By Ekenobi ThankGod Chinonso.

ABSTRACT

Advertisements and Promotions are as old as man himself, they have remained the most potent and efficient methods through which man tries to convince fellow humans to patronize his business or ideas. The quality of an advertisement however, plays a critical role in either attracting the product or service to consumer, or completely turning consumers off from patronizing the product or service. This accounts for why Promoters are always eager to go extra miles to clothe the product with qualities that will attract whoever sees the advertisement to wish to try out the product. In most cases, qualities which the product does not possess and which similar products of their nature and genius never possessed, would in most cases, be ascribed to the product just to portray it as being superior in quality and character to other products of a similar class. Every day on the radio and television, we hear and see people performing wonders and transforming into supernatural humans after taking certain products, but upon trying out the said product or service, you would then realize that the said products do not actually possess the quality depicted in the advertisement. It is also not uncommon in this part of the world, to hear promoters of herbal medicines clothing their products with extraordinary and supernatural qualities. For instance, you hear them claiming that a particular product possesses the capacity to cure every form of ailments including ailments that haven’t come into existence yet!.

It is on this premise that this article seeks to take an expository and insightful voyage through the provisions of the Law and Codes of Ethics on advertisements and Promotions in Nigeria and how Advertising practitioners can to be safe from the harsh side of the law as it relates to advertisements and Promotions generally.

KEYWORDS: Advertising, Promotion, Advertising Codes, Misleading Advertisements, Liability.

  1. INTRODUCTION

Advertisement is  the most common method of promoting a product or service, this method is usually adopted by companies to enlighten the public about their new product(s) and services, and in some cases, existing products that have either been modified or upgraded, and how the product would be useful and relevant to consumers. The encounter between the serpent and Eve in the Bible was perhaps the first major breakthrough in Advertisement. Recall how in Genesis chapter 3:1-7, the serpent was able to convince Eve to eat of the fruit of the forbidden tree which God had commanded Adam and Eve not to eat from. Although the tree has been in the midst of the garden since creation, yet Adam and Eve never adverted their minds to its beauty and desirability, however, after the serpent advertised the fruit to Eve, the Bible noted thus “And when the woman saw that the tree was good for food, and that it was pleasant to the eyes, and a tree to be desired to make one wise, she took of the fruit thereof, and did eat, and gave also unto her husband with her; and he did eat” (King James Version). Advertisement has equally served as a major source of economic breakthrough for advertising agencies and practitioners, as originators of new products and services are always willing to spend heavily on Promotions and advertisements as it serves as the easiest means of attracting customers and endearing their products to potential customers.

The most common medium of advertisement include interalia: Radio, Magazines, Newspapers, Stadium Adverts, Television, Bill Boards, Wall Posters, Social Media ads, Text Messages, Email Adverts, Street adverts and promoters, etc.

However, these advertisements some of the times, go beyond portraying the actual quality of the product or service being promoted, to exaggerated and dubiously concocted fallacies, thereby misleading their audience into believing that the product contains certain false qualities and capabilities which the advertisers/promoters themselves knew, or ought to have known, were not true. These exaggerated and mendacious claims in most cases bamboozle the undiscerning buyers who either due to ignorance or lack of adequate knowledge of the tactics usually employed by these desperate promoters, end up falling prey for their fallacious claims. Misleading or deceptive advertisements has been defined according to the United States Federal Trade Commission (FTC) to mean “ a representation, omission or practice that is likely to mislead the consumer and practices that have been found misleading or deceptive in specific cases include false oral or written representations, misleading price claims, sales of hazardous or systematically defective products or services without adequate disclosures, failure to disclose information regarding pyramid sales, use of bait and switch techniques, failure to perform promised services, and failure to meet warranty obligations”.

Consequently, the law in its bid to protect the public from these desperate promoters, have laid down certain conditions that advertisements and Promotions must meet if they are not to attract sanctions and penalties to their originators and the advertising agency. These conditions are mandatory and aimed at ensuring some degree of responsibility and accountability amongst advertisers and promoters, and to also maintain international best practices in advertising. This is with a view to protecting unsuspecting members of the public from falling prey to false and misleading advertisements, whilst equally ensuring that the advertising agencies maintain some degree of decency, locality in content and that advertisements generally are in tandem with the expectations of the Nigerian Commercial and socio-cultural environment.

This article seeks to appraise the legal issues around advertisements and Promotions in Nigeria: The Laws and institutions regulating advertisements/Promotions in Nigeria, legal requirements for safer a advertisements/ Promotions, Sanctions for non-compliance with the law, the applicability of the laws to non advertising practitioners and then Conclusion.

  1. LAWS REGULATING ADVERTISEMENT/PROMOTIONS IN NIGERIA

Advertisement and Promotions in Nigeria are regulated by various legislations; Acts of the National Assembly, States’ Laws and Subsidiary Legislations. The essence is to ensure and maintain some minimum standards in advertising generally. The Nigerian Communications Commission Guidelines on Advertisements and Promotions(The Guidelines) under Part 2 paragraph 3, which is one of such laws regulating advertisements, defined advertisements to mean “any message, the content of which is controlled directly or indirectly by the advertiser, expressed in any language and communicated in any medium with the intent to influence their choice, opinion or behavior.”

On the other hand, part 2 paragraph 6 of the Guidelines, defined Promotion thus “any message, the content of which is controlled directly or indirectly by the advertiser, expressed in any language and communicated in any medium with the intent to influence their choice, opinion or behavior in order to receive a reward or benefit”

Below are some of the laws regulating advertisements in Nigeria:

  1. Federal Competition and Consumer Protection Act (FCCPA) 2019;
  2. The Nigerian Code of Advertising Practice, Sales Promotion and Other Rights/Restrictions on Practice (The Advertising Code) 2013.
  3. Advertising Practitioners Council of Nigeria (APCON) Vetting Guidelines (Vetting Guidelines) 2017.
  4. Standards Organisation of Nigeria Act, 2015 (SONA).
  5. National Agency for Food and Drugs and Administration and Control (NAFDAC) Act.
  6. Guidelines For Advertisement Of NAFDAC Regulated Products In Nigeria (GARP).
  7. Nigerian Communications Commission Guidelines on Advertisements and Promotions(The Guidelines)
  8. Advertising Practitioners Council Of Nigeria (APCON) Act No. 55 of 1988, CAP A7 Laws of the Federation of Nigeria 2004.
  9. BODIES REGULATING ADVERTISEMENTS AND PROMOTIONS IN NIGERIA

The following are the bodies responsible for regulating advertisements and promotions in Nigeria, and the enforcement of laws dealings with same, especially as they relate to foods, cosmetics, drinks, Banking Services, Telecommunications, drugs, etc.

  1. Advertising Practitioners Council of Nigeria (APCON);
  2. National Agency for Food, Drug Administration and Control (NAFDAC);
  3. Nigerian Communications Commission (NCC);
  4. The National Broadcasting Commission (NBC);
  5. Federal Competition and Consumer Protection Commission (FCCPC).
  6. LEGAL PREREQUISITES FOR SAFER  ADVERTISEMENTS IN NIGERIA

Below are some of the requirements for a penalty free  advertisement in Nigeria as provided by the various laws listed above:

  1. The Advertisement/Promotions must be legal, thus it must not appear to promote illegality or seek to advertise or promote goods or services that are prohibited by any rule of law or regulation in force in any part of Nigeria;
  2. The advertisement must be decent. Thus advertisements which have as their objects, the promotion of lewdness, debauchery and licentiousness, are highly prohibited and discouraged.
  3. The contents of such advertisements/promotions must be an honest expression of the product itself; It must be truthful and a true reflection of the quality and character of the product, devoid of misrepresentations or exaggerations as to the actual quality of the product or service.
  4. The contents of the Advertisement must be respectful and mindful of Nigeria’s cultural diversity. It must not seek to bring to disrepute any other product of a similar kind. It must also not launch an attack on the image and reputation of any individual, or subject the cultural trait of an ethnic group in any part of Nigeria to mockery or opprobrium.
  5. Such advertisements must not violate any constitutional tenets or relevant lawful enactments in force in any part of Nigeria.
  6. Such advertisements should not be seen to be exploiting, depicting, or suggesting sexual behaviour either apparently or impliedly.
  7. The Product specifications must conform to the Nigerian Industrial Standards as stipulated by the Standards Organisation of Nigeria (SON), and must not fall below the stipulated minimum standards. Certifications must equally be obtained from the Standards Organization of Nigeria where necessary, in respect of the product or service.
  8. Significant parts of the contents of the advertisement/Promotions should exhibit local content, and should be majorly broadcasted in the English language which is Nigeria’s lingua franca.
  9. The object of such advertisement/promotions ranging from statements to pictures utilized, must not breach any domestic or international copyright laws or other intellectual property rights, save with the permission (express or implied) of the third party owner of the Intellectual Property.
  10. The advertisement/promotion must exhibit the real price of the product, which must be the actual price. And such price must be stated and expressed in the naira equivalent.
  11. Descriptions, claims or illustration in any advertisement must be capable of ascertainment and verification, and devoid of assumptions, wild and dubious exaggerations.
  12. The product or service being advertised must conform to the descriptions as represented in the advertisement, it must be devoid of false statements or misrepresentations of any kind.
  13. Where models are used in advertising any product or service, they must be Nigerians, save where occasion requires the use non-Nigerians for such advertisement. Where however a non-Nigerian model is used, the advertising company must pay the sum of 500,000 naira to the Advertising Standards Panel (ASP) for each content or version of the advertisement, the list is by no means exhaustive.
  14. SANCTIONS FOR NON-COMPLIANCE WITH THE LAW

To underscore the premium the law attaches to advertisements and Promotions, certain Sanctions have been laid down in our laws for non-compliance with any requirements of the law by advertisers and Promoters. The essence of these penalties is to give more efficacy to the laws and to eliminate carelessness and negligence amongst advertisers whilst equally maintaining some minimum level of decency and responsibility in advertisements generally.

Any Advertiser or promoter in Nigeria who violates the provisions of any of the Laws regulating advertisements, shall if found guilty, be punished with any of the following by the Council of APCON:

  1. Warning from the relevant Regulatory body;
  2. Temporary Suspension of License or Registration;

iii. Removal of the Person(s) involved from the register of practice;

  1. Reduction of Scope of its Licence;
  2. Reprimand;
  3. Fine, the list is by no means exhaustive.

This is without prejudice to the right of any member of the public who may have suffered any injury in reliance on the false representation or misleading advertisement, to seek redress against the advertiser/promoter in Court and obtain damages in a civil action against the advertising agency and the Advertising company (producers of the product), this is also in addition to the right of that person to repudiate the contract, Museprime Properties v. Adhill Properties [1990] 36 EG 114. Both the producer and advertising agency owe a legal duty of care to the potential consumers, to disclose the genuine informations about the product, having regards to their superior knowledge of the actual capabilities of the product, as Lord Denning M.R. held in ESSO Petroleum Co. Ltd. v. Mardon  (1976) QB 108 “If a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another…..with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable“. Hence, where in the course of advertisement, the advertisers makes certain statements which to their knowledge, are not true, or which are partially false, or where the agency negligently misstates the real State of facts, any member of the public or the targeted class, who relies on the misrepresentation to act to his own detriment, is entitled to action jointly, against the Advertising agency and the producers Hedley Byrne v. Heller & Partner Ltd (1964) AC 465.

However, not every advertisement which appears to be misleading in the eyes of an individual would be treated as such, rather, certain factors will be put into consideration; factors such as:

the probability of such advertisement misleading a reasonable person placed in the complainant’s position; whether the complainant belongs to the class of persons to whom the representation was made; whether the misrepresentation of facts complained of was actually instrumental in influencing the complainant to buy the product; and whether the complainant would otherwise, not have made up his mind to purchase the product but for the deceptive advertisement. In the case of Smith v. Chadwick [1884] 9 AC 187, which involved the issuing of a prospectus of a company depicting a false statement claiming that a certain renowned person was on the board of directors of the company. However, in an action for misrepresentation the plaintiff admitted under cross-examination that the alleged false statement never in any way influenced his choice. It was held that in the absence of inducement, he could not succeed in action for misrepresentations against the company.

It needs also be noted that a deceptive advertisement can be directed at not just an individual, but also to the whole world, hence, the advertising agency and the advertising company (producers of the product), will jointly be liable to any member of the public who reasonably placing reliance on the alleged misleading contents of the advertisement, makes up his mind to purchase the product. Recall the holding of the Court in the celebrated locus classicus case of Carbolic Smoke Ball Co. v. Carlill  [1893] 1 QB 256, where the Court made it clear that an offer (in this case, an advertisement) can be made to the whole world, and whoever comes forward to accept the offer or perform the acts stipulated therein, automatically, creates a binding contract with the offeror.

APPLICABILITY OF THE APCON ACT TO NON ADVERTISING PRACTITIONERS.

By dint of the provisions of the Advertising Practitioners Council Of Nigeria (APCON) Act No. 55 of 1988, CAP A7 Laws of the Federation of Nigeria 2004, the Advertising Practitioners Council Of Nigeria (APCON) was established and empowered as the commission charged with the responsibility of regulating advertisements in Nigeria and other matters connected with it. Pursuant to this and in the exercise of its powers and duties under the act, the governing council of APCON, issued the 5th Nigerian Code of Advertising Practice & Sales Promotion which took effect from January 2013. “The Code is enforced by the Advertising Standards Panel (“ASP”) through a vetting process to ensure that all advertisements conform with prevailing laws as well as the code of ethics of the advertising profession. The Code also prescribes a minimum penalty of N200,000 (Two Hundred Thousand Naira) for the publication or exposure of an advertisement without the ASP’s approval”. Following the issuance of this code, advertising practitioners are obligated to submit proposed advertisements to the ASP for the vetting process before it can be publicised. Failure to do so, would lead to legal Sanctions by way of a punitive fine as prescribed by the code.

This code however, applies only to advertising practitioners and does not apply to non-practitioners. Hence, attempts by the commission to extend the application of the APCON Act and Code to non-practitioners, has been rejected by the Court. Thus, in MIC Royal Limited v. APCON (Suit No. CA/L/1140/2016 ( decided on July 5, 2018) and APCON v. The Registered Trustees of International Covenant Ministerial Council & Ors. (2010) LPELR (CA) 3630. In both cases, the Court of Appeal held that Act and the Code only applies to the members of the Advertising Profession, and do not apply to non members. Hence, APCON’s regulatory powers are only limited to members of the Advertising Profession, and do not extend to nonmembers.

CONCLUSION

It is apparent from the foregoing that Advertisers and Promoters have a duty in law, to ensure that their advertisements and promotions are done in accordance with relevant statutory and regulatory guidelines. This would protect them against being sanctioned by the relevant regulatory bodies for going in breach of the provisions of the Advertising Laws and Codes of Ethics. Advertisements must be done in a way that it does not mislead unsuspecting members of the public about the real character and quality of the product being promoted, otherwise, the advertising agency and the originator company concerned, may be held liable for breach of the law and be subjected to legal and disciplinary sanctions, in addition to damages in civil actions by the injured complainant.

REFERENCES

  1. Scott, “General Principles and Requirements for Advertising in Nigeria” (2020) <https://www.mondaq.com/nigeria/advertising-marketing-branding/880690/general-principles-and-requirements-for-advertising-in-nigeria.

Banwo and Ighodalo, “Court Of Appeal Rules On The Applicability Of The Advertising Practitioners (Registration Etc.) Act And The Nigerian Code Of Advertising Practice & Sales Promotion” (2018)<https://www.banwo-ighodalo.com/news/court-appeal-rules-applicability-advertising-practitioners-registration-etc-act-nigerian-code-advertising-practice-sales-promotion.

NCC,”Guidelines On Advertisements and Promotions” <https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.ncc.gov.ng/docman-main/legal-regulatory/guidelines/52-guidelines-on-advertisements-promotions/file&ved=2ahUKEwiWgu2ZqdnyAhV0lFwKHeUjCrQQFnoECCwQAQ&usg=AOvVaw3Isw30xoJqyX-xn5R96581.

ABUAD LAW REVIEW, “Coasting Along: Legal Regulatory Issues in Advertising in Nigeria” <https://djetlawyer.com/legal-regulatory-issues-in-advertising-in-nigeria/.

STATUTES REFERRED TO

  1. Federal Competition and Consumer Protection Act (FCCPA) 2019;
  2. The Nigerian Code of Advertising Practice, Sales Promotion and Other Rights/Restrictions on Practice (The Advertising Code) 2013.
  3. Advertising Practitioners Council of Nigeria (APCON) Vetting Guidelines (Vetting Guidelines) 2017.
  4. Standards Organisation of Nigeria Act, 2015 (SONA).
  5. National Agency for Food and Drugs and Administration and Control (NAFDAC) Act.
  6. Guidelines For Advertisement Of NAFDAC Regulated Products In Nigeria (GARP).
  7. Nigerian Communications Commission Guidelines on Advertisements and Promotions(The Guidelines)
  8. Advertising Practitioners Council Of Nigeria (APCON) Act No. 55 of 1988, CAP A7 Laws of the Federation of Nigeria 2004

ABOUT THE WRITER
Ekenobi ThankGod Chinonso is a Third Year Student, in the faculty of Law, Ahmadu Bello University, Zaria, Kaduna State, Nigeria.
Phone number: 07067942565.      Email: dthankgod51@yahoo.com.
LinkedIn:. https://www.linkedin.com/in/ekenobi-thankgod-chinonso-a4a1821aa

For more information about the Certificate in ADR Skills Training and the affiliate marketing program, visit www.schoolofadr.com, email info@schoolofadr.com, or call +2348053834850 or +2348034343955.