Mumbai: The recent order of Bombay High Court has restrained ASCI from disallowing commercials of parties that are not a member of the self-regulatory council.
Justice Kathawalla, vide an ex-parte order dated May 4, 2018, has stated that the “self-regulatory Council cannot act as a statutory regulator, in a suit filed by Puro Wellness Private Limited against the Advertising Standards Council of India (ASCI).
The suit was filed against certain decisions filed by the Consumer Complaints Council (CCC) of ASCI in respect of three television commercials featuring Bollywood sActor Anil Kapoor, promoting the pink-coloured salt ‘PURO Healthy Salt’, manufactured by Puro Wellness, which is an unrefined Himalayan pink rock salt(an edible mineral salt known since ancient times as Saindhava Lavana)
In his order Justice Kathawalla has said, “This Court has repeatedly observed that the defendant (ASCI) in the garb of acting as a voluntary self-regulatory Council cannot act as a statutory regulator and cannot arrogate to itself the powers of restricting/restraining or causing the restriction/restraint of any commercial advertisements belonging to a party who is not a member of the ASCI. Prima facie, I agree with the submissions made on behalf of the Plaintiff (Start-Up Firm) that since it is not a member of the ASCI, there exists no legal relationship between the firm and the Council and it cannot exercise its jurisdiction over the firm whether directly or indirectly in the garb of regulating its own members.”
“The firm has made out a strong prima facie case in its favour. The inability of the firm to telecast and communicate the television commercials and continue with its claims with regard to the product of the firm in light of the Impugned Decisions is likely to cause irreparable harm, injury and damage to the said firm,” Justice Kathawalla observed. “It is in these circumstances, that the firm deserves protection through an ad interim order.
The Bombay High Coutrt order restraining its power against the misleading advertisemnets launched by non-mebers of ASCI undermines the body’s power and purpose of the body and this could also becomes a loop holes for many to escape the survialnce of ASCI.
ASCI, is a self-regulatory voluntary organization of the advertising industry in India and it is committed to the cause of self- regulation in advertising ensuring the protection of the interest of consumers. Its role has been acclaimed by various Government bodies including The Department of Consumer Affairs (DoCA), Food Safety and Standards Authority of India (FSSAI), Ministry of AYUSH as well as the Ministry of Information and Broadcasting.
It may be noted that in January 2017, the Supreme Court of India in its judgment has also affirmed and recognized the self-regulatory mechanism as an effective pre-emptive step to statutory provisions in the sphere of advertising content regulation for TV and Radio in India.
The order is sure to have future ramification as it sets a precedent for many to jump the rope an it certainly puts a break in the aggressiveness of ASCI that has upheld Complaints against 193 Advertisements out of 290 in February 2018.