayurvedic (including Sidha) or Unani (Tibb) system of medicine.

ii)              Any medicine included in the Homeopathic systems of medicine and

iii)             Any substance in which the provision of Drugs and Cosmetics Act shall apply.

Government Analyst:

The government shall appoint from time to time authorized labs to test the purity, quality and the potency of the drugs and cosmetics applications.

Penalties:

Penalty for use of Government Analyst report for advertising.

Whosever uses any report of a test or analysis made by the Central Drugs Laboratory or by a government analyst or any extract from such report for the purpose of advertising any drug (or cosmetic) shall be punishable with a fine which may extend to Rs.500/-.

The Essential Commodities Act 1955

This is an Act to provide, in the interest of the general public, for the control of the production, supply and distribution of and trade on commerce in certain commodities. It extends to whole of India.

1.     “Essential commodity” means –

·       Cattle fodder, including oilcakes and other concentrates

·       Coal including coke and other derivatives

·       Component parts and accessories of automobiles

·       Drugs

·       Foodstuff, including edible oilseeds and oils

·       Iron and steel, including manufactured products of iron and steel

·       Paper, including newsprint, paperboard and straw board

·       Petroleum and petroleum products

·       Raw cotton, whether ginned or unginned, and cotton seed

·       Raw jute

·       Any other class of commodity which the central Government may, by notified order, declare to be an essential commodity

2.     “Food-crops” include crops of sugarcane.

3.     “Sugar” means –

·       Any form of sugar containing more than ninety percent of sucrose, including sugar candy

·       Khandsari sugar

·       Sugar in process in vacuum, pan sugar factory or raw sugar produced there in

Tea is not foodstuff

In common parlance “food” is something that is eaten. In wider sense “food” may include not only solid substances but also a drink. Still the fact remains that the substance called “food” should possess the quality to maintain life and its growth, nutritive or nourishing value so as to enable the growth, repair or maintenance of the body. Tea does not have any nutritive value. Therefore, tea is not a “foodstuff”: S. Samuel, M. D. Harrisons Malayalam V. Union of India, AIR 2004 SC 218.

The word “oil” used in regard to foodstuff is edible oil and not oils like kerosene (Tulsi Modi v. State of Orissa).

To deal effectively with malpractices like blackmarketing, hoarding, profiteering and to arrest the unjustified rise in prices of essential commodities by providing for the preventive detention of persons likely to indulge in such practices. Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Bill was introduced in the Parliament.

The Ordinance recognized preventive detention as a necessary evil and accordingly sought to provide for various safeguards to avoid scope for possible abuse of powers.

An Act to provide for detention in certain cases for the purpose of prevention of blackmarketing and maintenance of supplies of commodities essential to the community and for matters connected therewith.

The Central Government feels that if it is necessary for maintaining or increasing supplies of any essential commodity or to secure equitable distribution, it may, by order, regulate or prohibit the production, supply or distribution of those essential items.

The order may provide:

1.     Regulation by license, permits, production or manufacture of any essential commodity

2.     For bringing under cultivation any waste or arable for growing specified food crops

3.     For controlling the price

4.     For prohibiting the withhold from sale of any essential commodity

Essential Commodities (Amendment) Act 2003

This amendment empowers the Central Government to direct that no producer, importer or exporter shall sell or otherwise dispose of or deliver any kind of sugar or remove any kind of sugar from the bonded godowns of the factory where it is produced.

The word sugar includes plantation of white sugar, raw sugar and refined sugar whether indigenously produced or imported.

The Trademarks Act 1999

The Trade and Merchandise Marks Act, 1958

It had served its purpose and review of the existing law was necessary because of developments in trading and commercial practices, increasing globalization of trade and industry, etc. a need for simplification and harmonization of trademark and to give effect tp important judicial decision.

Hence the Trademark Act, 1999 incorporated the following:

1.     The registration of trademarks for services in addition to goods.

2.     Registration of trademarks which are imitation of well known trademarks not to be permitted.

3.     Simplified procedure for registration with equal rights.

4.     Enhancing punishment for the offences relating to trade marks.

5.     Appointing an Appellate Board for speedy disposal of appeals.

6.     The final authority for registration of certification trademarks to the Registrar instead of the Central Government.

Certain Draft Rules were published in the exercise of powers given in the Trademarks Act 1999. These Draft Rules were called the Trademarks Rules 2002. These rules give in detail the explanation of the terms used, along with the procedure for registration of Trademarks application, about renewal, etc.

The Patents Act 1970

It extends to the whole of India. Person who can apply for patents:

1.     Is the first inventor of the invention

2.     Is any person being an assignee of the person who claims to be the first invention

3.     Is any representative of any deceased person who immediately, before his death was entitled to make such an application

Application has to be for one invention only and has to be made in the prescribed form and filed in the patent office.

When a provisional application is made, a complete specification has to be filed within 12 months otherwise the application is deemed to be abandoned.

Every International application under the Patent Co-operation Treaty for a patent may be filed designating India only if a corresponding application has also to be filed before the Controller in India. The date of filing in both the places has to be same.

The controller can ask for any details relating to the processing of the application of a patent outside India:

·       No resident to apply for patent outside India without prior permission

The controller has the power to decide on matters of infringement if any.

The Consumer Protection Act, 1986

It is an Act to provide protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlements of consumers’ disputes for matters connected therewith.

This Act extends to the whole of India except the State of Jammu & Kashmir

Definitions

1.     Appropriate Laboratory: one that is recognized by the Central Government, State Government and one that is set up by or under any law and is maintained, financed or aided by the Central or State Government for carrying out analysis or tests of goods or find out if there is a defect.

2.     Complainant:

                           i.         A consumer or more consumers with same interest

                          ii.         Any voluntary consumer associations

                        iii.         Central Government or State Government

                        iv.         In case of death of a consumer who has complained, the legal heir of representative

3.     Complaint: means any allegation in writing made by a complainant that

·       An unfair trade practice or restrictive trade practice has been adopted by any trader or service provider

·       That goods bought or agreed to be bought suffer from one or more defects

·       The service hired or availed of or agreed to be hired or availed of suffer from deficiency

·       The trader has charged for the goods a price in excess of the price fixed by law, or that marked on the package or a price agreed upon by both parties

·       Goods are hazardous to life & safety when used are using offered for sale (if the trader knew of the danger)

4.     Consumer:

·       Is a consumer who buys goods for a consideration or hires or avails of services and includes any user of such goods other than the person who buys such goods

·       It does not include a person who avails of such services for any commercial purpose

5.     Consumer Dispute: means a dispute where the person against whom a complaint has been made, denies the allegations made in the complaint.

6.     Defect: means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required.

7.     Deficiency: means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required.

8.     Manufacturer: means a person who

·       Makes or manufacturer any goods or parts thereof

·       Does not make or manufacturer, any goods but assemble parts made by others

·       Puts his own mark on any goods made by any other manufacturer

Definitions

“Person” includes a form, whether registered or not, a Hindu undivided family, a co-operative society and every other association whether registered or not.

“Prescribed” means prescribed by rules made by the State Government or Central Government.

“Regulation” means rule made by the National Commission under the Act.

“Restrictive Trade Practice” means a trade practice which brings about manipulation of price or its conditions of delivery or to affect flow of supplies in the market which imposes on the consumers, unjustified costs or restrictions.

“Spurious goods and services” means goods and services which are claimed to be genuine but they are actually not so.

The act was amended in 1991, 1993, 2002 & 2005.

Pharmacy Act 1948

Why the Act was introduced

Earlier there was no restriction in India on the profession of pharmacy. One would practice this profession as any other profession. People having no education in pharmacy or pharmacist’s chemistry or pharmacology were engaged in this profession.

The compounding, mixing or dispensing of medicines was being done by persons who were not adequately trained in this line. The system was causing great harm to the health of the people by wrong compounding.

Thus the government found it necessary to enact a law for the registration of the profession and practice of Pharmacy.

In the field of medicines the role of the pharmacist is very important. Everyone cannot be a pharmacist. Hence the Pharmacy Act came into existence in 1948. This law was amending by the Amendment Act of 1959. The law laid down the formation of Pharmacy Councils in the Centre and also in the States. The Councils prescribe the discipline for the same.

The Central Council of Pharmacy will prescribe the minimum standards of education and approve courses of study and examinations for pharmacists.

Provincial Governments can prohibit dispensing of medicine if there is no personal supervision of a registered pharmacist.

The 1948 Act was amended in 1959 to:

·       Extend the Act in former B States

·       To meet situations due to reorganization of States

The Amending Act of 1976

·       The University Grants Commission and All India Council for Technical Education were included in the Pharmacy Council

·       The Comptroller and Auditor General of India or any person authorized by him will audit the accounts of the Pharmacy Council

·       Persons from neighboring countries who migrated to India were allowed to register as pharmacists

·       People working as compounders / dispensers courses according to the Drugs & Cosmetics Act 1940, could register as pharmacists

Amending Act of 1982

This Act provides that the State government can appoint only a registered pharmacist.

The State Government shall provide a register of pharmacist and maintain that register which will include:

·       The full name and residential address

·       The date of first admission to the register

·       The qualification for registration

·       The professional address

Qualifications for entry on first register:

·       A degree or diploma in pharmacy, a pharmaceutical chemistry, a chemist and druggist diploma of an Indian University

·       Three years experience in dispensing or compounding drugs and a university degree

·       Passed only examination for compounders or dispensers recognized by the State

·       Engaged in compounding drugs for five years

The Act extends to the whole of India except Jammu & Kashmir.

Drugs and Magical Remedies (Objectionable Advertisements) Act 1954:

Section 2(a) of the act defines advertisement. Advertisement includes any notice, circular, label, wrapper or other document, and any announcement made orally or any means of producing or transmitting light sound or smoke. Section 3 deals with prohibition of advertisement of certain drugs for treatment of certain disease and disorders. Subject to the provision of this act, no person shall take part in the publication of any advertisement referring to any drug in the terms, which suggest or are calculated to lead to use of that drug for

a)     The procurement of miscarriage in women or prevention of conception in women or

b)     The maintenance or improvement of the capacity of human beings for sexual pleasure, or

c)     The correction of menstrual disorder in women, or

d)     The diagnosis, cure, mitigation, treatment or prevention of any venereal disease disease or any other disease or condition which may be specified in rules made under this Act.

Section 4 prohibits misleading advertisement relating to drugs. Subject to the provisions of this act, no person shall take part in publication of any advertisement relating to a drug of the advertisement contains any matter which:

a)     Directly or indirectly gives false claim for the drug

b)     Directly or indirectly gives false impression regarding the true character of the drug

c)     Is otherwise false and misleading in any material in particular.

Section 5 prohibits advertisement of magical remedies for treatment of certain disease and disorders. No person carrying or purporting to carry on the profession of administering magical remedies shall take any part in the publication of any advertisement, referring to any magical remedies which directly or indirectly claim to be efficacious for any other purposes specified in Section 3.

Penalties:

Shall attract imprisonment for a period of 6 months, which may extend to 3 years and a fine of Rs.5000/-, for subsequent offence further period of imprisonment of 1 year and a fine of

Rs.10, 000/- and confiscation of license.

Visual Distortion and Incomplete advertisement:

The matter stated in advertisement in both print form and visual form should be complete in all aspect leaving nothing to chance. All material facts are to be stated in full and nothing is left to guess work in the mind of consumer who later on shall regret of making the decision to buy that product or services.

Fine Print Small Print Clarification:

All matter and material facts has to be disclosed, all “conditions apply” statements should be absolute in all respect. In matter of “Risk Clause” all the risk has to be stated and there shall be no surprise elements. The basic objectives of having the above is to help the consumer in arriving at correct decisions rather than regretting at the later stage because of injury or untold sufferings that the consumer has to endure.

Copyright Act 1957

Copyright:

Copyright is an exclusive right to reproduce an original work of authorship fixed in any tangible medium of expression to prepare derivative works based upon original work, and to perform or display the work in the case of musical, dramatic, choreographic and sculptural works.

Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principles, or discovery, regardless of the form in which it is described, explained or embodied.

Rather copyright protection is limited to an author’s particular expression of an idea, process, concept, and the like in a tangible medium.

The exclusive rights granted to copyright owner do not include the right to prevent others from making fair use of the owner’s work. Such fair use may include use of work for the purpose of criticism, comment, news reporting, teaching or education and scholarship or research.

The nature of work, the extent of the work copied, and the impact of copying on the work’s commercial value are all considered in determining whether an unauthorized use is a “ fair use”.

Originality is the Key to Copyright:

To secure copyright protection, the work in question must be in original work of authorship fixed in tangible medium of expression. Works of authorship that fall within the definition shall include:

Ø  Literary works (including computer programs)

Ø  Musical works and accompanying lyrics;

Ø  Dramatic works and dialogues;

Ø  Choreographic works;

Ø  Pictorial, graphic and sculptural works;

Ø  Motion pictures and other audiovisual works and

Ø  Sound recordings. (what does copyright cover)

The test for the originality of a work is usually two-pronged.

First, the work of authorship must originate from the author, in the sense that the author must have actually independently created it and not copied from other woks.

Second, the work must contain a sufficient amount of creativity so as to be more than trivial.

To be copyrightable, a work must be “ fixed in a tangible medium of expression. A work is fixed when its embodiment in a tangible medium is sufficiently permanent or stable as to permit it to be perceived, reproduced or otherwise communicated for a period of time that is not transitory.

Exceptions:

Copyrights shall not be applicable if the user pays the price of the value to the owner when he purchases from the author. Eg: Mr.Swarup paid Rs.100 cores to Mr. M.F.Hussain for collection of 100 paintings.

When the work is done at the instance of some one and that person pays for the work when the work is complete. Eg: Mr.Subhash Gai pays the music composer the consideration for the music composed.

Play back singers, lyricist, music composers, dialogue writers too loose their right if they are paid off by the producers except if they enter in to an exclusive agreement of copyright protection for the payment of royalty.

Authors in contractual employment of service, appointment are subject to terms of employment.

Authors in Government employment, government undertaking, exclusive employment to conduct Research & Development Eg; BARC, IITs, IIMs, TISS etc.

Assignment:

Owners of copyright in existing work, prospective owners of copyright may assign either whole or in part either generally or specifically subject to some limitations.

The person to whom the work is assigned are known as “assignees”, they could be legal representatives, legal heirs, Agents etc.

The Assignment could be made any time during the lifetime of the author(s), during the currency of works or before the work comes into existence but definitely before the death of the author(s).

Modes of Assignment:

Ø  In order to be valid should be in writing, signed by the author(s), or by their legal representatives or authorized agent.

Ø  Assignment shall identify such work and shall specify the rights assigned and the duration, territorial extent – National/International.

Ø  The amount of royalty payable to the author(s), legal representatives, during the subsistence of the agreement.

Ø  The duration of agreement shall cover by default 5 years if not exclusively mentioned in the agreement.

Ø  The Territorial limits if not mentioned in the agreement then shall cover entire India.

Infringement:

Film: If a substantial part of the film is reproduced without the approval from the producer or the copyright holders, without giving footage or the credits to the original makers.

Sound Recording: In respect of reproduction due credits are to be given, in case of remix due footage and credits are to be given before or during the course of the songs being sung in which ever manner. If no credits are given then it amounts to infringement.

Terms of Copyright:

Ø  Except otherwise, copyright shall subsist within the lifetime of the authors, until 60 years from the beginning of calendar year next following the author dies.

Ø  Copyright in terms of anonymous and pseudonymous works –

Shall subsist until 60 years for films etc., 10 years for computer and TV programmes and 50 years for books and literary works, from beginning of calendar year, which the author dies.

Reference to the author shall, in the case anonymous work of joint authorship is construed.

Where the identity of the author is disclosed reference to that author.

Where the identity of more author than one is disclosed, as reference to the author who dies among such authors.

In case of Joint authors copyright shall subsist till the end of 60 years from the calendar where the last author dies.

Procedure for applying License for Copyright:

Ø  Person intending to apply for license shall apply to Copyright Board for a license to produce and publish their current work or prospective works.

Ø  The intending licensee shall produce all the documentary evidence substantiating their claims with all proofs etc.

Ø  The Copyright Board shall record the application and shall publish in a leading newspaper about the claim of the intending licensee.

Ø  The Copyright Board shall provide around 2 months for recording NOC, providing show cause why the copyright should not be granted.

Ø  If no NOC is obtained in 2 months time, then the Copyright Board shall invite the intending licensee to make a formal presentation with all the supporting.

Ø  Once the Presentation is made and if the Copyright Board is satisfied about the claim then they shall call upon the intending licensee to pay the prescribed fees.

Ø  Normally the License is granted within 1 month of the intending licensee completing the formalities.

Ø  Once the License is granted then the holder gets exclusive license.

Ø  The publishers shall also state the retail price to enable to calculate the royalty fees.

License to produce and Publish Translation:

Ø  Person, who wants to apply for translation in any language, shall apply for the same after 7 years of its first publication.

Ø  Not with standing if the publication is used for research and development or for educational purpose then the application can be made after 3 years.

Remedies available:

Civil Remedies:

Injunction and Damages u/s 55:

Defendant not aware of copyright existed then only injunction, a decree of whole or part of the profits made by the defendant by sale of such publication as court deems fit.

All copies, plates and materials used indented for production shall be the property of the owners of copyright – accordingly make proceedings for the recovery of the possession.

Remedies for Groundless threat of Legal Proceedings:

Person claiming to be the owner of the copyright in any work, threatens any other person with any legal proceedings, in respect of alleged infringement – the aggrieved party can institute a declaratory suit that the alleged infringement is not an infringement of any legal rights of the person making such threat- can seek injunction of that threat, till the disposal of the case after the final hearing.

Criminal Remedies:

Ø  The aggrieved party to lodge a FIR reports with the Police alleging such infringement.

Ø  The police shall present the matter with a Judicial Magistrate, who on satisfaction shall issue a search warrant to the concerned Police Station to initiate an action.

Ø  The Police Inspector not below the rank of Sub-inspector of Police can issue a search warrant can seize and confiscate the material.

Ø  The Police inspector upon confiscation shall issue a “Panchnama” to the concerned person on whose premises the seizure is conducted.

Ø  The Police shall lodge the seized materials to the Judicial Magistrate as soon as possible and practicable.

Ø  The person found guilty shall be punishable with imprisonment for a term between 6 months extendable up to 3 years and a fine, which may range between Rs.50000/- to Rs.3lakhs or both.

Consumer Education and Research Society ( CERC)

CERC was set up in August 1978, as a public charitable trust with a corpus of Rs.2000/-. It is a non-profit voluntary organization. The CERC in co-operation with its allied organization deals with Local, Regional, and National 

And International issues related to consumer protection, investors protection and environment protection. The Government of India has recognized as a research institute and government of Gujarat of which Ahmedabad is a major city has recognized it as a consumer organization. CERC is India’s only consumer organization with an independent in-house comparative product-testing laboratory for testing evaluation rating and ranking of consumer goods. The test findings are published in organization subscription based bi-monthly “INSIGHT”. The Consumer magazine, the test reports identifies the brands and the manufacturers of the products tested and declare which brands have conformed to the test parameters under the Indian Standards and which have not.

The Objective of CERC is as under:

1)         Ensure total protection of consumers including investors

2)         Represents consumers before the Government and other authorities

3)         Protect the interest of Women, Children, Social, Economic, Racial and ethnic minorities, prisoners and laborers.

4)         Promotes and protect Public Health and safety.

5)         Collaborate and co-operate with National and International Organization in achieving its objectives.

6)         Initiate, Conduct and support progress for conservation of National resources, protect and improve environment, prevention of hazards to human beings and other creature’s plants and property.

7)         Establish accountability of Public utility services including monopolies.

8)         Protect consumers against Monopolistic and Restrictive and Unfair Trade Practices.

9)         Keep a vigil on business, industry and Public services.

CERC has invoked the Gujarat High Court, Supreme Court, MRTP Commission and District Forum, State Commission, National Commission for redressal of Consumer Grievances.

The Section of “INSIGHT”

Frontline: An updated Indian News & Views on Consumer Protection.

Test Report: The Test report based on comparative product testing of consumer products conducted at ‘In-house’ comparative lab is the USP of the magazine. The report not only rate and rank the products tested against Indian standard, but also suggest ‘Best Buys’.

Write if you want to:

1)     Knows which ones they are before you buy them

2)     News, Views and tips on food health and hygiene.

3)     CERC interaction with the outside world.

4)     ‘Action taken’ reports on consumer grievances

5)     Your Consumer questions answered.

6)     An update on global news and views on consumer protection

7)     Consumer cased which deals with decided crucial issues.

Consumer Guidance Society of India (CGSI)

Since independence, India has been striving to develop and strengthen its industrial base in pursuit of “Self-Sufficiency”. However the consumer has been made to endure sub-standard products and services, adulterated foods, short weights and measures, spurious and hazardous drugs, exorbitant prices, hoarding of goods leading to artificial shortages, leading to black marketing and profiteering.

This outrage energized nine ladies to organize a movement to fight for consumer rights. They formed Consumer Guidance Society of India (CGSI) to resist consumer exploitation of all forms.

1)          It is the earliest consumer organization in India, founded in 1966.

2)          It was first to demand a Consumer Protection Act with consumer courts, which became a reality in 1986.

3)          To date 70% of the thousands of complaints referred to CGSI have been redressed.

4)          It established formal Product Testing in India.

5)          It was first to publish monthly magazine “Keemat” highlighting information of importance of consumer.

6)          It promotes consumer education, initiates training projects in rural areas; publicity drives, and represents consumer interest with Government and other bodies.

7)          It received National Award for consumer Protection in 1991.

8)          It is the only Indian Consumer Organization to be a council member of Consumer International for 25 years.

Legal Frame Work:

It was the first consumer organization to demand special Consumer Court for redressal of Consumer Complaint in 1975.

It handles consumer complaints and offers legal guidance to those wishing to file suits in Consumer Courts. In case of complaints are many against a particular party both sides are brought together to resolve the issue.

It has handled over the years with 70% success complaints covering Medical/Surgical malpractices, negligence, insurance non payment, sub-standard drugs and medicines, defective house hold devices, poor quality foods and drinks, misleading advertisement claims and grievances concerning investments, telephones and electricity supplies. (Quote “95% success rate”)

Product Testing:

It established in 1977 facility of product testing. It first assessed the safety performance of domestic pressure stoves and found 2/3 rd of the samples failed safety measures. It also interacts with Indian Standard Institutions (ISI) regarding quality control of the products and services.

Consumer Education for Schools / Colleges: (for Additional Marks)

It is working with like-minded educationist to formally introduce Consumer Education in school curriculum. After 2 years of inter actions, in 1994, the Maharashtra Education Board introduced Consumer Education at the 9th standard level progressively covering students from 4th standard upwards.

Publications:

“Keemat” now a 3-decade+ publication, the first consumer magazine in India, published monthly. It has also produced guides on subject like Electrical Appliances, Edible Oils, Pesticides, Food Adulteration, and Safety at Home, Safe Blood etc.

Pedestrian Wing:

To secure rights of pedestrian to walk in safety, constituting as they do the largest segment of traffic stream in our country.

It crates awareness about the rights and responsibilities of Pedestrians. To spread awareness about importance of walking as a mode of transport and facilities its use for short distance transportation. To facilitate use of user friendly Public Transport and

Encourage its use by public. To fight proper orderly and safe traffic Management and conduct/handling of all related matters conducive to minimum vehicle pollution. To network and co-operate with all Government, Municipal and like-minded NGOs, Citizen groups working or engaged in transportation field. It also includes regular and continuous interactions with MCGM, traffic police, transport commissioner and RTOs at all levels. (Quote “Salman Khan – if you WANT to)

Consumer Complaints Why and How:

Consumer who complains allows himself or herself to be brainwashed into believing that they are trouble makers. Consumers must not hesitate to complain about adulterations, sub-standard drugs and cosmetics, shoddy product quality, unsatisfactory after sales service etc. There is also the Package Commodities Act which insist that weights, price, date of manufacture and ingredients are marked on all packages. This Act as well as “Agmark” and “ISI” mark can be of substantial assistance in the fight for consumer rights.

How to Complain: (Summary of what is in CPA Chapter)

1)          Be sure the complaint is sound.

2)          Present it politely, elicit co-operation

3)          Preserve cash memos and warranty card

4)          With these, first approach the retailer. He may have a valid explanation.

5)          If he is unresponsive, write to the manufacturer, quoting no and date of cash memo no and date of cash memo and date of Warranty card.

6)          Retain all originals; keep copies of your letters.

7)          In case of suspected Food and drug adulteration write to State health authorities. Retain samples wherever possible.

8)          If products with ISI/AGMARK certification performs poorly write to the respective agency, ISI certification guarantees free replacement.

9)          If there is no response, write to Consumer Guidance Society of India, Block “J” Mahapalika Marg, and Mumbai 400001.

10)   Don’t give up if your complaint is valid, stand your ground.

11)   If a consumer organization is unable to get your complaint redressed, you may complain to your District Consumer Dispute Redressal Forum.

12)   Time and Place of the complaint.

13)   Relief claimed by you should be in clear words – replacement, / removal of defect or return of price, compensation for expenses incurred as well as physical/mental torture, if any. The claim amount should be within reasonable limits and Justifiable.

Where to Complain for Guidance and help:

Complaints of representative nature may be filed by registered consumer organization like Consumer Guidance Society of India. For enquiries seek guidance from:

The Complaint Committee, Consumer Guidance Society of India, Block “J” Mahapalka Marg, Mumbai 400 001.

The Council for Fair Business Practices, Great Western Building, 130/132 Shaheed Bhagat Singh Rd, opp Lions Gate, Mumbai 400 038.

The Mumbai Grahak Panchayat Grahak Bhavan, Sant Dnyaneshwar Marg, Juhu Vile Parle, JVPD scheme, Mumbai – 400038.

Senior Citizens:

The advertisement as a role model of Public opinion has a social cause to play as far as portraying the senior citizens. In presenting this section of the society care to be taken that they are not portrayed in bad light, as sick, dependent, full of ailments, too feeble to take care of them. The portrayal should take care of the dignity of treatment of human beings. The advertisers are expected to portray them as a role model, conscience carriers of value system, which could be guiding factors for generations to follow.

Racial and Ethnic Minorities:

The advertisement as a role model of Public opinion has a social cause to play as far as portraying the racial and ethnic minorities.

Advertisement can be tasteful and in conformity with high moral standards, and occasionally even morally uplifting.

Commercial advertisers when they include religious themes or use religious images or personages to sell their products should do them in tasteful and acceptable ways rather than entering in to controversial areas. They should be respectful and show tolerance to the sensibilities of all faiths, and should never portray any community, class in bad light.

As far as possible they should be rational in their approach and should avoid social issues that could fan communal disharmony in the social ethos.

Standards and Weights and Measures:

The Standards and Weight Measures Act 1976 was enacted to establish standard and weights and measures and regulate inter-state trade or commerce in weights and measures and other goods or distributed by weights, measures. The act extends to whole of India.

Sale and Distribution of Goods in Packed Form:

When commodities are sold and distributed in packed form in the course of inter-state or commerce, it is essential that every package must have a

1)     Plain and conspicuous declaration thereon showing the identity of the commodity in the package.

2)     The net quantum in terms of standard weights and measures and if in nos, the accurate number therein,

3)     The unit sale price of the commodity and the sale price of that particular package of commodity.

4)     The names of the manufacturer and also the packer or distributor, should be mentioned on the package.

In this regard the Packaged Commodities Rules were framed in 1977. These rules extend to the whole of India and apply to the commodities in packed form which are, or are intended or likely to be sold, distributed or delivered or offered or displayed for sale, distribution or delivery or which are stored for sale, or for distribution or delivery in the course of inter-state trade and commerce.

Exemptions:

The rules does not apply to:

a)     Packages for the exclusive use of any industry as raw material or for the purpose of servicing any industry mine or quarry provided:

Ø  Their contents are not more than 5kg, and they are not displayed for sale at retail outlets.

Ø  It is not yarn sold to handloom weavers.

Ø  It is not a component, part or material used for servicing any vehicle covered under the Motor Vehicle Act 1939, and

Ø  The package does not contain any commodity sold by number or length and displayed for sale at retail outlet;

b)     Commodities (excluding any drug or medicine) whose net weight is 20g or less or 20ml or less, if sold by weight or measure;

c)     Any package contains fast food items packed by restaurant / hotel and the like

d)     Drugs covered under the Drugs (Prices Control) Order 1995.

e)     Agricultural farm products in packages of above 50kg.

Further the Central Government may, on application made, permit manufacturers / packers to pack for sale the following types of pre-packed commodities for a reasonable period relaxing any or all the provision of these rules.

1)     Introductory Packs

2)     Innovation Packs

3)     Trial Packs

4)     Promotional Packs.

The Prevention of Food Adulteration Act (1954):

The prevention of Food Adulteration Act 1954 aims at making provisions for the prevention of adulteration of food. The act extends to the whole of India and came into force from June 1, 1955.

What is Adulterated Food?

1)     If the article is sold by vendor is not of the nature and substance or quality demanded by the purchaser or which it purports to be,

2)     If the articles contains any substance affecting its quality or of its so processed as to injuriously affects its nature, substance or quality,

3)     If any cheaper or inferior substance has been substituted wholly or partly for the article, which injures the nature of the product

4)     If the articles are kept in unsanitary conditions where it becomes contaminated or injurious to health.

5)     If the articles contains poisonous and other ingredients which is injurious to health

6)     If the container of the article is composed of any poisonous or deleterious substance which renders its contents injurious to health.

7)     If the article contains any prohibited clouring matter or preservatives or any permitted coloring matter or preservatives in excess of the prescribed limits.

8)     If the quality or purity falls below the prescribed standards.

9)     Thus adding water to milk also constitute to adulteration.

What is misbranded goods:  

1)     If its is an imitation or substitute for or resembles in a manner to deceive another article and it is not conspicuously labeled to indicate its true character

2)     If it is falsely stated to be the product of any place or country

3)     If it is sold by a name which belongs to another article of food.

4)     If it is colored, flavored, coated, powdered, or polished as to conceal any damage to articles to appear of greater value than it really is,

5)     If false claim are made for it upon the label or otherwise

6)     If the package contains it is deceptive with respect to its contents

7)     If the package contains labels fictitious names of individual or company

8)     If it contains any artificial flavoring, coloring or chemical preservatives in violation of the requirements under the act

9)     If it is not labeled in accordance with the requirements of this Act and the rules made there in.

Prohibition on Manufacture, Sale, of certain Food Articles:

No person shall manufacture, store, sell or distribute

a)     Any adulterated food

b)     Any misbranded food

c)     Food articles to be sold under license without fulfilling the conditions.

d)     Any food articles the sale of which is prohibited by the Food (Health) authorities. In the interest of Public health.

e)     Any food article in contravention of any other provision of the Act and Rules framed therein.

f)      Any adulterant

The act of storing and adulterated article of food would be an offence only if storing is for sale.

Offences and Penalties:

1)     Import, Manufacture, store, sell or distribute food articles which is adulterated by allowing the quality, purity to fall below the prescribed standard, or is misbranded or in contravention of any provisions – imprisonment 6 months which may extend to 3 years and a minimum fine of Rs.1000 or both.

2)     Imports, manufactures, stores, sell goods of any adulterant injurious to health – penalty imprisonment minimum 6 months which may extend to 3 years and a minimum fine of Rs.1000/-

3)     Preventing any food inspector from taking samples or exercising any of his powers – minimum penalty imprisonment of 3 years.

4)     Giving false warranty in writing in respect of any food article – penalty minimum imprisonment 6 months which may extend to 3 years and a fine minimum of Rs.1000/-

Sale and distribution of any food articles containing any poisonous or any other ingredients injurious to health, which is likely to cause death or grievous bodily harm penalty minimum imprisonment of 3 years which may extend to life and a minimum fine of Rs.5000/-

Deceptive Advertising:

Deception exists when advertisement is introduced in to the perceptual process of some audience and the output of that perceptual process differs from reality of the situation and affects buying behavior to the detriment of the consumer.

The deception will be found:

1)         There is a misrepresentation, Omission that practice is likely to mislead.

2)         The Consumer is acting irresponsibly to a particular given situation.

3)         The practice is material and consumer injury is possible, because consumer is likely to have chosen differently if there was no deception.

1)         Who is deceived – For advertisement to be deceptive it must contain a material truth. That is one capable of affecting purchasing decisions. It is also likely to cause public injury – consumer suffers directly or indirectly because they are induced to make a buying decision. The goods purchased ultimately turn out to be a bad decision which leaves a customer worse off mentally as well as financially.

2)         Acceptable level of Deception – The standard depends upon the context. The health, safety should be very low or even zero. The Quality control probabilistic measure is also taken in to consideration subject to the approval of FDA and other certifying authorities.

Misrepresentation and Omission:

There are various ways in which misrepresentation or omission occurs:

3)     Suggesting that small different is important.

4)     Artificial product demonstrate extraordinary feat performed by the model – “Cheetah Bhi Peeta Hai”

5)     Using ambiguous phrases easily confuses the mind – “Supported by the Government, recognized by Dental Association”

6)     Implying benefits that do not fully or partly exist – Vegetarian Tooth paste.

7)     Implying that the product benefit is unique to the brand – Health drink substitute for meal.

8)     Incorrectly implying that the endorser uses and advocates the brand – using icons.

9)     Omitting a needed qualification – complete disclosure of fact and substance.

10) Bait and Switch offers – “no longer available from tomorrow”, “last day today”

11) Intellectual property – using falsely research items.

12) False Testimonials – These are tools that are used to increase attention, particularly with radio, television, and print. Sometime very effective form of advertising, they are not always not done well. The intention behind real person endorsement is to depict a simulation of word of mouth advertising. They may show typical people “white coat doctor”, a typical characteristic representation associated with some emotional appeal like “parents don’t lie”. The process is empathy and identification indicates more like us “satisfied customers” appear to be the more effective testimonials. (SHORT NOTE)

13) Who is deceived – For advertisement to be deceptive it must contain a material truth. That is one capable of affecting purchasing decisions. It is also likely to cause public injury – consumer suffers directly or indirectly because they are induced to make a buying decision. The goods purchased ultimately turn out to be a bad decision which leaves a customer worse off mentally as well as financially.

14) Acceptable level of Deception – The standard depends upon the context. The health, safety should be very low or even zero. The Quality control probabilistic measure is also taken in to consideration subject to the approval of FDA and other certifying authorities.

The Grahak Panchayat

Grahak Panchayat or Consumer Forum is a social organization, which was registered under Co-operative Societies Act in 1986. The original movement was started in 1974, when there was acute shortage of goods of daily use and essential commodities. To ease and lessen the sufferings of the people (Consumers) in getting hold of essential commodities at reasonable prices, a group of young people started this movement. Initially they formed a group of 25 families staying in same proximity. About 500 groups were formed.  As a combined effort, material was purchased in wholesale as well from manufacturers, which resulted in economy of prices. The materials were handed over to the leader of the above-mentioned family group for subsequent distribution to its members. Later on it was felt that the ordinary consumers in his individual capacity could not get justice in his day-to-day life. Hence the organization now known as ‘Grahak Panchayat’ was formed.

What does the Grahak Panchayat Do?

The main objective of this organization is to educate the people about their rights as a consumer (any one who purchases anything is a consumer). They also aim to build an organization of consumers, which would in turn be effective in getting justice. The volunteers include retired people from various fields with plenty of knowledge and experience. There is no membership to this organization. Any one is free to join voluntarily. Help may be provided in cash (for which you will be given receipt) or then by way of services. In case people feel cheated as consumers, the grahak panchayat is there to guide you from familiarizing you with your rights as consumers to teaching the procedures and requirements and to get documentary evidence etc. They try to solve your problem amicably and use Grahak court as the last resort, which is located at Gultekdi market yard at Pune. The Grahak Panchayat holds seminars too and is open to discussion/ seminars anywhere that people want them to.

What is the current scenario and how far they are spread?

Within a span of 25 years, Grahak Panchayat is spread all over the country including Andaman. At present they are running counseling centers where free advice is given to the consumers.

What literature does Grahak Panchayat have concerning consumer’s rights?

The Grahak Panchayat has literature from their philosophy on the economic movement to the precaution the consumer must take as well as what they can do if they have been cheated

WHY SELF-REGULATION IN ADVERTISING?

In recent years the quantity of false, misleading and offensive advertising has resulted in consumers having an increasing disbelief in advertising, and a growing resentment of it. Misleading, false advertising also constitutes unfair competition. It could lead to market-place disaster or even litigation. If this kind of advertising continues, it won’t be long before statutory regulations and procedures are imposed which make even fair, truthful, decent advertising cumbersome if not impossible. This certainly will affect your ability to compete and grow.

The Advertising Standards Council of India (ASCI) (1985) has adopted a Code for Self-Regulation in Advertising. It is a commitment to honest advertising and to fair competition in the market-place. It stands for the protection of the legitimate interests of consumers and all concerned with advertising – advertisers, media, advertising agencies and others who help in the creation or placement of advertisements. As the Code becomes increasingly accepted and observed pro-actively, three things will begin to happen.

1. Fewer false, misleading claims

2. Fewer unfair advertisements

3. Increasing respectability

Which, only means more freedom for you to practise your craft or carry on your business effectively. As a member of ASCI, you can mould the course of Self-Regulation and participate in the protection of healthy, effective advertising. You can have a say, through the Board of Governors, in the further development of the Code and future appointments to the Consumer Complaints Council (CCC). Membership of the ASCI (open only to Firms) entitles you to appoint your nominee to discharge your function as a member, including standing for election to the Board of Governors and voting at general meetings.

 Why not make Self-Regulation truly work for you?

In India, as in several advanced economies, there is only ONE BODY for Self-Regulation in Advertising – the ASCI, which is concerned with safeguarding the interests of consumers whilst monitoring/guiding the commercial communications of Practitioners in Advertising on behalf of advertisers, for advertisements carried by the Media, in their endeavor’s to influence buying decisions of the Consuming Public.

Advertising Standards Council of India (ASCI)

OBJECTS OF ASCI

The main objects to be pursued by the Company on its incorporation are – …To monitor administer and promote standards of advertising practices in India with a view to.
 Ensuring the truthfulness and honesty of representations and claims made through advertising and safeguarding against misleading advertising….Ensuring that Advertising is not offensive to generally accepted norms and standards of public decency.Safeguarding against the indiscriminate use of advertising for the promotion of products or services which are generally regarded as hazardous to society or to individuals or which are unacceptable to society as a whole.Ensuring that advertisements observe fairness in competition and the canons of generally accepted competitive behavior.
 
 
 
Consumer Complaints Council 
The Board of Governors shall appoint Consumer Complaints Council (CCC), the number of members of which shall not be more than twenty one….The Consumer Complaints Council shall examine and investigate the complaints received from the consumers and the general public, including the members of the Company, regarding any breach of the Code of Conduct and/or advertising ethics and recommend the action to be taken in that regards.
 
Power Of The Consumer Complaints Council 
Each Council shall be entitled to receive complaints from the Board of Governors, the Consumers, the general public and members of the Company.Each Council shall enquire, investigate and decide upon the complaints received by it within the frame work of the Code of Conduct adopted by the Company.All the decisions of each Council shall be by simple majority, in writing and may specify the action to be taken in respect of the offending advertisement.

MISSION OF ASCI

ASCI has one overarching goal: to maintain and enhance the public’s confidence in advertising.

ASCI seeks to ensure that advertisements conform to its Code for Self-Regulation which requires advertisements to be.

●      Truthful and fair to consumers and competitors.

●      Within the bounds of generally accepted standards of public decency and propriety.

●      Not used indiscriminately for the promotion of products, hazardous or harmful to society or to individuals particularly minors, to a degree unacceptable to society at large.

ASCI propagates its Code and a sense of responsibility for its observance amongst advertisers, advertising agencies and others connected with the creation of advertisements, and the media.

ASCI encourages the public to COMPLAIN (*) against advertisements with which they may be unhappy for any reason and ensures that each complaint receives a prompt and objective consideration by an impartial committee Consumer Complaints Council (CCC) which takes into account the view point of the advertiser, and an appropriate decision is communicated to all concerned.

ROLES AND FUNCTIONS OF ASCI

The Role and Functioning of the ASCI & its Consumer Complaints Council (CCC) in dealing with Complaints received from Consumers and Industry, against Ads which are considered as False, Misleading, Indecent, Illegal, leading to Unsafe practices, or Unfair to competition, and consequently in contravention of the ASCI Code for Self-Regulation in Advertising.

ASCI is a voluntary self-regulatory council, registered as a not-for-profit Company under section 25 of the Indian Cos. Act. The sponsors of the ASCI, who are its principal members, are firms of considerable repute within Industry in India, and comprise Advertisers, Media, Ad. Agencies and other Professional /Ancillary services connected with advertising practice.

The ASCI is not a Government body, nor does it formulate rules for the public or for the relevant industries. The Purpose and the Mission of the ASCI is spelt out clearly in the literature provided.

You will appreciate that if an AD is to be reviewed for its likely impact on the sensibilities of individual viewers of TV, or readers of press publications, we require to convey to the Advertiser concerned, the substantial issues raised in the complaint, in the exact context of the specific Ad, as conveyed by the perception of the complainant, and to elicit the appropriate response by way of comments from the Advertiser.

As a policy we do not disclose the identity of the complainant to the Advertiser

The ASCI receives and processes complaints against Ads, from a cross section of consumers, the general public and Industry, in the interests of all those who rely on advertising as a commercial communication, and this covers individuals, practitioners in advertising, advertiser firms, media, ad. agencies, and ancillary services connected with advertising.

In the case of complaints which were Upheld by the CCC, during the past year, it may interest you to know that over 80% of such Ads have been withdrawn or modified appropriately by the Advertisers/Agencies involved, and the concerned Media have also confirmed that they would not carry such offending Ads/TVC.

REGULATIONS OF ASCI CODE

THE CODE FOR SELF-REGULATION IN ADVERTISING PERTINENT EXTRACTS

Adopted by THE ADVERTISING STANDARDS COUNCIL OF INDIA under Article 2(ii)f of its Articles of Association at the first meeting of the Board of Governors held on November 20, 1985 and amended in February 1995 and in June 1999.

Declaration of Fundamental Principles

This Code for Self-Regulation has been drawn up by people in professions and industries in or connected with advertising, in consultation with representatives of people affected by advertising and has been accepted by individuals, corporate bodies and associations engaged in or otherwise concerned with the practice of advertising with the following as basic guidelines with a view to achieve the acceptance of fair advertising practices in the best interests of the ultimate consumer:

To ensure the truthfulness and honesty of representations and claims made by advertisements and to safeguard against misleading advertisements.

To ensure that advertisements are not offensive to generally accepted standards of public decency.  Advertisements should contain nothing indecent, vulgar or repulsive which is likely, in the light of generally prevailing standards of decency and propriety, to cause grave or widespread offence.

To safeguard against the indiscriminate use of Advertising in situations or of the promotion of products which are regarded as hazardous or harmful to society or to individuals, particularly minors, to a degree or of a type which is unacceptable to society at large.

To ensure that advertisements observe fairness in competition so that the consumer’s need to be informed on choices in the market-place and the canons of generally accepted competitive behaviour in business are both served.  Both the general public and an advertiser’s competitors have an equal right to expect the content of advertisements to be presented fairly, intelligibly and responsibly.  The Code applies to advertisers, advertising agencies and media.

Responsibility for the Observance of this Code

The responsibility for the observance of this Code for Self-Regulation in Advertising lies with all who commission, create, place or publish any advertisement or assist in the creation or publishing of any advertisement. All advertisers, advertising agencies and media are expected not to commission, create, place or publish any advertisement which is in contravention of this Code. This is a self-imposed discipline required under this Code for Self-Regulation in Advertising from all involved in the commissioning, creation, placement or publishing of advertisements.

This Code applies to advertisements read, heard or viewed in India even if they originate or are published abroad so long as they are directed to consumers in India or are exposed to significant number of consumers in India.

RECENT DEVELOPMENT BY ASCI

Media Release
ASCI launches National Campaign to combat Misleading AdvertisingDhananjay Keskar is the new Chairman of ASCIInvolvement of stakeholders, credible juries, and relevant national codes key        to self-regulationEASA & GOVT. Complement ASCIASCI Code made compulsary for TV ADs
 
 
 

PROCESS OF COMPLAINT AGAINST AN ADVERTISEMENT

The GENESIS of the ASCI and its ACTIVITIES-1985 till date 
 1.In keeping with the practice followed in almost 50 countries around the world, the Indian marketing and advertising professionals took the initiative of setting up a council called The Advertising Standards Council of India (ASCI), to self-regulate the content of advertisements. 2.The advertisers’ association, namely the Indian Society of Advertisers, the advertising agencies’ association, namely The Advertising Agencies Association of India, the media owner’s association, namely The Indian Newspapers Society, came together and took the initiative to form the ASCI (the council). 3.The Council’s Code for Self-Regulation in Advertising specifies that all advertising should be truthful, honest, decent, legal, safe for consumers particularly minors, and fair to the competition. 4.The Council is managed by a Board of Governors consisting of 16 elected members, constituted as follows:   Four each from Advertisers ●      from Advertising Agencies ●      from Media, and from Allied Professions like outdoor contractors            audio-visual producers/distributors ●      consumer researchers ●      printers/blockmakers, etc. 5.The Council has been in existence since October 1985 (regd. as a not-for-profit company u/s 25 of the Indian Companies Act.) 6.It has its own independent, fully staffed Secretariat of five members, headed by a Secretary General, who is an ex-Company Director. 7.There is no other professional association or trade or consumer body that looks into or tries to regulate the “content” of advertisements published or appearing in India, other than the observance of the prevalent laws of the land. 8.The Board of Governors appoint a Consumer Complaints Council (CCC) to examine complaints received by the Council. The composition of the CCC is as follows:   9 from within the advertising industry representing advertisers, advertising agencies, media owners and allied professions. 12 from society at large, consisting of eminent consumer activists, educationists, prominent journalists, lawyers, engineers, doctors, etc 9.From  time-to-time the Council puts out advertisements in newspapers, which are generally carried free of cost in the public interest, informing the consumers about the existence of the Council; and inviting them to complain to the Council, at no cost to themselves, should they find anything wrong or objectionable in any advertisement. 10.Each year the Council receives approximately 150 complaints. Of these, about 50% are Upheld and we get a voluntary compliance rate of as high as above 80% (4 out of 5 such advertisements are withdrawn or modified appropriately so as not to contravene the Code). If the advertiser refuses to accept the verdict of the CCC, then the Council uses its good offices with media owners (particularly its members), and advises them of such offending advertisements, which are in contravention of the ASCI Code  The Advertising: – Moulder of Public Opinion: (Summary) Advertising is one aspect of business that is most visible to every one in the society. The impact of advertising in our society is a fiercely debated topic. There are positive and negative social and economic impacts upon society from advertising in its various forms. For instance advertising promoting public welfare has a positive social impact on society, where as advertising portraying women as sex objects has a negative impact. There are also positive economic impact on society such as providing funding for the media and stimulating an active competitive economy. The importance of advertising is “steadily on the increase in modern society”. Just as the media of social communication themselves have enormous influence everywhere, so advertising, using media as its vehicle, is a pervasive, powerful force shaping attitudes and behavior in today’s world. Waste in advertising: – Referred to money spent on issues that are appropriate. In the recent years the cost of advertisement in any form amount to good amount of money and the advertisers will have to be prudent enough to see that they spend them wisely and prudently. When we evaluate social issues in relation to advertisement, we are even more in the areas of value judgment. We find that there is a tendency for the critics of advertising to base their allegation of its social values. Since the advertisement is moulder of public opinion they have to take in to consideration the following facts: (Any 5/6)1)         Advertisement should avoid making false statement, which shall confuse and mislead consumers,2)         Advertisement should also take in to consideration the implications that it may have on the minds of the consumers and the effect on their decision-making abilities.3)         Advertisement should promote the use of the products rather than the harm that it may have on the consumers.4)         Advertisement should also take in to consideration the aesthetic attributes of the consumers.5)         Advertisement, especially television commercial, should always aim at focusing on the attributes of their products, rather than forcing the consumers to buy the products.6)         Promote good of the individual over the good of the society.7)         Dissuade idealizing “good Life”, “instant gratification”, “ideal” characterization.8)         Stop appeals that leave consumers feeling in adequate, disappointed after use or consumption of the products advertised. The advertisers as mass moulder of public opinion should be doubly conscious of their roles towards society, and should use this platform as best way of communication of the Products and services offered rather a detriment.

SELF – REGULATION IN ADVERTISING –  GLOBAL PERSPECTIVE

The Rights of the Consumer…Respected by Industry …Observed by Advertising Practitioners the World over- through Self-Regulation in Advertising.“It is the recognition of the advertising industry (i.e. advertisers, agencies and the media) that advertising should be legal, decent, honest and truthful, with a sense of social responsibility to the consumer and society as a whole, and with due respect to the rules of fair competition.   This is achieved through the establishment of a set of rules and principles of best practice which the advertising industry voluntarily agrees to conform with.The aim is to keep advertising standards high and ensure consumer trust to the benefit to all. Self-Regulation works best when framework legislation sets and enforces the boundaries of what is unlawful. Likewise, the law operates to best effect when it tackles issues of broad principle. Advertising is often detailed and subjective in its claims and interpretation. Controls imposed upon it must be equally flexible…. Self-Regulation Organisations deal with a volume of work each year that, if disputed in court, would be both prohibitively expensive and unacceptably slow to resolve. The law and self-regulation working independently but in harmony, provide the swiftest and most comprehensive protection for consumers”- WFA Global Survey of SROs.
 
 
 
 
March 15th is World Consumer Rights Day 
The UN Guidelines for Consumer Protection, reiterates the Consumer’s Right to Information which would enable the choice to make the most appropriate Buying Decision.
 
 
 

Setting advertising standards in India

Advertising standards and self-regulation by the advertising industry is an important issue, particularly so in a country such as India where we have our share of the vigilante outfits, the self-styled moral brigade who make a hue and cry if they find any ad offensive. To improve our record, we need to compare ourselves to the rest of the world. This does not mean that there is a global barometer which sets standards on which ads are offensive and which are not but the way they do it over there holds some lessons for us.

Some examples

This is not to say that the ASCI doesn’t know it’s opinions. Or that the consumer is taking it all lying down. Complaints are received about flagrantly false and misleading claims. There are usually a number of complaints against almost all types of ads, from cellular operators’ misleading claims, about ads from finance companies promising high returns, to ads of creams and lotions promising the earth.

At times the ASCI dismisses what it feels are frivolous complaints. For example a complaint against the Mirinda Lemon line zor ka jhatka, dheere se lage, was that it was grossly misleading. The ASCI dismissed the case.

Cases relating to intra-industry grievances are common. Fena Ltd. had once lodged a compliant against Hindustan Lever Ltd., for allegedly misleading consumers by making a claim hat it’s Vim was ‘nimbu-yukt’ (with lemon). The ASCI asked HLL for an explanation about this.

EXAMPLES  :-

Rin Vs Tide

Rin Strikes Again. But for the better or worse?

This is the first time that HUL has directly compared Tide with Rin. The ad even have the tagline ” Rin offers better whiteness than Tide”.

P&G has took HUL to court over this ad. The ad was timed to coincide with the long weekend so that HUL could play the ad before the Court hearing.

HUL is currently under severe pressure from its aggressive competitors. The market share of most of HUL brands has come down drastically over the last few years. The brands are facing pressure at all price points. Along with the domestic pressure, HUL is facing the heat from the parent Unilever. The Indian operations is under direct scrutiny by the Unilever CEO Paul Polman.

Last year, HUL tried to restructure its brand portfolio and increased the ad spend on most of the core brands. But it could not arrest the decline of the shares of some key brands to the competitors like P&G, Godrej and ITC.

This desperation has clearly manifested in the latest ad for Rin. What on earth do a brand like Rin get into a direct comparative spat with its competitor. The ET report mentions that the ad was created because HUL executives feel that Tide is slowly neutralizing the whiteness (point of difference) USP of Rin. Hence Rin is trying to tell the consumers that it has more whitening property than Tide using a direct comparison.

Rin chose a wrong way of telling its superiority to the consumer. Last time I saw a direct comparative ad war was betweenHorlicks and Complan. Horlicks started the direct comparative ad and got a very very aggressive reply from Complan. The current status is that Horlicks stopped the comparative ad and Complan is continuing its aggression against Horlicks. It was an unnecessary move from Horlicks which woke up a laid-back competitor like Complan. I think that in that ad war, Complan won over Horlicks not in sales terms but in share of noise.

The same thing is going to happen with Rin. It is going to lose this war primarily because there was no need for a direct comparison with Tide atleast in the ads. . If you observe the ad, 22 seconds of the 30 second ad is dedicated to Tide alone. That means in around 75% of the time, the ad talks about Tide. Interestingly the ad even mentions the USP of Tide as ” It has fragrance and has whitening property”. Then the rest of the 8 seconds talks about Rin. So if HUL has blasted some 30 lakh in the current promo, 22.5 lakh of it was spent on promoting Tide.

Watching the ad, one homemaker commented ” I never knew Tide and Rin was from the same company, otherwise how can they show these two brands together in the same ad? ” .

The current campaign lacks any long term objectives. The brand is choosing a short-term path when the issue was a long-term competitive threat. Instead of spending such money on this crap ad, HUL could have run some serious sales promotional campaigns which could have prompted consumers to opt for Rin. It could have filled the retail outlets with Rin POPs. It could have run retailer campaigns to fill the shelves with Rin rather than Tide. HUL still has a huge distribution reach and strength compared to P&G, it could have won the war hands down had it capitalized on the retailer support alone. If Rin was too worried, it could have bought back Big B as the brand ambassador which could have added punch to the tagline ” Chamakte Rahna”.

Now the outcome of the ad war will be that HUL will be retrained by ASCII or the Court from further playing the ad . It means that Rin had adapted an unethical means against the competitor which will cause an unwarranted blemish on the brand reputation. Second outcome is that it will encourage Tide to be more aggressive in the market. Tide now has been officially and publically acknowledged as the competitor for Rin. Third outcome is that an ad war will start which will benefit the respective advertising agencies and the media.

Advertising council sends notice to HUL over ‘Rin’ ad

Press Trust of India, March 3, 2010 (New Delhi)

Advertising watchdog ASCI on Wednesday said it has issued a notice to FMCG major HUL asking it to ‘substantiate’ in 15 days the claim in a TV commercial that its washing powder ‘Rin’ is better than rival P&G’s ‘Tide’.

Related Stories

“We have asked for HUL’s response. We have give them 15 days period and we will take up the matter on March 23,” Advertising Standards Council of India (ASCI) general secretary Allan Collaco told PTI.

HUL’s TV commercial with a tagline ‘Tide se kahin behatar safedi de Rin’ claims ‘Rin’ is better than ‘Tide’.

According to norms laid down by ASCI, comparisons between brands can be made only when they are scientifically and factually substantiated.

“Now, it is up to HUL to substantiate the claim,” Collaco said. When contacted, HUL denied receiving any notice from ASCI and said the Rin commercial is in line with advertising code followed by the industry. “The claim is factual, accurate and substantiated as it is based on laboratory tests done through globally accepted protocols in independent third party laboratories,” an HUL spokesperson said.

A  P&G spokesperson, on other hand, said, “We are aware of the disparaging advertisement on air against Tide Naturals and have filed a case against the same. The matter is currently being heard in the court and we are not in a position to comment on the outcome.”

What ASCI has to say

When contacted on the issue, Allan Colaco, Secretary-General, ASCI, commented, “According to the ASCI code of conduct, it is fine to show another product. But when a brand makes any such claims that his brand is better than his competitive brand, the company should have proper scientific proof on the same. However, yesterday, we’ve had a meet with the consumer body and post the meet, we have sent a letter to HUL to produce evidence sustaining their claim. We have given them two weeks’ notice. If the evidence is thorough, we keep the ad going.”

When questioned if there was any pre-clearance of such ads before going on air, Colaco stated that there was no such measure as of now as there were countless ads that were aired every day.

The Advertising Agencies Association of India (AAAI)

HISTORY

On September 21, 1945, 60 years ago, Advertising Agencies Association of India (AAAI) was registered as a society in Calcutta. 4 agencies from Calcutta – D J Keymer, General Advertising Agency, J Walter Thomson Co. and Press Syndicate – and 3 agencies from Bombay – Adarts, Lintas and National Advertising Service – were the signatories in the registrar’s office doing the honours. Initially the registered office of the Association was located at 37, Chowringhee, Calcutta. Calcutta, under the British Raj, was a vibrant commercial city. In 1961, the AAAI office was shifted to Bombay.

Till the 80’s, while the Government did not encourage competition, the Government did grudgingly acknowledge the importance of communication in social aspects like in family planning programmes, nutrition, education, the modernization of agriculture and ushering in the green revolution. AAAI Members were called upon to provide support in the Government efforts in some of these critical areas.

The Government also had a healthy respect for AAAI and always consulted it in matters of consequence. For example, it was at AAAI instance that the Government permitted foreign equity holding in ad agencies in the late 80’s.

Whenever required, AAAI has stepped in to protect its business interests to regulate orderliness in the industry. It has been intrumental in restoring the 15% commission/trade discount for Government business in Government owned media, or in lobbying for removal of tax on advertising way back in 1965 and subsequently in 1978 and 1983, or during the most recent Fringe Benefit Tax where advertising and promotion was included as Fringe Benefit!

AAAI’s contribution in regulating the industry is no less significant. In 1987 when TV sponsored programmes became a reality, it determined how the income should be shared between the placing agency and the creative agency. In 1988 and again in 1990, AAAI was actively involved in determining the procedures and policies of the electronic media i.e Doordarshan.

In 1983, AAAI was involved in a serious dialogue with Indian Newspaper Society (INS) when the credit period was proposed to be reduced from 75 to 45 days. Finally we agreed on 60 days, with the rider that “no changes would be made in the Accreditation Rules without mutual consultation and consent” of INS and AAAI. In 1991, when the proposal came to reduce this 60 days to 45 days, it was persuasively defended. Since then INS and AAAI meet regularly with respect to matters that concern both bodies.

AAAI has been behind the National Readership Survey as a joint industry initiative in collaboration with INS and ABC. Having felt the need for a self-regulating body in Advertising, AAAI was highly supportive to the formation of Advertising Standards Council of India (ASCI).

Similarly, AAAI encouraged the formation of Indian Broadcasting Foundation so that it could address the needs of TV channels. About 4 years back, AAAI signed a unique Agreement with IBF, which codified the working relationship between the members of IBF and AAAI in the matter of placing and paying for the ads. This initiative has been a resounding success for both sides.

AAAI enjoys a healthy relationship with Indian Society of Advertisers (ISA). Time and again, AAAI has been called upon by its members to resolve disputes with advertisers for which formal Arbitration proceedings have been conducted. AAAI also assists our members to collect payment from defaulting advertisers.

In summary, AAAI, over the last six decades, has stood by its members and have protected their business interests, be it in dialogue with Government, media bodies or advertisers; AAAI has regulated its members in the orderly conduct of their business affairs, whenever the need arose; And last, but not the least, AAAI provided a platform for training of advertising professionals, recognition of creative work through its coveted Triple-A Awards and honouring outstanding advertising men through its AAAI-Premnarayen Award.

AAAI has thus come a long way from its humble beginnings 60 years ago. But as they say, the future is always more exciting than the past.

AAAI is alive to the changes that the future holds out and the next decade would be a stimulating period, ushering the advertising industry in newer challenges and opportunities.

MISSION- OBJECTIVES

The Advertising Agencies Association of India (AAAI) is the official, national organisation of advertising agencies, formed to promote their interests so that they continue to make an essential and ever-increasing contribution to the nation, by working towards the following objectives:

●      To benefit Indian consumers and to protect their interests by helping ensure that advertising is honest and in good taste.

●      To benefit Indian advertisers by promoting their sales, increasing their sales and increasing productivity & profitability, to stimulate business and industrial activity.

●      To benefit media by establishing sound business practices between advertisers and advertising agencies and each of the various media owners.

●      To benefit the nation by harnessing advertising for the good of the country, its institutions, its citizens; to co-operate with the Government in promoting its social objectives and in the task of nation-building.

●      To question advertising that is wasteful and extravagant; to make it possible for the small entrepreneur to grow through advertising and to compete with the biggest; to encourage market and media research; to serve society by meeting its social responsibilities.

●      To encourage the interest of young individuals in the business of communication, to assist in education and training programmes and to provide information of benefit to members. Non-members are also provided this service for a fee.

●      To establish a common platform in building and sustaining the prestige of the advertising profession and to serve as a spokesman against unwarranted attacks or restrictions on advertising.

●      To establish a forum where representatives of advertisers, advertising agencies, media owners and Government can meet on mutual ground and examine problems of mutual concern.

●      To offer effective co-operation and liaison with Government officials and bodies for the purpose of broadening their understanding of the role of advertisers, advertising and advertising agencies.

●      To co-operate with Government bodies in discussion of matters such as taxes, radio and TV advertising, legislation, political campaign advertising, controls on pharmaceuticals, tobacco or liquor advertising and other subjects of similar complexity and sensitivity.

The AAAI today is truly representative, with a very large number of small, medium and large-sized agencies as its members, who together account for almost 80% of the advertising business placed in the country. It is thus recognised at all forums — advertisers, media owners and associations, and even Government — as the spokesperson for the advertising industry.

TASK

The AAAI’s activities cover all areas of vital importance to the advertising industry. Some of these include:

Government & Public Relations: Improving the image of the advertising industry and focusing on its role in economic development and employment through campaigns, seminars, press relations and direct contact with Government ministries.

IBF/Doordarshan & AIR/Other FM Channels: Protection of members’ interests on issues related to Guidelines and Rules of Commercial Broadcast, Sponsorship, Rates, Commission and Accreditation; working towards full service operations at all TV Channels/Doordarshan Kendras and Radio Channels; setting up an independent monitoring body for commercials.

INS: Protection of members’ interest in matters relating to INS policies, credit periods, Rules for Accreditation and streamlined operations; promotion of better production values and effective advertising purchases.

Professional Practices: Improving the quality of professional relationships between Agencies and Clients through seminars, the AAAI Handbook and the evolution of uniform guidelines, codes and norms.

Client Disputes: Helping settle disputes through evolution of guidelines, procedures and uniform practices; mediating between agency-client, agency-agency and agency-media to ensure quick resolution of disputes.

Statutes and Laws: Constantly examining all relevant laws and statutes affecting the advertising industry including ESIS, Sales Tax, other taxes, Arbitration, MRTP guidelines; seeking professional advice and presenting a common viewpoint at relevant forums to protect members’ interests; pursuing new avenues like Credit Insurance cover, etc.

Training & Development: Organising seminars and workshops on effective advertising skills in creative, copy-writing, print and production, client servicing, television production, media operations, media planning, advertising as a career, etc; maintaining a fully-stocked reference library with a reprint service for members.

Member Communications: Constantly communicating with members through circulars and correspondence; periodic publication of an updated membership directory, regular regional meetings for members and their employees.

Public Service: Offering the services of the Association and members in significant projects, e.g. for Family Planning, the National Wastelands Development Board, Gujarat Earthquake relief, etc; encouraging the creation of such advertising by members. There are innumerable instances of successful AAAI activities, with benefits to the entire advertising industry and all others associated with it.

STRUCTURE

The AAAI functions through the active, voluntary services of a President, a Vice-President, an Honorary Secretary, an Honorary Treasurer and an Executive Committee assisted by a full-time Secretary-General and his staff. The Association maintains a permanent office, which is located at: 35 Maker Tower ‘F’, 3rd Floor, Cuffe Parade, Mumbai 400 005.

Conventionally, a very senior agency person represents each member agency in the AAAI.

The President and other office-bearers are elected every year by the General Body, which comprises all representatives of member agencies. In addition, some Executive Committee Members are co-opted to the Executive Committee and an effort is made to ensure that all zones and groups of agencies (by size) are represented on this Committee.

Assisting the above groups are various Sub-committees, each looking after specific activity areas of the Association, and Regional Convenors who co-ordinate members’ activities in different regions of the Country.

The Executive Committee, the Regional Convenors and various Sub-Committees meet very regularly and information is constantly shared with all members.

The AAAI is thus a true association, in the sense that nearly half of all members are directly involved with one or more of the active committee groups and the remaining members are in touch through direct communication.

Do’s and Don’ts for Indian Advertisers – Codes laid down by AAAI (Association of Accredited Advertisers of India)

Don’ts

Individual media and media groups should preferably establish their own codes of ethics. Some newspapers and magazine refuse to publish advertisements for tobacco and alcohol beverages. Most of them investigate the reliability of the advertisers before accepting their copy.

●      Do not possess, sell, and let to hire or otherwise promote circulation of any harmful publication involving Young person in any part of India. (Young Persons (Harmful Publications Act, 1956).

●      No Prize competition for prizes exceeding Rs.1000/- a month should be held without a license.

●      Advertisements – textual, pictorial, graphical or otherwise should not generate hatred, contempt or dissatisfaction towards Government or between different classes of citizens in India.

●      Do not use in advertisement the name, emblem or official seal of the United Nations and of some of the specialized agencies, and also Indian National Flag, the name and emblem or official seal of Government of India, or Supreme, High Courts, Rashtrapathi Bhuvan, Pictorial representation of The President and the Prime Minister of India without the written permission for the concerned dept and the officials.

●      Avoid use of unauthorized use in the advertisement another organization’s trademark. This may attract civil and criminal liabilities.

●      Advertisement should not carry any misleading information regarding usages and magical cures of certain diseases.

●      Advertisement to get protection under Copyright Act, 1957 must be original. So it must not be copied from another or must not be from public domain.

●      No representation of women in an indecent and Obscene manner.

●      Do not claim orally; through advertisement or by way of a product label your product to be of quality, which it does not possess. You will be held responsible for canvassing products of less purity.

●      Advertisers not to quote the name of Indian Government Agency responsible for conducting, analyzing or carrying out any research related matters.

●      You are not to willfully disobey any order, decree, judgment or process of the court – it shall amount to contempt of court.

●      Advertisement should not violate the rights of consumers in regard to safeguarding them from exploitation, or stop consumers seeking redressal against unfair trade practices from Consumer Councils.

●      Under the Representation of People Act, publicity, propaganda in any way in connection with the election should not be carried out or entertained 48 hrs before the commencement of the election.

●      Do not publish; advertise objectionable, unethical advertisements encouraging self-medication and self-treatment.

●      Do not be a party to pasting bills in public places.

●      Do not put the advertisement directly or indirectly interfering with other’s property, privacy, obstructing their views etc.

●      Don not obstructs a place to which the public has an access, nor should erect dangerous structure near the highway.

●      Do not publish advertisement with obscene pictures meant merely to make money by titillating the sex feelings of adolescents and adults among whom the newspaper circulates or which constitute unwholesome exploitation of sex for money.

●      No misleading advertisement relating to magical cures by quacks and tantriks.

●      No advertisements relating to eateries invoking god’s names.

●      Not to issue advertisement like “Dial-a-friend – Enjoy”, in order to corrupt young minds.

●      Not to use the name of famous personalities, Institutions, which could be seen in poor, light or bring them in some sort of disrepute.

●      Not to publish irrelevant maps, pictorial representation without actual verifications as to the scale etc.

Do’s

●      Self-regulation by the advertising industry is better than State Control.

●      Advertising trade association should be mainly concerned with maintaining high standard.

●      Radio and television should cooperate closely to avoid permitting advertising that may cause unfavorable social reactions.

●      Newspapers should publish tariff charged for each advertisement to ensure that no unusual fee over and above market rate are charged.

●      Newspapers to make sure that all issues carry the advertisements in all their editions.

●      Editors should own full responsibilities for advertisements and editorial maters published in their newspapers.

●      Editors to assert their right to accept or reject advertisements especially to those, which cross the line of decency.

●      Abide by the Doordarshan and AIR Advertising codes.

Puffery

It literally means ‘puffing’ up a product or exaggerating its qualities. Since this does not fall under the legal purview, it has become an ethical issue.

Rules of Advertising

  1. Advertising should be designed as to conform not only to the laws but not also to the moral and aesthetic sentiments of the country in which it is published.
  2. No advertisement likely to bring advertising into contempt or disrepute should be permitted. Advertising should not take advantage of the superstition or credulity of the general public.
  3. Advertising should tell the truth and avoid distorting facts and misleading by means of implication and omissions. For instance it should not mislead the consumer by false statements as to:
  1. The character of the merchandise – i.e.: its utility, material, ingredients, origin.
  2. The price of the merchandise or its value, its suitable or the terms of the purchase.
  3. The service, accompanying purchase, including delivery exchange, return, repair, upkeep.
  4. Personal recommendations of the article or service. Testimonials which are fictitious or the originals of which cannot be produced must not be used. Anyone using testimonials in advertisements is as responsible for the statements made in them as he would be if he had made them himself.
  5. The equality of the value of competing goods or the trustworthiness of statements made by others.
  6. No advertisement should be permitted to contain any claim so exaggerated as to lead inevitably to disappoint in the mind of the consumer. Special care is called for in the case of:
  1. Advertisement addressed to those suffering from illness.
  2. No such advertisements should hold out the promise of cure for serious disease nor contain any statement calculated to injure the health of the sufferer by dissuading him or her from seeking a medical advice or otherwise.
  3. Advertisements inviting the public to invest money should not contain statements which may mislead the public in respect of the security offered, rates of return or terms of amortization.
  4. Advertisements inviting the public to take part in lotteries or competitions with prize or which hold out the prospect of gifts.

Such advertisements should state clearly all the conditions for the lottery or competition or the conditions for the distribution of the gifts. Virtually every product is puffed up. Terms like “The Best” or “The Greatest” were sales talk. Everyone knows that “Wonder Bread” is not really a wonder, and “The Greatest show on Earth” is not what everyone considers the greatest. Puffery, therefore, was a form of opinion statement and not regulated. Some observers have expressed concern that the “Puffery defense” was a loophole through which many deceptive claims fell. The commission has been criticized for allowing deceptive claims to clip through under the guise of puffery.

Puffery can be defined as:

  1. Reasonable people do not believe to be true product qualities and
  2. Incapable of being proved either true or false

Consequently, if deception is the creation of a false belief about the product in the mind of a consumer, claims that fall into the definition of puffery cannot be deceptive. By definition such claims can be neither false nor can they create belief. Puffery has generally viewed as a form of poetic license. Consumers are aware of the exaggeration and do not believe it. Some argue that puffery has a detrimental effect on consumers’ purchase decisions and that should be illegal.

Political Advertising

Political campaign is organized effort to secure nomination and election of candidates. A political ad means an announcement or message of any form which is broadcast in return of payment by a candidate in elections. It does not include letters to editors, news or features articles or editorial comments. The essential task of political advertising is to gain the confidence of the people and influence their vote. Political advertising raises many questions concerning the funding of political campaigns, the reality of political claims and the likelihood of slanderous or libelous claims made by political candidates.

The amount spent on political campaigns is still small compared with commercial advertising. Political advertising frequently engages in comparative advertising in which opposing candidate programmes and performance are criticized and ridiculed. Political ads are generally perceived as partially true and often dismissed as dishonest. Political ads must get results in a short period of time. Campaign costs have become enormous parties and candidates need to raise a lot of money. Financial contributions by corporations have been restricted by law.

Political advertising is subject to different rules than ads for commercial products and services. Because “political speech” is widely acknowledged as the core reason behind the free speech as the most valuable (and hence, most protected) form of speech. Political advertising is both advertising and political speech, but since it does not fall within the definition of “commercial speech” it is considered political speech and receives the highest degree of protection under the first Amendment. The use of professional agency for a political campaign in India dates back to the 1980’s when Rajiv Gandhi used one.

Political advertising is not wholly unregulated though. It is subject to some minor restraint under the Federal Communications Commission’s Equal Access law and under the Federal Election Act. Also, most states have some laws that apply to political advertising, though most of those restrictions never have been tested for constitutionality and they are largely uninformed. At this point little information specifically dealing with political advertising has been posted on the Internet. Political parties are beginning to see the value of scientific planning and marketing techniques as they go into elections. It is a lethal weapon of manipulating minds, used by political parties and has become aggression in recent years.

Political advertising associated with elections to government offices has been the focus of much consumer and voter criticism. It is characterized by advertising in which one opponent launches a vicious and degrading attack in the ethics and morals or law breaking behavior of the other followed by counter attack by his or her opponent of similar kind. This type of political advertising is often used as a very visible example of bad taste in mass communication and adding further to the general cynicism of voter attitudes towards politicians and government. The problem is that advocates of the negative advertising strategy have shown that in many instances it works. It has been shown that negative advertising can be effective in accomplishing a primary objective, like winning an election, but it can also result undesirable secondary side effects such as increasing cynical attitudes about politics & politicians.

The Indecent Representation of Women (Prohibition) Act 1986

It is an act to prohibit indecent representation of women through ads or publication, writings, paintings, figures or in any other manner. It extends to the whole of India, except the State of Jammu and Kashmir. No person shall publish or cause to be published, or arrange to take part in the publication or exhibition of, any ad which contains indecent representation of women in any form. It acts in prohibition of publication or sending by post of books, pamphlets, slide, films, drawing, photographs, etc. containing indecent representation of women. The act will not apply of the prohibition is proved to be justified on the grounds that such book, pamphlet, etc. is in the interest of science literature, art or learning.

Any representation sculptured, engraved, painted or otherwise represented on or in:

  1. Ancient monument
  2. Any temple of any car used in the conveyance of idols or kept or used for religious purpose

Definitions

  1. “Advertisement” any notice, circular, label, wrapper or other documents, any visible representation made by sound, smoke or gas.
  2. “Indecent” means depiction in any manner of the figure of a woman in such a way that is derogatory and or denigrating women, or is likely to deprave, corrupt or injure the public morality.

Introduction & Definition of Consumer Protection Act

A consumer is a user of goods and services. Any person paying for goods and services, which he uses, is entitled to expect that the goods and services be of a nature and quality promised to him by the seller.

The earlier principle of “Caveat Emptor” or “let the buyer beware” which was prevalent has given way to the principle of “Consumer is King”. The origins of this principle lie in the fact that in today’s mass production economy where there is little contact between the producer and consumer, often sellers make exaggerated claims and advertisements, which they do not intend to fulfill. This leaves the consumer in a difficult position with very few avenues for redressal. The onset on intense competition also made producers aware of the benefits of customer satisfaction and hence by and large, the principle of ” consumer is king” is now accepted.

The need to recognize and enforce the rights of consumers is being understood and several laws have been made for this purpose. In India, we have the Indian Contract Act, the Sale of Goods Act, the Dangerous Drugs Act, the Agricultural Produce (Grading and Marketing) Act, the Indian Standards Institution (Certification Marks) Act, the Prevention of Food Adulteration Act, the Standards of Weights and Measures Act, the Trade and Merchandise Marks Act, etc which to some extent protect consumer interests. However, these laws required the consumer to initiate action by way of a civil suit, which involved lengthy legal process proving, to be too expensive and time consuming for lay consumers. Therefore, the need for a more simpler and quicker access to redressal to consumer grievances was felt and accordingly, it lead to the legislation of the Consumer Protection Act, 1986.

Objects of the Consumer Protection Act, 1986

The preamble to the Act states that the Act is legislated to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumer’s disputes and for matters connected therewith.

The basic rights of consumers as per the Consumer Protection Act (CPA) are

1. The right to be protected against marketing of goods and services, which are hazardous to life and property

2. The right to be informed about the quality, quantity, potency, purity, standard and price of goods, or services so as to protect the consumer against unfair trade practices

3. The right to be assured, wherever possible, access to variety of goods and services at competitive prices

4. The right to be heard and be assured that consumers’ interests will receive due consideration at appropriate forums

5. The right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers

6. The right to consumer education

The CPA extends to the whole of India except the State of Jammu and Kashmir and applies to all goods and services unless otherwise notified by the Central Government.

Definitions of Important Terms

Before studying the provisions of the CPA, it is necessary to understand the terms used in the Act. Let us understand some of the more important definitions.

Complainant means: –

1. A consumer; or

2. Any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force; or

3. The Central Government or any State Government, who or which makes a complaint; or

4. One or more consumers where there are numerous consumers having the same interest

Complaint means any allegation in writing made by a complainant that: –

1. An unfair trade practice or a restricted trade practice has been adopted by any trader

2. The goods bought by him or agreed to be bought by him suffer from one more defects

3. The services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect

4. The trader has charged for the goods mentioned in the complaint a price excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods.

5. Goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force, requiring traders to display information in regard to the contents, manner and effect of use of such goods; with a view to obtaining any relief provided by law under the CPA.

Consumer means any person who: –

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment (eg hire purchase or installment sales) and includes any other user of such goods when such use is made with the approval of the buyer, but does not include a person who obtains such goods for resale or for any commercial purpose; or

2. Hires or avails of any services for a consideration which has been paid or promised, or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services when such services are availed of with the approval of the first mentioned person

For the purposes of this definition “commercial purpose” does not include use by a consumer of goods bought and used be him exclusively for the purpose of earning his livelihood by means of self-employment.

Goods means goods as defined in the Sale of Goods Act, 1930. Under that act, goods means every kind of movable property other than actionable claims and money and includes stocks and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

Service is defined to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.

Consumer dispute means dispute where the person against whom a complaint has been made, denies or disputes the allegation contained in the complaint.

Restrictive Trade Practice means any trade practice which requires a consumer to buy, hire, or avail of any good or as the case may be, services as a condition precedent for buying, hiring or availing of any other goods or services.

Unfair Trade Practice means unfair trade practice as defined under the Monopolies and Restrictive Trade Practices Act. The MRPT act has defined certain practices to be unfair trade practices. Details read along with MRTP Act.

Defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trade in any manner whatsoever in relation to any goods.

Deficiency means any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Consumer Protection Councils

The interests of consumers are enforced through various authorities set up under the CPA. The CPA provides for the setting up of the Central Consumer Protection Council, the State Consumer Protection Council and the District Forum

Central Consumer Protection Council

The Central Government has set up the Central Consumer Protection Council, which consists of the following members: –

(a) The Minister in charge of Consumer Affairs in the Central Government who is its Chairman, and

(b) Other official and non-official members representing varied interests

The Central council consists of 150 members and its term is 3 years. The Council meets as and when necessary but at least one meeting is held in a year.

State Consumer Protection Council

The State Council consists of: –

(a) The Minister in charge of Consumer Affairs in the State Government who is its Chairman, and

(b) Other official and non-official members representing varied interests

The State Council meets as and when necessary but not less than two meetings must be held every year.

Redressal Machinery under the Act

The CPA provides for a 3-tier approach in resolving consumer disputes. The District Forum has jurisdiction to entertain complaints where the value of goods / services complained against and the compensation claimed is less than Rs. 20 lakhs, the State Commission for claims exceeding Rs. 20 lakhs but not exceeding Rs. 1 Crores, and the National Commission for claims exceeding Rs. 1 Crores.

District Forum

Under the CPA, the State Government has to set up a district Forum in each district of the State. The government may establish more than one District Forum in a district if it deems fit. Each District Forum consists of: –

(a) A person who is, or who has been, or is qualified to be, a District Judge who shall be its President

(b) Two other members who shall be persons of ability, integrity and standing and have adequate knowledge or experience of or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman.

Appointments to the State Commission shall be made by the State Government on the recommendation of a Selection Committee consisting of the President of the State Committee, the Secretary – Law Department of the State and the secretary in charge of Consumer Affairs

Every member of the District Forum holds office for 5 years or up to the age of 65 years, whichever is earlier and is not eligible for re-appointment. A member may resign by giving notice in writing to the State Government whereupon the State Government will fill up the vacancy.

The District Forum can entertain complaints where the value of goods or services and the compensation, if any, claimed is less than rupees five lakhs. However, in addition to jurisdiction over consumer goods services valued up to Rs. 5 lakhs, the District Forum also may pass orders against traders indulging in unfair trade practices, sale of defective goods or render deficient services provided the turnover of goods or value of services does not exceed rupees five lakhs.

A complaint shall be instituted in the District Forum within the local limits of whose jurisdiction –

(a) The opposite party or the defendant actually and voluntarily resides or carries on business or has a branch office or personally works for gain at the time of institution of the complaint; or

(b) any one of the opposite parties (where there are more than one) actually and voluntarily resides or carries on business or has a branch office or personally works for gain, at the time of institution of the complaint provided that the other opposite party/parties acquiescence in such institution or the permission of the Forum is obtained in respect of such opposite parties; or

(c) The cause of action arises, wholly or in part.

State Commission

The Act provides for the establishment of the State Consumer Disputes Redressal Commission by the State Government in the State by notification. Each State Commission shall consist of: –

(a) A person who is or has been a judge of a High Court appointed by State Government (in consultation with the Chief Justice of the High Court) who shall be its President;

(b) Two other members who shall be persons of ability, integrity, and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom must be a woman.

Every appointment made under this hall is made by the State Government on the recommendation of a Selection Committee consisting of the President of the State Commission, Secretary -Law Department of the State and Secretary in charge of Consumer Affairs in the State.

Every member of the District Forum holds office for 5 years or up to the age of 65 years, whichever is earlier and is not eligible for re-appointment. A member may resign by giving notice in writing to the State Government whereupon the State Government will fill up the vacancy.

The State Commission can entertain complaints where the value of goods or services and the compensation, if any claimed exceed Rs. 5 lakhs but does not exceed Rs. 20 lakhs;

The State Commission also has the jurisdiction to entertain appeal against the orders of any District Forum within the State

The State Commission also has the power to call for the records and appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State if it appears that such District Forum has exercised any power not vested in it by law or has failed to exercise a power rightfully vested in it by law or has acted illegally or with material irregularity.

National Commission

The Central Government provides for the establishment of the National Consumer Disputes Redressal Commission The National Commission shall consist of: –

(a) A person who is or has been a judge of the Supreme Court, to be appoint by the Central Government (in consultation with the Chief Justice of India) who be its President;

(b) Four other members who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman

Appointments shall be by the Central Government on the recommendation of a Selection Committee consisting of a Judge of the Supreme Court to be nominated by the Chief Justice of India, the Secretary in the Department of Legal Affairs and the Secretary in charge of Consumer Affairs in the Government of India.

Every member of the National Commission shall hold office for a term of five years or up to seventy years of age, whichever is earlier and shall not be eligible for reappointment.

The National Commission shall have jurisdiction: –

a.      To entertain complaints where the value of the goods or services and the compensation, if any, claimed exceeds rupees twenty lakhs:

b.      To entertain appeals against the orders of any State Commission; and

(c) To call for the records and pass appropriate orders in any consumer dispute which is pending before, or has been decided by any State Commission where it appears to the National Commission that such Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

Complaints may be filed with the District Forum by: –

1. The consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided

2. Any recognized consumer association, whether the consumer to whom goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided, is a member of such association or not

3. One or more consumers, where there are numerous consumers having the same interest with the permission of the District Forum, on behalf of or for the benefit of, all consumers so interested

4. The Central or the State Government.

On receipt of a complaint, a copy of the complaint is to be referred to the opposite party, directing him to give his version of the case within 30 days. This period may be extended by another 15 days. If the opposite party admits the allegations contained in the complaint, the complaint will be decided on the basis of materials on the record. Where the opposite party denies or disputes the allegations or omits or fails to take any action to represent his case within the time provided, the dispute will be settled in the following manner: –

I. In case of dispute relating to any goods: Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, a sample of the goods shall be obtained from the complainant, sealed and authenticated in the manner prescribed for referring to the appropriate laboratory for the purpose of any analysis or test whichever may be necessary, so as to find out whether such goods suffer from any other defect. The appropriate laboratory’ would be required to report its finding to the referring authority, i.e. the District Forum or the State Commission within a period of forty- five days from the receipt of the reference or within such extended period as may be granted by these agencies.

Appropriate laboratory means a laboratory or organization: –

(I) Recognized by the Central Government;

(ii) Recognized by a State Government, subject to such guidelines as may be prescribed by the Central Government

(iii) Any such laboratory or organization established by or under any law for the time being in force, which is maintained, financed or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect.

The District Forum / State Commission mav require the complainant to deposit with it such amount as may be specified towards payment of fees to the appropriate laboratory for carrying out the tests. On receipt of the report, a copy thereof is to be sent by District Forum/State Commission to the opposite party along with its own remarks.

In case any of the parties disputes the correctness of the methods of analysis/test adopted by the appropriate laboratory, the concerned party will be required to submit his objections in writing in regard to the report. After giving both the parties a reasonable opportunity of being heard and to present their objections, if any, the District Forum/Slate Commission shall pass appropriate orders.

II. In case of dispute relating to goods not requiring testing or analysis or relating to services: Where the opposite party denies or disputes the allegations contained in the complaint within the time given by the District Forum / State Commission, it shall dispose of the complaint on the basis of evidence tendered by the parties. In case of failure by the opposite party to represent his case within the prescribed time, the complaint shall be disposed of on the basis of evidence tendered by the complainant.

Limitation period for filing of complaint

The District Forum, the State Commission, or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. However, where the complainant satisfies the District Forum / State Commission, that he had sufficient cause for not filing the complaint within two years, such complaint may be entertained by it after recording the reasons for condoning the delay.

Powers of the Redressal Agencies

The District Forum, State Commission and the National Commission are vested with the powers of a civil court under the Code of Civil Procedure while trying a suit in respect of the following matters: –

1. The summoning and enforcing attendance of any defendant or or witness examining the witness on oath;

2. The discovery and production of any document or other material producible as evidence;

3. The reception of evidence on affidavits:

4. The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

5. Issuing of any commission for the examination of any witness; and

6. Any other matter, which may be prescribed.

Under the Consumer Protection Rules, 1987, the District Forum, Commission and the National Commission have the power to require any person: –

(I) To produce before, and allow to be examined by an officer of any authorities, such books of accounts, documents or commodities as may be required and to keep such book, documents etc. under its custody for the purposes of the Act;

(ii) To furnish such information which may be required for the purposes to any officer so specified.

They have the power to: –

(I) To pass written orders authorizing any officer to exercise power of entry and search of any premises where these books, papers, commodities, or documents are kept if there is any ground to believe that these may be destroyed, mutilated, altered, falsified or secreted. Such authorized officer may also seize books, papers, documents or commodities if they are required for the purposes of the Act, provided the seizure is communicated to the District Forum / State Commission / National commission within 72 hours. On examination of such documents or commodities, the agency concerned may order the retention thereof or may return it to the party concerned.

(ii) To issue remedial orders to the opposite party.

(iii) To dismiss frivolous and vexatious complaints and to order the complainant to make payment of costs, not exceeding Rs. 10,000 to the opposite party.

Remedies Granted under the Act

The District Forum / State Commission / National Commission may pass one or more of the following orders to grant relief to the aggrieved consumer: –

1. To remove the defects pointed out by the appropriate laboratory from goods in question;

2. To replace the goods with new goods of similar description, which shall be free from any defect;

3. To return to the complainant the price, or, as the case may be, the charges paid by the complainant;

4. To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to negligence of the opposite party;

5. To remove the defects or deficiencies in the services in question;

6. To discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;

7. Not to offer the hazardous goods for sale:

8. To withdraw the hazardous goods from being offered for sale:

9. To provide for adequate costs to parties.

Appeals

Any person aggrieved by an order made by the Forum may prefer an appeal to the State Commission in the prescribed form and manner. Similarly, any person aggrieved by any original order of the State Commission may prefer an appeal to the National Commission in the prescribed form and manner. Any person aggrieved by any original order of the National Commission may prefer an appeal to the Supreme Court.

All such appeals are to be made within thirty days from the date of the order provided that the concerned Appellate authority may entertain an appeal after the said period of thirty days if it is satisfied that there was sufficient cause for not filling it within that period. The period of 30 days is to be computed from the date of receipt of the order by the appellant.

Where no appeal has been preferred against any of the orders of the authorities, such orders would be final. The District Forum, State Commission or National Commission may enforce respective orders as if it were a decree or order made by a Court and in the event of their inability to execute the same; they may send the order to the Court for execution by it as if it were a Court decree or order.

Penalties

Failure or omission by a trader or other person against whom a complaint is made or the complainant to comply with any order of the State Commission or the National Commission shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to 3 years, or with fine of not less than Rs. 2,000 but which may to Rs. 10000 or with both.

However, if it is satisfied that the circumstances of any case so requires, then the District Forum or the State Commission or the National Commission may impose a lower fine or a shorter term of imprisonment.

Important Consumer Law Cases

1. No compensation for defective machines purchased for manufacturing activities In the case of Abbay Chemicals Pvt. Ltd. v. Kanti Bhai D. Patel, the National Commission held that no compensation could be awarded in respect of defects of a machine worth more than Rs. 10 lakhs, purchased for use in large scale manufacturing activity, since the purchase would be for a commercial purpose and the buyer in such case would not be a consumer under the Consumer Protection Act. Similar decision was given in the case of Synco Textiles Pvt Ltd. v. Greaves Cotton & Co. Ltd.

2. Highly inflated electricity bills and defective electricity meter In the case of Y N Gupta vs. DESU, the National Commission considered a complaint regarding the inflated electricity bills served by DESU on the complainant. In this case, DESU did not raise bills in keeping with the cycle normally adopted. It also did not replace the defective meter. However, it slapped the bill for over Rs. 1.06 lacs for a period from 21st December 1988 to 25th March 1990. The power connection was also disconnected but restored after making a complaint to the General Manager. The National Commission ruled that it was difficult to envisage a situation where the consumer could have utilized over 1 lakh units of electricity and the expect a poor consumer to pay bills of over a lakh. The National Commission ruled that the bills were casualty prepared. DESU did not have the authority to raise bills upon a defective meter beyond six months under the Electricity Act, 1910. In these circumstances, the National Commission concluded that there was deficiency in services on the part of DESU and awarded a compensation of Rs.30000 and costs of Rs. 5,000.

3. Government servants not doing any service tor consideration but a statutory function In the case of S.P. Goel v. Collector of Stamps, it was held that a government official does not render any service in the course of doing his statutory duties. Hence, no remedy can be granted under the CPA. In this case, the complainant presented before the Sub-Registrar a document claiming it to be a will for registration. The Sub-registrar did not register the document claiming it to be a deed of conveyance and hence not adequately stamped. He impounded the document and sent it to the Collector of Stamps for action. Despite several notices issued to him by the Collector, the appellant did not appear before him. When the appellant appeared before the Collector he was asked to furnish certain other documents. In the meantime, however, the appellant filed a complaint before the District Forum under the Consumer Protection Act alleging harassment by the Sub-Registrar and Collector and had prayed for compensation being awarded to him.

The District Forum held the view that the appellant having paid registration fees, he shall be treated to have hired the services of the Sub-Registrar and the Collector and since the Collector had not taken any decision as to the nature of the document for about six years, allowed compensation to be paid to the complainant.

On appeal by the Collector, the State Commission upheld the order of the District Forum and enhanced the compensation to Rs. 5,000.

On the revision petition filed by the Collector, the National Commission held the view that the appellant was not a “consumer” under the CPA. Because there was no hiring of services by the complainant for consideration and because a government official doing his duty as functionary of the State under law could not be said to be rendering a service to the complainant. It stated that assuming the Collector was discharging a service, he was doing the same as a functionary of the government under the authority of the statute and for the benefit of the revenue for which he was being paid by the Government and not by the complainant.

The Supreme Court upheld the order of the National Commission on appeal.

4. Maintenance of Guesthouse – Not for commercial purpose In the case of J.K. Puri Engineers v. Mohan Breweries & Distilleries Ltd, it was held that a guesthouse maintained for company officials is not for commercial purposes and hence benefit under the CPA can be availed of. The company maintained a guest house for use of its managing director and other executives. It entered into a contract with the appellants for the installation of a central air-conditioning system. The company alleged that the system installed did not properly, developed snags, and that there was leakage of water from the dusting system. The appellant having failed to make good the defects, the complainant appointed a consultant and obtained from him a report on the working of the system, which pointed out a number of defects. The State Commission held that the complainant was a consumer under the CPA and that the air-conditioning system had not been installed for a commercial purpose because the guesthouse was not maintained for a commercial purpose. The National Commission upheld the decision of the State Commission.

5. Failure to deliver houses by the housing board is deficiency in service. In the case of S.P. Dhavaskar v/s Housing Commissioner, Kamataka Housing Board & Vice Versa, the complainant had made a deposit of Rs. 1.66 lakhs with the Housing Board for a house proposed to be built by the Board. He was told that the construction be completed within two years from March 1987. In March, 1992 he was informed that the construction was not up to the expected level because of the use of low cost technology and that the houses constructed developed distress and might not long and suggested that the complainant might take back the amount of deposit without interest or opt for a new house in lieu of the house already allotted. The complainant made a claim of Rs. 4.65 lakhs, which was rejected. The State Commission held that the act of the Housing Board amounted to a deficiency in service and returning deposit amount without interest was unreasonable and ordered payment of interest at 18% p.a. In appeal, the National Commission upheld the order of the State Commission.

6. Failure to provide basic safeguards in the swimming pool amounted to deficiency in service. In the case of Sashikant Krishnaii Dole v. Shitshan Prasarak Mandali, the National commission held that failure to amount basic safeguards in the swimming pool amounts to deficiency in service. A school owned a swimming pool and offered swimming facilities to the public on payment of a fee. The school conducted winter and summer training camps to train boys in swimming and for this purpose engaged a trainer/coach. The complainants had enrolled their only son for learning swimming under the guidance of the coach. It was alleged that due to the negligence of the coach, the boy drowned and died. The school denied any responsibility on its part. The coach claimed that he had considerable experience in coaching young boys is swimming. When the deceased was found to have been drowned, the coach immediately took him out of the water and removed the water from his stomach and gave him artificial respiration and thereafter took him to a doctor. The doctor advised that the boy be taken to the nearest hospital where the boy died. The State Commission held the school and the coach deficient in rendering service to the deceased. On appeal, the order was upheld by the National Commission.

7. Failure to settle provident fund claim in time amounts to deficiency in service. In the case of Regional Provident Fund Commissioner, Faridabad v. Shiv Kumar Joshi, it was held that failure to settle provident fund dues on time amounts to deficiency in service.

8. Removal of ladder of an aircraft while disembarking by the passenger amounts to deficiency in service. In the case of Station Manager, Indian Airlines v. Dr. Jiteswar Ahir, the National Commission held that removal of ladder while a passenger was disembarking, leading to injury to the passenger amounted to deficiency in service. The complainant after he was seated on the plane was intimated by announcement that part of his luggage was lying on the ground unidentified. He moved towards the door and finding that the ladder was in place, tried to get down. But before he could get his entire body on the ladder, the ladder was moved as a result of which of which he fell to the ground and sustained injuries. The passenger demanded compensation of Rs. 10 lakhs from the Airline. The Airline was willing to pay Rs. 40000/-, which was the maximum amount payable under the Carriage by Air Act, 1972. The State Commission ordered a compensation of Rs. 4 lakhs and Rs. 1 lakh for mental agony and distress plus costs. The order of the State Commission was upheld by the National Commission.

9. Imparting education is not a service. In the case of Chairman, Board of Examinations v. Mohideen Abdul Kader, the complainant, a student who wished to appear in the subject of production technology was denied permission to write that paper by the hall supervisor on the ground that his name appeared against Code No. 2 while the paper fell under Code No. 1. He alleged that he was wrongly restrained and prevented from writing the examination on that day because of the attitude and negligence of the the staff and therefore he claimed compensation for the inconvenience caused to him. The National commission in its order stated that a candidate who appeared for an examination could not be regarded as a person who had hired or availed of the services of the university or board for consideration. Therefore he was not a consumer under the Consumer Protection Act and no compensation was awarded.

10. In the case of Poonam Verma v/s Ashwin Patel, it was held that a doctor qualified under the homeopathic system of medicines treats a patient with allopathic medicines, he is guilt of negligence and compensation is due if the patient dies on such account.

11. In the case of Bharathi Knitting Co. v. DHL Worldwide Express Courier Division of Airfreight Limited, it was held that the liability of the courier company in case of delayed delivery of articles was limited to the amount of damages agreed to under the contract. In the case of Devi Engineering Co v/s Union of India, it was held that the Post Office was not liable for wrong delivery of registered postal articles.

12. In the case of Department of Posts & Telegraphs v. Dr. R.C. Saxena, it was held that there is deficiency in service where the Post Office refuses to pay interest on deposits simply by invoking technical rules. In February 1988 the consumer opened a national savings scheme account in the General Post Office in Lucknow. In March 1989 he opened a similar account at Chamba (H.P.) depositing Rs. 90,000. On his retirement from service he got both accounts transferred to Kangra. When he wanted to close the account by withdrawing the balance, the post office refused to grant him interest on the Rs.90000 deposited by him in his second account on the ground that under the NSS rules, one person can have only one NSS account. The National Commission held that the opening of the second account was merely an irregularity not amounting to contravention of the rules and that the investor was entitled to interest on the second deposit.

13. In the case of Union of India v/s Nathmal Hansaria, it was held that the railways are liable for deficiency in service when a person passing through the inter connecting passage way between two compartments of a train fell down resulting in death.

14. In the case of Harshad J Shah v/s Life Insurance Corporation of India, it was held that the Life Insurance Corporation could not be held liable for lapse in policy due to non-payment of premium even if the premium was paid on time to the agent of LIC but was not paid by him to the LIC within the prescribed time.

Naomi Klein (born May 8, 1970) is a Canadian journalist, author and activist known for her political analyses and criticism of corporate globalization. Klein spent her teenage years as a mall rat, obsessed with designer logos. As a child and teenager, she found it “very oppressive to have a very public feminist mother” and she rejected politics, instead embracing “full-on consumerism”. She credits two crises with changing her outlook. First of all, when she was 17 and preparing for the University of Toronto, her mother had a stroke and became severely disabled. Naomi, along with her father and brother, took care of Bonnie through the period in hospital and at home, making educational sacrifices to do so. That year off stopped her “from being such a brat”.

In 2000, Klein published the book No Logo, which for many became a manifesto of the anti-corporate globalization movement. In it, she attacks brand-oriented consumer culture by describing the operations of large corporations. She also accuses several such corporations of unethically exploiting workers in the world’s poorest countries in pursuit of greater profits. In this book, Klein criticized Nike so severely that Nike published a point-by-point response to perceived inaccuracies. No Logo became an international bestseller, selling over one million copies in over 28 languages.

First published by Knopf Canada in January 2000, shortly after the 1999 WTO Ministerial Conference protests in Seattle had generated media attention around such issues; it became one of the most influential books about the anti-globalization movement and an international bestseller. The book focuses on branding, and often makes connections with the anti-globalization movement. Throughout the four parts (No Space, No Choice, No Jobs, and No Logo), Klein writes about issues such as sweatshops in the Americas and Asia, culture jamming, corporate censorship, and Reclaim the Streets. She pays special attention to the deeds and misdeeds of Nike, The Gap, McDonalds, Shell, and Microsoft and their lawyers, contractors, and advertising agencies. Many of the ideas in Klein’s book derive from the influence of the Situationists, an art/political group founded in the late 1950s. The book is divided into four sections: No Space, No Choice, No Jobs, and No Logo. The first three deal with the negative effects of brand-oriented corporate activity, while the fourth discusses various methods people have taken in order to fight back.

Council for Fair Business Practices (CFBP)

On October 2, 1966, the Late Mr. J R D Tata, the Late Mr. Ramakrishna Bajaj, Mr. Arvind Mafatlal and Mr. F. T. Khorakiwala, inspired by Mahatma Gandhi’s message came together and formulated a Code of Conduct for Businessmen. Out of this desire to build bridges of understanding between manufacturers and consumer, the Fair Trade Practices Association was born and later renamed as Council for Fair Business Practices (CFBP). It represented the coming together of a section of like-minded businessmen who felt the need to safeguard consumer interests in an organized manner through a forum of Self Regulation and thereby help elevate the public image of business.

Today this organization is the only of its kind in India and has as its member in some of the Country’s leading business houses and Trade Associations. Since its inception the Council has been propagating the code of Fair Business Practices which codifies the norms of business activities that ensure justice and a fair deal to the consumer. CFBP was set up because doubts arise sometimes in the mind of the consumer about the business community due to some elements whose dealing with the consumer has not been devoid of unfair trade practices. There is a great need for better communication, understanding and rapport between the Consumer and Business. CFBP tries to bridge this gap. It insists on not only prescribing the code, but exhorts its members to steadfastly follow the code of fair business practices.

Though the council is a body of Businessmen, its main objective is to protect the consumer’s interest. The council has remained committed to the philosophy of self – regulation and has brought about awareness that the consumer’s right must be safeguarded and protected which will ultimately promote better business. The image of the business community needs to be improved to gain greater goodwill with the consumer. A satisfied consumer is the best insurance for a businessman. A customer would prefer to deal with a member of CFBP rather than with someone outside the discipline of CFBP.

Ethical Issues / Issues in Advertising

Advertising is a dynamic social form where business interests, creativity, consumer needs and government regulations meet. The high visibility of advertising makes it particularly vulnerable to criticism. E.g.: Benetton is both a vehicle to sell clothing as well as a platform to express opinions on social issues. As a consequence of these mixed perspectives, it has had to pay a heavy price – number of stores dropped as well as lost out in 1991. Another aspect is that people feel that advertising plays the role of the “Hidden Persuader” and that consumers are its victims as they are manipulated to buy products they neither need nor can afford.

Also findings indicate that while ad executives are fed up with bad ads produced by their trade, consumers do not care much one way or the other because of the overdrive of advertising products. However, it is worthwhile to be aware of the social issues facing advertising, as social responsibility requires a balance between public welfare and freedom of speech.

Ethical Criteria

In spite of regulation, every issue is not covered by a clear, written rule. Many issues are left to the discretion of the advertiser and these decisions may be based on a variety of considerations – objective of ad campaign, attitudes of target audience and the legal precedent. Many decisions are also based on ethical concerns.

Issues central to an ethical discussion on advertising are:

  • Advocacy: By its very nature, advertising tries to persuade the audience that they need new products and to buy it, since it persuades it is not objective or neutral. This fact disturbs critics who think ads should be objective, informative and neutral. They want ads to provide info and then stop there.
  • Accuracy: Beyond the easily ascertainable claims in an ad message are matters of perception. Will buying the automobile make an envy of my neighbor? Will wearing a perfume make me more attractive? Such messages may be implied by the situations pictured in the ads. In spite of being aware that these messages will not essentially change our lifestyle, ad critics raise concern when these messages are directed to particular groups with limited experience such as children and teenagers.
  • Acquisitiveness: Some critics believe that advertising is a symbol of our society’s preoccupation with accumulation of material goods. We are constantly exposed to gods that are bigger, better, changing, newer, etc. and into thinking that we must have these products.
  • We do have free choice of what we buy
  • Advertising offers choice and incentives
  • Advertising informs consumers about goods and services they demand
  • Ultimately, consumers make the final decision

The Problem of being Ethical

Advertising can seek help in making decisions about questionable situations with the help of code of ethic that help provide general guidance. When advertising decisions are not covered by a code, rule or regulation, someone must make an ethical decision. This person must weigh the pros and cons and make value judgment about an unfamiliar situation. These decisions are complex because there exists no clear consensus about what is ethical behavior. The complexity of ethical issues requires us to make conscious effort to deal with each situation. After all it is people who create the ethical atmosphere of an organization.

  • Who should and should not be advertised to?
  • What should and should not be advertised?
  • What should and should not be the content of the advertising message?
  • What should and should not be the symbolic tone of the advertising message?
  • What should and should not be the relationship between advertising and the mass media?
  • What should and should not be advertising conscious obligation to society?

Therefore:

  • There is no clear consensus on what defines ethical behavior.
  • There is potential conflict between personal ethics and what might be good for business.
  • Just because it is legal doesn’t mean that it’s right.

Related Factors in Ethical Decision Making

  1. Nature of the company
  2. Marketing objectives
  3. Reputation of the company
  4. Available resources
  5. Competition

Advertising & its Criticism

Advertising has been attacked by critics who charge that it goes beyond selling products or ideas to exert a powerful influence on society. According to this view, advertising in its many forms is so pervasive and so persuasive that it has the ability to shape social trends and mold personal attitudes. This influence is unwanted, intrusive and often detrimental to society, say critics. Defenders respond that, in addition to the economic benefits to improved competition, lower prices and more product choices, advertising promotes freedom of speech, as goods and services. Furthermore, advertising is actually influenced by society because it acts as a mirror in reflecting certain societal changes. For example, advertising must continually adjust their language and illustrations to conform to changes in socially acceptable practices.

This ongoing debate over the proper role of advertising in society is entirely separate from the ethical issues of deceptive or fraudulent advertising and it boils down to one basic question: Does advertising help or hurt society?

Language and Literacy

Advertising sometimes twists words or changes spelling and grammar to make a point. Advertising copy is accused of playing fast and loose with the rules of language, which encourages the audience to do the same. Some critics go further, complaining that people have less need for readily available in the electronic media both by advertising and by sponsoring news and entertainment programs. Why do ads bend grammar and use slang? Sometimes it’s to avoid sounding stilted, sometimes it’s for emphasis and sometimes it’s to sound like the people you want to reach. “There’s no real intent to damage the language.” When advertisers want to reach teenagers they try to adopt teenage speech patterns, advertisers often use unorthodox spelling so a word can be used as a legal part of a brand name as a trademark.

Manipulation and Exploitation

Does advertising manipulate people into buying what they don’t need? Critics contend that advertising is so powerful and persuasive that people have no choice but to buy what they see advertised, regardless of their actual need for these products. Advertisers exploit our inadequacies, anxieties, hopes and fears. Advertisers, using psychological or emotional appeals, get us to buy their products by making us feel that these products help us gain status, acceptance, even love.

On the other side of the controversy, defenders acknowledge that the whole reason to advertise is to persuade. There’s no magic or dishonesty about using the marketing mix to identify customer needs, to create an appropriate product and to advertise the product. Defenders contend the advertising offers people the information they need to choose among products in the marketplace. Advertising can be seen as building consumption not by making people purchase what they don’t need but by making the market more efficient for both consumer and producers by offering information about the product, its availability.

No amount of advertising pressure can force people to buy something they don’t want and anyone who is persuaded by advertising to buy a bad product (or a product that doesn’t meet a legitimate need) won’t make that mistake again. Far from being helpless to resist advertising’s persuasive power people are able to ignore or discount advertising messages, by zapping television commercials, turning down the radio, or simply turning the page in a magazine or newspaper. Most consumer are savvy about what they see advertised and research indicates that children understand and are skeptical about advertising’s persuasive power.

Advertising Old People and Minority Groups

Critics say that ads often portray entire group of people in stereotypical ways showing elderly people only as senile for example. These advertising can reinforce negative or undesirable views of these groups. This can contribute to discrimination against them. By presenting minorities and women more realistically, advertisers can significantly expand their markets for a wide variety of products. The situation is slowly changing as minority group’s protest against stereotypes. However, showing more minority groups is only half the answer. The other half, perhaps more difficult, is to make their portrayal realistic.

Advertising is a waste of money

There is a feeling among some that advertising is blatant, uneconomic and antisocial. It makes people buy more than they need it, encourages consumption of liquor and cigarettes; it is the cause of violence, murder, etc. The money that is spent on advertising is considered a waste. This amount, it is felt, can be used effectively in other ways. Models are paid lakhs and crores of rupees (Amitabh Bachchan, Sachin Tendulkar, etc.) Ads on products that do not sell are also wanted. However, in all areas of work, failure and superfluous expenditure is there in almost all activities.

Whether advertising is a social waste is difficult to interpret. Allegations of social waste are based on statements as:

  • Ads make false statements which confuse & mislead
  • Ads force customers to want goods & services that are not needed
  • Ads promote products which are harmful
  • Ads are forced on consumers (TV ads)

With reference to the statement that ads mislead and make false statement it may be said most statements are true to a large extent. Yes, ads exaggerate but again consumers are not fools. Products are not brought only for its product attributes; it is bought for prestige (car), hope of a beautiful appearance, people want to look better, eat better, live better, drive better cars & improve their standard of living. Products may satisfy entirely or partially the wants of society. Persuasion is used not only in advertising but also in sermons for preachers, lecturer and even directives from government.

The second criticism is that ads make people buy what they cannot afford. Ads cannot move people in the direction which are contrary to social trends. Products are produced after market research to find out what people want, what is the demand. When people decide against the use of product no amount of advertising can make them buy the product. IF advertising can make consumers buy products there will be no product failure.

Advertising promote products harmful to citizens

There is a lot of legislation preventing the promotion and sale of harmful products. Cigarettes are harmful but smoke is more harmful. Liquor is dangerous and immoral according to critics. Attempts to abolish ads on these products only result in more use and illicit trade in such products. No product causes more death than automobiles. Is that immortal and should its production be banned?

Advertising is lacking in good taste

Some ads (Harpic ad) are irritating. If the public is offended, the advertisers find out through decreases in sales or news reports and that situation are rectified. Advertiser’s job is to communicate. Some advertisers are aesthetic and more sensitive than others.

Ads are forced on TV viewers

The viewers are under no obligation to see the commercials. TV programmes cost money. If ads are not shown the programmes have to be made at government expense and the tax payer will have to pay additional taxes. Does advertising result in a better standard of living? Advertising has indeed made considerable contribution to a better standard of living with many other factors like our productive economic system. It has resulted in a dynamic expanding economy. Today’s economy is geared to a high level of consumption and production level. If employments are to be maintained and the economy has to grow, consumers will have to maintain the standard of living.

Advertising places an undue stress on material things

With the role of advertising to maintain a high standard of living, it is obvious that advertising does stress to a considerable extent the consumption of material goods. Does this mean that less stress is placed on people’s cultural and spiritual needs? Is there a decline in cultural and spiritual fields because of advertising? Has interest in literature, music, painting, sculpture theatre, creative pursuits, efforts on the poor and the less fortunate in our society less because of advertising? In fact a decent standard of living is a prerequisite to a general interest in cultural activities. Both material goods and cultural activities are compatible.

If the cultural & spiritual life is not as high as critics feel it should be, is advertising to be alarmed?

Advertising forces people to buy goods they do not need

It is true that many products can be grouped as not necessary at present. However many products that are luxuries become necessities for a reasonable standard of living. Who is to decide that a particular item is not, the critics or the government? The freedom of choice cannot be taken away from people. Critics are the loudest in wanting freedom of speech. Advertising, as long as it does not violate standards of good taste, ethics, etc. is one form of freedom of speech.

Self Regulations in Advertising

Don’ts:

  1. Individual media & media groups should preferably establish their own codes of ethics.
  2. Do not possess, sell, and let to hire or otherwise promote circulation of any harmful publication in any part of India. (Young person – Harmful Publication, Act 1955.)
  3. No price competition for prize exceeding Rs. 1000 a month should be held without a license. And no newspaper or other publications should publish advertisements in violation of the above prohibitions. (Prize Competition 7 Act, 1955).
  4. Advertisement – textual, pictorial, graphical or otherwise – should not generate hatred, contempt or disaffection towards Government or between different classes of citizens in India.
  5. Do not use in advertisement the name, emblem or official seal of the United Nation & some of its specialized agencies & also the India or a state Supreme Court, High Court & some official organs, Rashtrapati Bhavan, Raj Bhavan, some luminaries like Shivaji Maharaj, Mahatma Gandhi & some internationally acclaimed human service organization like St. John Ambulance Association & the Tuberculosis Association of India. Also not use any name that may suggest official patronage for the product etc. advertised. (Emblems & Names – prevention of Improper Use – Act 1950).
  6. Avoid unauthorized use in your advertisements another person’s organizations trade mark. This may attract civil & criminal liabilities. Also do not advertise your goods, etc. with false trade description which is an offence punishable under law. (Trade & Merchandise Marks Act 1958).
  7. Advertisement in any form must not be used for use of drugs for effecting miscarriage or prevention of conception in women or maintaining a man’s capacity for sexual pleasure or correcting menstrual disorders or treatment of venereal disease, etc.
  8. Similarly false or misleading advertisements for efficacy of drugs or magic remedies of certain diseases should be avoided. (Drugs & Magic Remedies – Objectionable Advertisements – Act 1954).
  9. Advertisements to get protection under Copyright Act, 1957 must be original.
  10. Do not publish or cause to be published or take part in publication of any advertisements representing a woman indecently. (Indecent Representation of women (Prohibition) Act, 1950).
  11. Do not claim orally through advertisement or by way of a product label a product to be of a quality which it does not rally possess.
  12. Do not print, possess or advertise for sale or distribution of any ticket, coupon or other document for use in prize chit or money circulating scheme or otherwise take part in any such advertisement or prize chit or Act.
  13. Advertisers are advised not to use in their advertisements for drugs or cosmetics any report of a test or analysis made by a government analyst / agency or any extract from such a report.
  14. Publicity, propaganda in various ways in connection with an election is prohibited within 48 hours of an election.
  15. Do not publish or otherwise display objectionable & unethical advertisements encouraging self-medication & self-treatment.
  16. Do not put advertisement directly or indirectly interfering with the properly of another such as wrongful pasting of bills upon someone else’s well or erecting a hoarding in front of someone’s wall.
  17. An advertisement must not obstruct a place to which the public have a right to access not should a dangerous structure be near a highway.
  18. Do not publish advertisements with obscene pictures meant merely to make money by titillating the sex feeling of adolescents and adults among whom the newspaper circulates or which constitute unwholesome exploitation of sex for money.
  19. Advertisements should not hurt the religious feeling of any community by inappropriate use of the name of photograph / pictorial presentation of gods or goddesses in promoting commercial products.
  20. Advertisements must not even tend to malign or hurt the religious sentiments of any community or section of society.
  21. Advertisements must not contravene provisions of any relevant Act.
  22. Do not publish unauthorized or unpaid dummy advertisements which are against journalistic ethics. (Press Council of India’s Advertisement Code).
  23. Since success of advertising depends on public confidence, no practice should be permitted which tends to impair this confidence.
  24. No advertisement should have the effect of impairing the confidence of the public on the product or its manufacturers for the success of the advertisement depends upon public confidence (ASCI Code).
  25. Advertisements shall not distort facts nor mislead the consumer by means of implications or omissions either by statements or visual presentations. (ASCI Code).
  26. Obvious untruths or exaggerations to amuse or attract customers are permissible only if these are not to be misunderstood as genuine qualities of a product (ASCI Code).
  27. Advertisement should contain nothing indecent vulgar or repulsive which is likely to cause grave or widespread offence (ASCI Code).
  28. Do not make indiscriminate use of advertising in situation or of the promotion of products which are regarded as hazardous or harmful to society or to individuals particularly minors to a degree or of a type which is unacceptable to society at large (ASCI Code).

Do’s:

  1. Self regulation by the advertising industry is better than state control.
  2. Advertising trade association should be mainly concerned with maintaining high standards.
  3. Radio & Television should co-operate closely to avoid permitting advertising that might cause unfavorable social reactions.
  4. Newspapers while publishing advertisement should publish the tariff charged for each advertisement to ensure that no unusual fee over & above the normal market rate is charged, which may have other undesirable implication. (Press Council of India’s Advertisement Code).
  5. Newspaper should ensure that an advertisement is published in issues of an edition or edition contracted for. Deliberate omission constitutes gross professional misconduct. (Press Council’s of India’s Advertisement Code).
  6. There should always be proper communication, vigilance & understanding between the advertisement department & the editorial department to avoid acceptance or publication of an undesirable advertisement. (Press Council of India’s Advertisement Code).
  7. Editors should assert their right to accept or reject advertisements, particularly those which border on or cross the line between decency & obscenity. (Press Council of India’s Advertisement Code).
  8. Editors should own full responsibilities for advertisements & editorial matters published in his newspapers, unless such responsibilities are clearly disclaimed in advance in respect of any such published material. (Press Council of India’s Advertisement Code).
  9. Advertisement must be truthful in description, claims & comparisons, & these should be capable of substantiation on demand. (ASCI Code).
  10. Observe fairness in competition so that the consumers need to be informed on choice in the market-place & the canons generally accepted competitive behavior in business are both served.
  11. Abide by the Doordarshan (Indian TV) & AIR (All India Radio) advertising codes (Appendices 1 & 2) & for this purpose familiarize yourself with the legislations affecting advertising in India. Particularly the following Acts & the Rules framed under them:
  • Drugs & Cosmetics Act 1940
  • Drugs Control Act 1950
  • Drugs & Magical Remedies Act 1954
  • The Copyright Act 1957
  • Trade & Merchandise Marks Act 1958
  • Pharmacy Act 1948
  • Prize Competition Act 1955
  • Emblems & Names (Prevention of Improper Use) Act 1950
  • Consumer Protection Act 1986
  • Indecent Representation of Women (prohibition) Act 1986
  • Code of Ethics for advertising in India issued by the Advertising Standards Council of India.
  • Codes of standards in relation to the advertising of medicines & treatments (as given in annex of the Doordarshan Code)
  • Standards of practices for advertising agencies.

Fundamental Rights

Fundamental Rights

“Fundamental Rights” is a charter contained in Part III of the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony. These individual rights include the ones that are found in most democracies like equality before the law, freedom of speech & expression, freedom to practice religion, right to constitutional remedies and so on. Violation of these rights results in punishments as prescribed in the Indian Penal Code or other special laws, subject to the discretion of the judiciary.
Another feature of these rights is that the people who are not the citizens of the state are also considered equal in the eyes of the law and the provisions given in the law is enforceable on them too. Although, this is subject to certain restrictions.

The six fundamental rights recognized by the Indian constitution are:

  1. Right to Equality:
    This includes equality before law, prohibition of discrimination on grounds of religion, race, caste, gender, or place og birth, and equality of opportunity in matters of employment, the abolition of untouchability and abolition of titles.
    This right is provided in the constitution from article 14 through 18 and is the principle foundation of all other rights and liberties. This fundamental law guarantees the following:

Equality before the law: Article 14 guarantees that all people shall be equally protected by the laws of the country. It means that the State will treat people in the same circumstances alike.

Social equality and equal access to public areas: Article 15 states taht no person shall be discriminated on the basis of religion, race, caste, sex, or place of birth. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats, temples, etc.

Equality in matters of public employment: Article 16 lays down that the State cannot discriminate against anyone in the matters of employment. All the citizens can apply for government jobs.

Abolition of untouchability: Article 17 abolishes the practice of untouchability. Anyone continuing this practice is punishable by law. The Untouchability Offenses Act of 1955 (amended to Protection of Civil Rights Act 1976) provides penaly for preventing a person from entering a place of worship or from taking water from a tank or a well.

Abolition of titles: Article 18 prohibits the State from conferring any titles. Indian citizens cannot accept any titles from a foreign State. However, military and academic distinctions can be conferred on the citizens of India. Although, awards like Bharat Ratna or Padma Vibhushan still cannot be used as titles by the recipients.

  1. Right to Freedom:

This includes freedom of speech and expression, assembly or association or union or cooperatives, movement, residence, and right to practice any art or profession or occupation (some of these rights are subject to the security of the State and its friendly relations with foreign countries, public order, decency, or morality), right to life and liberty, protection with respect to conviction in offenses, and protection against arrest & detention in some cases. Articles 19-22 enforce these rights and we will see them in detail below.

Freedom of speech and expression, wherein the State can impose restrictions on a subject where it matters & it is in the national interest. Also, they can be imposed to protect the national sovereignty and integrity of India, friendly relations with foreign States, public order, decency, or morality or in relation to contempt of court, defamation or incitement to an offense.

Freedom to assemble peacefully without arms on which the State can impose restrictions for the reasons similar to the ones stated above.

Freedom to form associations or unions or cooperatives on which the State can impose restrictions to maintain public order and to maintain the sovereignty & integrity of India.

Freedom to move freely throughout the territory of India

Freedom to reside and settle in any part of the territory of India though reasonable restrictions in the interest of the general public. For example, traveling can be restricted to control or quarantine an epidemic.

Freedom to practice any profession or to carry on any occupation, trade or business. The State may also impose restrictions Article 21A guarantees education to all children of the age of 6 to 14 in such manner as the State may determine by law.

Right to Information (RTI) has been given the status of a fundamental right under Article 19 (1) in 2005. Article 19 (1) gives every citizen the right to know the government functioning, what role does it play, what are its functions and so on.

Right against Exploitation:

This freedom prohibits all forms of forced labor, child labor, and traffic of human beings.

This right is given in two articles- Articles 23 and 24, wherein it provides provisions for the abolition of trafficking of human beings &forced labor and abolition of children below the age of 14 years in dangerous jobs.

Right to Freedom of Religion:

This includes freedom of conscience and freedom of profession, practice, and propagation of religion, as well as freedom to manage religious affairs, freedom from taxes and freedom from religious instructions in certain educational institutions.

Cultural and Educational Rights:
Preserving the right of any section of citizens to conserve their culture, language or script, and the right of minorities to establish and administer educational institutions of their choice.

Right to Constitutional Remedies:

This is present to enforce the fundamental rights and to make sure that people who seek justice receive it.

These rights were made to undo the pre-independence practices of inequality because of casteism, racism, classism, untouchability and other discrimination like issues of religion, race, caste, sex, or place of birth. Inspirations were taken from England’s Bill of Rights (1689), the United States Bill of Rights (1787) and France’s Declaration of the Rights of Man (1789) as well as the Soviet Union Constitution.

Functions and Objectives of Prasar Bharati Act

Prasar Bharati Bill

Prasar Bharati was established in 1997 following a demand that the Government owned broadcasters in India should be given autonomy. Parliament passed the Act in 1990 but it was enacted in 1997. The Act established the Broadcasting Corporation of India to be known as Prasar Bharati. It defined its composition, functions and powers. The Bill introduces Prasar Bharati as a Public Service Broadcaster whose primary broadcast to the public is socially and culturally relevant and in public interest and welfare.

The main features of the code are:

  1. Ads should be as per the laws enacted to protect the rights of the consumers
  2. Ads should not project a derogatory image of women and endanger the safety of children
  3. The programmes should not criticize friendly countries
  4. Ads should not attack religions or communities
  5. Ads should not be obscene or defamatory
  6. Ads should not incite violence

The ad codes are applicable to all TV channels. The provision to allow cable networks to have adult programmes between 11pm and 6am has been deleted in the amended rules. Cigarettes, tobacco, alcohol and other intoxicants as well as infant milk substitutes, feeding bottles and infant foods are prohibited. Doordarshan has made a significant contribution to accelerate and stimulate scientific tempo.

It strives to carry programmes about issues such as population control, family welfare, environment and ecological balance, highlighting the need for social welfare measures for women, children and the less privileged. It has also given importance to sports, artistic and cultural heritage of the country. In this Bill we see clearly how closely self regulation, ethical issues and laws are related. Anyone violating the self regulation and ethical issues can be prosecuted. However with ethical issues the question is who defines “public interest” and what exactly is “welfare”.

Cyber Crimes

Sec 66A of IT Act

Net Neutrality

Network neutrality, or more simply net neutrality, is the principle that Internet service providers (ISPs) should treat all Internet communications equally and not discriminate or charge differently based on user, content, website, platform, application, type of equipment, or method of communication.

When net neutrality is required, ISPs may not intentionally block, slow down, or charge money for specific online content. Without net neutrality regulations, ISPs may prioritize certain types of traffic, meter others, or potentially block traffic from specific services, while charging consumers for various tiers of service.

Mechanisms for establishing rules ensuring Net neutrality in India, are at present mainly enforced by the Telecom Regulatory Authority of India(TRAI). At present, there are no constitutional provisions for establishing Net Neutrality by any legislative or judicial body.

On July 12 2018, rules favoring Net neutrality came into effect. These rules barred any form of data discrimination. Internet Service Providers which violate these rules may have their licenses cancelled. The rules make an exception for “critical IoT services” or “specialized services” such as autonomous vehicles and remote surgery operations.

The debate on network neutrality in India gained public attention in December 2014, after Airtel, a mobile telephony service provider in India, announced additional charges for making voice calls (VoIP) from its network using apps like WhatsApp, Skype, etc.

In March 2015, Telecom Regulatory Authority of India (TRAI) released a formal consultation paper on Regulatory Framework for Over-the-top (OTT) services, seeking comments from the public. The consultation paper was criticised for being one sided and having confusing statements. It received condemnation from various politicians and Indian Internet users. The last date for submission of comment was 24 April 2015 and TRAI received over a million emails.

On 8 February 2016, TRAI passed the “Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016”, prohibiting telecom service providers from levying discriminatory rates for data. This move was welcomed by millions of Indians and also by people from other countries who are fighting or fought for net neutrality, and the inventor of the World Wide Web, Tim Berners Lee.

Arguments supporting Net Neutrality

  • Services on the internet must be equally accessible to all and no discrimination should be there.
  • Without Net neutrality, right to freedom of speech and expression would be affected.
  • It would be detrimental from the consumer point of view too.
  • Net neutrality will promote architecture and innovative development of the Internet.
  • The Internet is the result of time and creativity of many volunteers for many decades and hence it should not be left in the hands of the few, hence ethically wrong if it is done away with.
  • Without Net neutrality, the new start-ups would be at a disadvantage.

Arguments against Net Neutrality

  • The economic principle of paying differently for different levels of service and experience is recognized by Differential Pricing.
  • Massive investment loss would be there.
  • Future investments in telecommunications infrastructure will be curtailed, thereby impacting user experience.
  • Applications which use the voice over internet protocol (VoIP), have led to the reduction in voice-based traffic.
  • It will impact the government’s Digital India initiative.
  • It is ethically questionable because operators have to invest in maintaining and expanding the internet’s infrastructure to support new services while most benefits are reaped by Internet content companies like Google, Facebook etc.
  • The Internet has survived because of little or no regulation, hence creativity and future development should not be crippled.

Drug and Cosmetics Act 1940 (Amended 1995)

The problem of adulteration of drugs and also the production of spurious and substandard drugs pose a serious threat to the heath of the community. It was therefore considered necessary to enact the Drugs and Cosmetics Act 1940. The Act regulates the import into, manufacture distribution and sale of drugs and cosmetic in the country. The Act was amended to impose more strict penalties for manufacture and sale of adulterated or spurious drugs or drugs not of standard quality which are likely to cause death or grievances hurt to the user.

Some amendments are:

  1. Cosmetics included toilet soap as it may contain harmful ingredients
  2. The competent gelatin was induced in the drug
  3. Patent and proprietary medicines included Ayurveda, Siddha or Unani systems of medicines
  4. The Central Government is empowered to prohibit import or manufacture of drugs and cosmetics if it is harmful to humans as well as animals
  5. Any person with license has to maintain records and other documents and to produce them when required
  6. Inspectors are empowered to stop and search any vehicles carrying drugs & cosmetics if an offence under the Act is being committed
  7. Enhancement of the quantum of punishment for offences under the Act
  8. The Technical Advisory Board will have representatives or experts in Ayurvedic, Siddha and Unani systems of medicine

Definitions

  1. Ayurvedic, Siddha or Unani Drug includes all medicines intended for internal or external use for or in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals and manufactured exclusively in accordance with the formulae described in the authoritative books of Ayurveda, Siddha and Unani systems of medicines.
  2. Board means, in relation to Ayurvedic, Siddha or Unani Medicines, the Ayurvadic, Siddha and Unani drugs Technical Advisory Board set up under section 33C and in relation to other drugs or cosmetics.
  3. Cosmetic means any article intended to be poured, sprinkled or sprayed on or introduced into or applied to the human body or any part thereof, for cleansing, beautifying, or altering the appearance and includes any article intended for use as a component of cosmetic.
  4. Drug includes:
  1. All medicines for external or internal use of human beings or animals and all substances intended to be used for or in the diagnosis treatment, mitigation or prevention of any disease or disorder in humans or animals.
  2. Any substance (other than food) to affect the function of the human body or to be used to destroy insects which cause disease in humans and animals
  3. All components including empty gelatin capsules
  4. Any device used for internal or external use in the diagnosis, treatment, mitigation or prevention or disease or disorder in humans or animals
  5. Manufacture includes any process or part of a process for making, altering, ornamenting, finishing, packing, labeling, breaking up or adopting any drug with a view of its sale, distribution but does not include compounding or dispensing or packing in the course of retail business

Drugs (Price Control) Order 1995

This order was passed so that the government may regulate the equitable distribution and increasing supplies of a bulk drug specified in the first schedule and make it available at a fair price and specify a maximum sale price at which such bulk shall be sold. By this order the inspection of premises, records, and processes has to be allowed by the manufacturer. No person shall sell a bulk drug at a price exceeding the maximum sale price fixed plus local taxes.

  • If the manufacturer desires a revision of the maximum sale price an application may be made to the government
  • The manufacturer has to give details of all scheduled drugs along with the cost of such bulk drugs
  • The government can by this order, direct manufacturers to sell to other manufacturer of formulations of it deems necessary
  • The government had the power to fix the retail price of a scheduled formulation. This fixed price cannot be increased by any manufacturer.

Definitions

  • Bulk Drug: Means any pharmaceutical, chemical, and biological or plant product including its salts, esters, derivatives used as an ingredient in any formulation.
  • Dealer: Means a person carrying on business of purchase or sale of drug whether as a wholesaler or retailer.
  • Drug: Includes all medicines for internal or external use and all substances, which affects the structure or any function of human or animal body.
  • Manufacture: Includes any process or a part of a process for making, altering, finishing, packing, labeling, adapting any drug with a new to its sale and distribution but does not include compounding or dispensing in the ordinary course of retail business.

List of Emblems and Names Prohibited to use

The Emblems and Names (Prevention of Improper Use) Act 1950

This is an act to prevent the improper use of certain emblems and names for commercial and professional purposes. It extends to the whole of India and also applies to citizens of India living outside India. The name, emblem or official seal of the following organizations cannot be used:

  • United Nations, World Health Organization, The Indian Flag, The Government of India or any of its departments, The State Government, The President, Governor, UNESCO, The International Civil Aviation Organization, World Metrological Organization, International Atomic Energy Agency.
  • The name or pictorial representation of Rashtrapati Bhavan, Raj Bhavan, Chhatrapati Shivaji Maharaj or Mahatma Gandhi, Jawaharlal Nehru, Srimati Indira Gandhi or the Prime Minister of India.
  • The name of Ashoka Chakra and Dharma Chakra or the pictorial representation of Ashoka Chakra as used in the Indian National Flag, the name of parliament or legislature of any state, the supreme court, High Court, The Central Secretariat.
  • The name and emblem of The Rama Krishna Math and Mission, Sri Sarada Math and The Rama Krishna Sarada Mission, The Bharat Scouts and Guides with its emblem, the name and emblem of the International Olympic Committee, The National Youth Emblem, The emblem of St. John Ambulance Association (India) and St. John Ambulance Brigade (India).
  • The use of any name which may suggest or be calculated to suggest:
  • The patronage of the Government of India or the State Government
  • Connection with any local authority or anybody constituted by the Government

Definitions

  • “Emblems” means any emblem, seal, Flag insignia, coat of arms of pictorial representation specified in the schedule.
  • “Name” includes any abbreviation of a name.
  • “Competent Authority” means any authority competent under any law to register any company, firm or other body or persons or any trademark or design or to grant a patent.

Stereotypical Views of Women in Advertising

Since its inception, media in its every form has a great impact on the society. An average adult spends one third of his time on one or another form of media and in case of teenagers and young adults, the time devoted to media is even more. A simple thirty seconds commercial can make thousands change their perception about gender roles, stereotypes, beauty, etc. But in India the change in the minds of the viewers is mostly negative, thanks to the repetitive stereotypical content of the media industry.

When we watch a commercial for domestic products like detergent, washing bars, floor cleaners, etc. we often see a woman wearing an ethnic Indian Salwar Kameez or Sari, holding the product and telling us how the product has revolutionized her daily household chores, how her husband is praised at work for his spotless shirt which “she” washed using the product, how the guests are now happy to see the shining crockery “she” cleaned using the product and how it’s safe for her kids to play on the floor after “she” mopped the floor using the product. We seldom see a man involved in any household chore. It is not like women are dominating the advertisement industry, men have a share too. Men are portrayed driving a luxury car or a bike while a women sits on the backseat. They take on the world with their luxury watches and make the world a better place to live by consuming the so-called ‘sparkling water’ by various companies.

These advertisements assign specific gender roles. As young adults, teenagers and even kids watch these ads they create a perception in their mind that women are supposed to cook and clean and men are supposed to go out and lead the world. Why can’t a car company show a woman driving the car instead of a man wearing a perfectly tailored suit? This will help in eliminating one of the most popular belief that women are bad drivers. Why can’t a company selling domestic products recruit a male actor using their products to do the household chores? This will send out a message that household chores are not just a women’s job and both the genders should equally contribute to it.

Apart from advertisements that create gender stereotypes, there are other types of ads that exploit women by showing them as sex objects. Male personal care products like deodorants, soaps, face wash, moisturizers, etc. are often advertised in a way that is demeaning to the female fraction. They imply that if a man uses their product then women cannot resist being attracted to them, no other quality or qualification is needed and women are simply desperate to fall in their arms. These advertisements create a wrong image in the minds of teenagers and young adults who are easily influenced by these ads. Boys feel superior and dominant and girls feel like they are weak and fragile. It is important to ban ads which portray women as sex objects as it is completely undignified and insulting.

Some advertisements portray women as an epitome of beauty. These ads indirectly shame women for their skin color, skin problems, excess weight, body hair, etc. These ads create unrealistic expectations of body images for women, as in order to imitate the actress they tend to use a particular line of products. Teen girls nowadays are fat- shaming themselves and cutting off even essential food nutrients from their diet in the hope of maintaining their calorie count which is resulting in amnesia and malnutrition. Also, failure to meet standards set by these ads leads to women going into depression. They become too conscious about their body and overthink the “imperfections”. These ads act like an epidemic that slowly and steadily deteriorate the minds of young girls and women.

The content of all these types of commercials have a lot of disadvantages ranging from gender stereotyping to physical and mental health issues like anxiety and depression. However, not much is done by the media industry to ban or at least modify these commercials. These advertisements are publicized on a large scale. They are played widely on televisions, radios, online streaming sites, etc. The companies are satisfied by the increase in sales and the ad agencies delight in filling their pockets. Thereby, no one objects to the content of the ad and what damage it causes the general public.

India, being a country that is undertaking strategic ways to improve the quality of a woman’s life in the country, should really pay attention to these large scale de-moralizing ads. This is the first and most important step towards breaking gender stereotypes and reaching towards gender equality.

Infringement of Copyrights

Copyright law confers upon the owner of the work a bundle of exclusive rights in respect of the reproduction of the work and other acts which enables the owner to get financial benefits by exercising such rights. If any of these acts relating to the work is carried out by a person other than the owner without a licence from the owner or a competent authority under the Act, it constitutes infringement of copyright in the work. Since copyright is granted only for a limited period, there will be no infringement if the reproduction of the work or other acts concerned are carried out after the term of the copyright has expired. The exclusive rights conferred on the owner depends on the nature of the work in which copyright subsists.

Accordingly the type of acts which will constitute infringement will also depend upon the nature of the work. Section 51 defines infringement of copyright generally. section 52 gives a long list of acts which do not constitute infringement of copyright. These are in the nature of exceptions to the exclusive rights conferred upon the copyright owner. They also serve as defence in an action for infringement of copyright.

The exclusive rights granted under the Act extends also to a translation or adaptation of the work or to a substantial part thereof. Thus copyright will be infringed if a substantial part of the work is reproduced. what amounts to a substantial part of the work will depend upon the circumstances of the case.

Copyright is a proprietary right and accordingly its infringement is actionable without proof of damage or likelihood of damage. If therefor. infringement is established there is no need to consider whether the defendant’s work is likely to compete with the plaintiffs’ work.

Statutory definition of infringement

Section 51: Copyright in a work is deemed to be infringed-

(a) when any person without a license from the owner of the copyright, or the Registrar of Copyright, or in contravention of the conditions of a licence granted or any conditions imposed by a competent authority under the Act:

(i) does anything, the exclusive right to do which is conferred upon the owner of the copyright, or

(ii) permits for profit any piece to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had. no reasonable ground for believing that such communication to the public would be an infringement of copyright, or

(b) when any Person,

(i) makes for sale or hire, or sells or lets for hire or by way of trade displays or offers for sale or hire any infringing copies of the work, or

(ii) distributes, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, any infringing copies of the work, or

(iii) exhibits in public by way of trade any infringing copies of thework, or

(iv) imports into India any infringing copies of the work except one copy of any work, for the private and domestic use of the importer.

The reproduction of a literary dramatic, musical or artistic work in the form of a cinematograph film will be deemed to be an infringing copy.

The Trademarks Act 1999

The Trade and Merchandise Marks Act, 1958

It had served its purpose and review of the existing law was necessary because of developments in trading and commercial practices, increasing globalization of trade and industry, etc. a need for simplification and harmonization of trademark and to give effect to important judicial decision.

Hence the Trademark Act, 1999 incorporated the following:

  1. The registration of trademarks for services in addition to goods.
  2. Registration of trademarks which are imitation of well known trademarks not to be permitted.
  3. Simplified procedure for registration with equal rights.
  4. Enhancing punishment for the offences relating to trade marks.
  5. Appointing an Appellate Board for speedy disposal of appeals.
  6. The final authority for registration of certification trademarks to the Registrar instead of the Central Government.

Certain Draft Rules were published in the exercise of powers given in the Trademarks Act 1999. These Draft Rules were called the Trademarks Rules 2002. These rules give in detail the explanation of the terms used, along with the procedure for registration of Trademarks application, about renewal, etc.

Unfair Trade Practices

UTPs encompass a broad array of torts, all of which involve economic injury brought on by deceptive or wrongful conduct. The legal theories that can be asserted include claims such as trade secret misappropriation, unfair competition, false advertising, palming-off, dilution and disparagement. UTPs can arise in any line of business and frequently appear in connection with the more traditional intellectual property claims of patent, trademark and copyright infringement. Specific types of UTPs prohibited in domestic law depend on the law of a particular country. The World Bank (WB) and the Organisation for Economic Cooperation and Development (OECD) Model Law, for example, lists the following trade practices to be unfair:

  • Distribution of false or misleading information that is capable of harming the business interests of another firm;
  • Distribution of false or misleading information to consumers, including the distribution of information lacking a reasonable basis, related to the price, character, method or place of production, properties, and suitability for use, or quality of goods; false or misleading comparison of goods in the process of advertising;
  • Fraudulent use of another’s trade mark, firm name, or product labelling or packaging;
  • Unauthorized receipt, use or dissemination of confidential scientific, technical, production, business or trade information.

The dictionary meaning of ‘unfair trade practice’ is: a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive.

Definition of Unfair Trade Practice Under Consumer Protection Act, 1986

Section 2(1)(R) of Consumer Protection Act, 1986 also defines the term ‘unfair trade practice’. It reads:

“Unfair Trade Practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely.

The practice of making any statement, whether orally or in writing or by visible representation which,—

  • falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
  • falsely represents that the services are of a particular standard, quality or grade;
  • falsely represents any re-built, second-hand, reno­vated, reconditioned or old goods as new goods;

(iv) Represents that the goods or services have sponsor­ship, approval, performance, characteristics, accesso­ries, uses or benefits which such goods or services do not have;

(v) Represents that the seller or the supplier has a spon­sorship or approval or affiliation which such seller or supplier does not have;

(vi) Makes a false or misleading representation concern­ing the need for, or the usefulness of, any goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;

Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;

(viii) makes to the public a representation in a form that purports to be—

(i) a warranty or guarantee of a product or of any goods or services; or

(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or prom­ise is materially misleading or if there is no reasonable prospect that such warranty, guaran­tee or promise will be carried out;

(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;

(x) gives false or misleading facts disparaging the goods, services or trade of another person.

Explanation. – For the purposes of clause (1), a statement that is—

(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or

(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or

(c) contained in or on anything that is sold, sent, delivered, transmit­ted or in any other manner whatsoever made available to a member of the public,

shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;

(2) permits the publication of any advertisement whether in any news­paper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.

Explanation .—For the purpose of clause (2), “bargaining price” means—

(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or

(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;

(3) permits—

(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;

(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;

(3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme.

Explanation — For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time, published, prominently in the same newspapers in which the scheme was originally advertised;

(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, fin­ishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;

(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.

(6) manufacture of spurious goods or offering such goods for sale or adopts deceptive practices in the provision of services.

(2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.

Evolution of This Definition

As we analyse the definition of ‘unfair trade practice’ under consumer protection Act, 1986 is inclusive in nature and is both general and specific and was substituted in 1993 w.e.f. 18 June. The inclusive and general nature of the definition makes the Consumer Protection Act, 1986 self sufficient and complete in itself.

The specific part of the definition is inspired by Sec. 36A of MRTP Act (although section 36A was inspired by decisions given by the FTCA) and the general part of the definition is inspired by Sec. 5 of Federal Trade Commission Act, 1914. So in order to find out the merits of the section 2(1)(r) we have to trace back the history of both MRTP Act, 1969 and FTCA, 1914.

Competition Bill

When India opened up its economy, removing controls and restoring to globalization, there was a need for a competition act. This would result in:

  1. Increase in efficiency
  2. Encourage innovation
  3. Enhance consumer welfare (under choice, lower price, better quality)

The Competition Bill states: “No enterprise or association of enterprises shall enter into any agreement or take any decision or engage in any concerted action in respect of production, supply, distribution, acquisition or control of goods or the provision of services which causes or is likely to cause an appreciable, adverse effect on competition within India.”

The Bill is in two parts:

  1. It deals with prohibition of anti-competitive prices
  2. It looks at the prohibition of the abuse of dominance

Prohibition of Anti-Competitive Prices

The Competition Bill seeks to give statutory powers to Competition Commission of India (CCI) which s the market regulator for preventing anti-competitive practices. Any agreement which causes or is likely to cause appreciable adverse effect on competition are anti-competitive agreement.

There are two kinds of agreement:

  1. Agreements between enterprises at the same stage of production chain, e.g. agreements between rivals. At may be for fixing prices or for limiting production or sharing markets. Such agreements have adverse effects on competition. Such agreements are prohibited.
  2. Agreements between manufacturers and a distributor are normally exempt from the presumptive rule (a presumption that the agreement can cause adverse effect on competition). The agreement between exporters is exempted. The Competition Bill recognizes intellectual property rights.

Public Distribution System (PDS) Interims

India’s PDS supplies subsidized food grains and other essential items commodities through a network of ‘ration shops’. There are approximately 4,62,000 Fair Price Shops. About 160 million families purchase commodities from ration shops each year. The PDS is enormous in terms of expenditure, reach and number of agencies involved in its operation. State governments issue ration cards to their residents and decide on the quantity consumers are entitled to.

Many problems have plagued its operation. PDS suffers from chronic management shortcomings, the extent and timing of procurement, poor forecasting capacity and antiquated logistical system to support storage and delivery functions, inappropriate product mix and cost inefficiencies. Many problems stem from systematic corruption. 3.1% of food grains 36% of sugar gets diverted to the Black Market through agents and middlemen. Buyers are made to sign that they have bought 10 kgs when they have bought only 5 kgs. Corruption also plagues the process of issuing ration cards.

Today the ration card is used only by people who have no piped gas or cylinder gas. Kerosene is issued only to non users of gas for cooking. The ration card is a very useful identity card whether rations are allowed or not. The Government has revived the long defunct PDS even for APL (Above Poverty Live) ration card holders.

Consumers however were disappointed sugar (market price Rs. 35 per kg, ration price Rs. 20). One card was entitled to 2 kgs was ok, but not so with wheat and dal. The market price of tur dal was Rs. 90 kg, the PDS price is Rs. 55 per kg (1 kg per card). But consumers complained it had other grains and chaff mixed in it and took a long time to cook. Wheat was full of stones and insects. The rice supplied could not be cooked and palm oil was used not for cooking but to light diyas.

The government claims to have spent 122 crores a month.

ASCI Codes

Advertising Standard Council of India (ASCI) is the standard council which makes codes (regulation) to protect certain areas and safeguard entities and also makes sure that they are been followed, by keeping a  provision for lodging complaint by consumer related to it. ASCI compiles with IPS i.e Intellectual Property Rights which is an essential part of the codes. There are many other codes followed by advertisers laid down by ASCI which are as follows:

  1. The advertisement should not hurt any cast, religion, race gender, person, etc. or hurt public sentiments or democracy
  2. The advertisement should not promote any hazardous or harmful things or chemicals
  3. If an advertisement calls free goodies then they cannot indirectly charge or include its price with something else. But they can charge shipping
  4. If there is any risk of the product or service or investment they should also lay down the subject matter and not mislead
  5. Not make fun of people of being incapable, short height, dark skin, etc
  6. Certain ads are completely banned like:

Promoting crime, violence, using abusive language, slangs, harmful to friendly relation with other nations, drugs to miscarriage, prevent pregnancy of contraceptives or correct menstrual disorders in women’s

No company can use other company trademarks, logo, slogans in their advertisement for their benefit or defaming them

Certain names, symbols, emblems (as mentioned in emblems act 1950) can be only used with prior permission

International Advertisement Codes

Like India have its codes to protects its rights and prevent misuse of media rights and factors exposed by advertisements, similarly, other countries worldwide have different rules and regulations for advertisement

USA

The USA has its Federal Trade Commission, which is prominent, important and leading regulatory agency for keeping a tab on the practices and workings of the advertisements. For communicating guidelines and rules, it publishes information on industry  study, trade regulation to provide to the media, advertisers and agencies alike

  • A federal communication system (FCC) has its widespread over different ATL media – radio, television, telephone, and related industries
  • Patent and Trademark enforces the Trademark Act
  • LIBRARY OF CONGRESS is a body that protects all registered copyrighted advertisements, boos, creative work and other media stuff like the same intellectual property
  • Office of consumer affair is meant for consumer protection where SECURITY and EXCHANGE COMMISSION is a commission which handles all jurisdictions for advertising
  • The department of justice maintains laws and order, enforces rules and laws in the cases means to be prosecuted
  • Consumer product safety commission has much power that helps maintained law and orders and ensures the cases are prosecuted and readdressed, and proper care is followed for the safety and care of the society. This commission is a powerhouse of many acts like
    A. Flammable Fabrics Acts
    B. Federal Hazardous Substance Act
    C. Children Protection Act
    D. The Standard Protection Act
    E. The Standard for the Flammability of Children Protection Act

CANADA

  1. The Competition  ACT 1985: prohibits all public promotion, and labels it offensive if in the case the promotion material or promise is false or misrepresenting, the promoter may even be prostituted, as such act is a crime
  2. The Canadian Ratio: Television and Telecommunication regulates the quality/ the degree of quality of the advertisement meant to be broadcasted via mediums of tv and radio
  3. For certain products it’s mandatory  for preapproval of commercial in Canada  to make sure  they meet the requirements of the advertisement code, such commercials are that of medicines that are patented, food items, drugs, cosmetics, and food

Other Countries

  1. Many companies use the best, the no 1 but in many countries it cannot be used unless it’s proved like in Germany one can use best in their commercials only if it is scientifically proved eg coca cola campaign was made to change from “Refresh you best” to “Refresh you Right”
  2. Different countries have their different type of ban on commercials like Tobacco is highly restricted to be advertised in Belgium whereas in Austria it’s only banned to be advertised on tv and radio
  3. In France outdoor media is restricted by local ordinances, in Denmark telemarking is banned and outdoor advertising is heavily banned, in Austria telephonic advertisement are restricted

Issues In Advertising

  1. Deceptive advertising: to lure the customers the advertisers and the companies do manny tactics for promotion purpose and during this, they do many false promises like guarantee fairness, etc.
  2. Misleading prices: companies hide the true price of the products by showing more price and then discount where the original price of the product was at they sell showing discount to foster sales
    Airlines, club membership, end of season sale, buy 1 get 1, etc.
  3. Failure To Maintain Standards: many times the brand’s show their products as inferior where they reduce the quality ones the demand reaches, this boost sales for a temporary period but affects the bought get cheated by false promises
  4. Labeling Issues: brands label their products with many different misleading labels like ‘naturals’, ‘organic’, ‘100%pure extracts’ etc but when only if a consumer goes in detail they get to know the truth, here one who buys just the label gets cheated
  5. Surrogate Advertisements: the companies who have restrictions on advertising products like cigarettes, liquor, tobacco have come up with the surrogacy advertisements where they advertise with the like brand name for other products. Their aim is to advertise the brand name only

        Eg. kingfisher soda, Manik Chand mineral water, bagpiper, etc

Self Regulation In Advertising

Due to the unethical & sharp use of advertising in the early 20th Century, a call for self-regulation was made by some advertisers in order to avoid giving the control away to the state. Self-regulation meant certain codes of conducts, ethics, and procedures which was aimed mainly to end misinterpretation, bad taste, deception and portrayal of competitor’s products in an unfair light.

Here is a list of things that are permitted within this procedure:

  • Advertising trade association should mainly concern maintaining high advertising standards.
  • Radio and television should operate close to check advertisements that may lead to unfavourable social reactions.
  • Newspapers while publishing advertisements should publish the tariff charged for each advertisement. This will make sure that there is no unusual fee that they charge above the nominal rate that is charged in the market. This is to make sure that there is no undesirable impact that happens due to the pricing itself.
  • Newspapers should make sure that the advert is published on the edition that it is meant for. Doing it otherwise deliberately will be a grossly unprofessional and it will also violate the conduct & ethics put down by the Press Council of India’s Advertisement Code.
  • Proper communication is a must and so should be qualities like vigilance & understanding between the advertising and the editorial department. This is to avoid acceptance or publication of an undesirable advertisement, just like it is given in the Press Council of India’s Advertisement Code.
  • Editors should make sure that they assert the right while accepting advertisements, especially when it comes to those ads which cross the line between decency and obscenity. (again, as mentioned in the Press Council of India’s Advertisement Code)
  • Editors should take full responsibility for the advertisements & editorials matters that are published in the newspaper. Unless there is a disclaimer which says otherwise in advance.
  • Advertisements must be truthful in description, claims & comparisons. And these should be capable of substantiation on demand. (ASCI Code)
  • Observe fairness in the competition so that the consumers need to be informed on choices in the market place & the canons generally accepted competitive behaviour in business is both served.
  • Abide by the Doordarshan (Indian TV) and AIR advertising codes & for this purpose familiarize yourself with the legislation affecting advertising in India.
  • Here is a list of the DON’Ts that come under this self-regulation act:
  • Individual media & media groups should preferably establish their own code of ethics.
  • Do not possess, sell, let to hire or otherwise promote circulation of any harmful publication in any part of India. (Harmful Publication Act 1955)
  • No price competitions for prize exceeding Rs 1000 a month should be held without a license and no newspaper or other publications should publish advertisements in violation of the above prohibitions. (Prize Competitions 7 Act, 1955)
  • Advertisement – textual, pictorial, graphical or otherwise – should not generate hatred, contempt or dissatisfaction towards Government or between classes of citizens in India.
  • The use of emblems, logo or official seals of the United Nations, or any of its specialized agencies, or government emblems like the Supreme Court, High Court, Rashtrapati Bhavan, Raj Bhavan, luminaries like Shivaji Maharaj, Mahatma Gandhi, and internationally acclaimed human service organizations like St. John Ambulance Association & the Tuberculosis Association of India.
  • This also comes with a condition to not use any names that may suggest official patronage for the product advertised. (Emblems & Names – Prevention of Improper Use Act 1950)
  • Avoid unauthorized use of another person’s or organization’s trademark in your advertisement. This may and will attract civil and criminal liabilities. Do not advertise your goods/services with false trade description which is punishable under law. (Trade & Merchandise Marks Act 1958)
  • Advertisements for drugs for effecting miscarriage or prevention of conception in women or maintaining a man’s capacity of sexual pleasures or menstrual disorders or treatment of venereal diseases, etc. should not be made in any form.
  • False or misleading advertisements for the efficacy of drugs or magic remedies of certain diseases should be avoided.
  • Advertisements to get protection under the Copyright Act, 1957 must be original.
  • Do not publish or cause to be published or take part in the publication of any advertisements representing a woman indecently.
  • Do not claim orally through advertisement or by way of a product label or a product to be of a quality which it does not really possess.
  • Do not print, possess or advertise for sale or distribution of any ticket, coupon or another document for use in prize chit or money circulating scheme or otherwise take part in any such advertisement or prize chit or Act.
  • Advertisers are advertised not to use in their advertisements for drugs or cosmetics any report of a test or analysis made by a government analyst/agency or any extract from such a report.
  • Publicity, propaganda in various ways in connection with an election is prohibited within 48 hours of an election.
  • Do not publish or otherwise display objectionable & unethical advertisements encouraging self-medication & self-treatment.
  • Do not put advertisements directly or indirectly interfering with the property of another such as wrongful pasting of bills upon someone else’s or erecting a hoarding in front of someone’s wall.
  • An advertisement must not obstruct a place to which the public has a right to access not should a dangerous structure be near a highway.
  • Do not publish advertisements with obscene pictures meant merely to make money by titillating the sex feeling of adolescents and adults whom the newspaper circulates or which constitute unwholesome exploitation of sex and money.
  • Advertisements should not even tend to malign or hurt the religious feeling of any community by use of the name of the photograph/pictorial presentation of gods or goddesses in promoting commercial products.
  • Advertisements must not tend to malign or hurt the religious sentiments of any community or section of society.
  • Advertisements must not contravene provisions or any relevant Act.
  • Do not publish unauthorized or unpaid dummy advertisements which are against journalist ethics. (Press Council’s Advertisement Code)
  • Since the success of advertising depends on public confidence, no practice should be permitted which tends to impair this confidence.
  • No advertisement should have the effect of impairing the confidence of the public on the product or its manufacturers for the success of the advertisement depends upon public confidence. (ASCI Code)
  • Advertisements shall not distort facts nor mislead the consumer by means of implications or omissions either by statements or visual presentation. (ASCI Code)
  • Obvious untruths or exaggerations to amuse or attract customers are only permissible if these are not to be misunderstood as genuine qualities of a product. (ASCI Code)
  • Advertisements should not contain any vulgar, indecent or repulsive content which could cause grave or widespread offence. (ASCI Code)
  • Do not make indiscriminate use of advertising in a situation or of the promotion of products which are regarded as hazardous or harmful to the society or to the individuals particularly minors to a degree or of a type which is unacceptable to society at large. (ASCI Code)
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