SDCs no silver bullet, but an important cog in the wheel: Experts
The Ministry of Information and Broadcasting (MIB) has issued a new regulation requiring advertisers only in the food and health sectors to submit a Self-Declaration Certificate (SDC) before publishing or airing their ads. This move aims to improve consumer protection by ensuring ads comply with existing regulations and avoid misleading claims. However, legal experts question whether SDCs alone are sufficient.
Self-Declaration: A step forward, but not a silver bullet
According to stakeholders and subject matter experts, while the SDC adds a layer of accountability, its effectiveness depends heavily on honesty. Legal experts like Subhash Bhutoria, Founder of Law SB, say SDCs can be a ‘genuine safeguard’ if coupled with strict enforcement and regular audits. However, they warn it could become a mere ‘formality’ without proper oversight.
“SDC is an additional mandate to protect consumer interest and is not a conclusive step in any manner. The issue of whether an advertisement is ‘misleading’, can only be determined upon proper investigation and adjudication by relevant authorities under various laws. To an extent, SDC is a prerequisite to publish/broadcast an advertisement and does not impose any other liability on the advertiser/advertising agency, which is independent of the liability under the relevant laws, as such,” Bhutoria explained.
For Alay Razvi, Partner at law firm Accord Juris, SDCs are nothing but a formal attestation by the company that their product has complied with certain standards and regulations.
“It will only streamline the compliance process and reduce delays. But when it comes to transparency and accountability in protecting consumers, this does not solve the purpose,” he said.
Who's responsible? Brands still on the hook
“Advertisers and advertising agencies bear the majority of the responsibility and accountability for the content of commercials. They have an obligation to make sure that their advertisements abide by all applicable laws and rules. These organisations would be responsible if any goods or service turned out to be defective or violated rules,” said Biplab Lenin, Partner, Cyril Amarchand Mangaldas.
“The latest mandate requires media stakeholders, including publishers, printers, and broadcasters, to verify the authenticity of self-declaration uploads before releasing advertisements, thereby involving them in the compliance process,” he added,
Overall, laws such as the Food and Safety Standards Act, 2006, Food Safety and Standards (Packaging And Labelling) Regulations, 2011 the Drugs & Cosmetics Act, 1940, the Drugs and Magic Remedies (Objectionable Advertisement) Act 1954, Consumer Protection Act, 2019, and the rules framed in each of these laws, governs the advertisement relating to food and health products and services.
While these acts prohibit misleading, deceiving or false advertisement, violation of which can attract penalty, none of these acts provides for any compliance such as SDC.
Global best practices: Are other countries doing similar things?
India isn't the first to explore SDCs. While uncommon, some countries have similar practices. However, India's system now focuses specifically on food and health advertising, which sets it apart.
“SDC will be a formality but cannot be effective. European unions do make such forms mandatory but they ensure that strict regulatory controls and market surveillance is maintained,” said Razvi.