ABSTRACT
The hidden truth about advertising is that it has taken a different dimension since the beginning of the 21st century. Traditional means of advertising were usually limited to print media, radio and television ads; these were the primary sources of advertising. Companies placed ads in community papers, local radio stations etc. currently, the avenues for advertisements have grown exponentially. Companies advertise their products through different mediums such as electronic billboards, stadium and sport centre advertisements, super bowl and other sporting/entertainment events ads, social media ads. In as much there is the liberty to advertise, it is paramount to note that there are also legal issues surrounding advertising of products in Nigeria. The paper explores the importance of advertisement as a whole and reviews the legal and regulatory aspects of advertisement in Nigeria. Although there are different sectors which generally make use of adverts such as the telecoms sector, financial services industry etc., particular reference will be given to the hospitality and Fast Moving Consumer Goods sectors in Nigeria and how the law, most especially the National Agencies for Food and Drug Administration and Control (NAFDAC) guidelines regulate what the content of their advertisements is. The paper also focuses on the Advertising Practitioners Council of Nigeria (APCON) which is deemed to be the watch dog for regulating advertisement in Nigeria. However with the recent occurrences and legal cases in the past few years, one begins to wonder the effectiveness of this and similar agencies. The paper further considers the anomaly that is presently with the current structure of the APCON Act, there are no provisions for online advertisers. It may appear that the legislators are not keeping in touch with current realities as online advertising is the most popular/used form of advertisement in Nigeria and indeed globally. The findings and recommendations for the paper is that NAFDAC should create stringent laws to regulate advertisement and also proffer stiffer punishments on those who are still in the habit of advertising food/drug products without the approval of NAFDAC. The APCON Act should also be looked into and amended to cover all forms of advertising activities as its current state deprives the Federal Government of internally generated revenue it would have otherwise earned.
Introduction
David Ogilvy (founder of Ogilvy and Mather) once said that “It takes a big idea to attract the attention of consumers and get them to buy your product. Unless your advertising contains a big idea, it will pass like a ship in the night. I doubt if more than one campaign in a hundred contains a big idea.”
Advertising in Nigeria is regulated by a combination of federal laws, state laws, subsidiary legislation and guidelines. According to reports, advertising expenditure in 2017 amounted to N88.1 billion compared to N90.9 billion in 2016.[1] Advertisement (advert) plays a strong role in the economy of Nigeria through the provision of useful information to consumers that tells them about product and service choices, as well as comparing features, benefits, and prices. With more complete information, consumers and businesses often choose to purchase additional products and services.
Advertising is a means of marketing communication used by relevant persons/groups to promote or sell their idea, product or service. It could be done in visual or audio forms; it is not directed at just an individual, rather it targets a groups or community of people. Businesses today utilize different types and forms of advertising to achieve different goals. Advertising today is communicated through different media such as magazines, newspapers, radio, television, billboards, social media, websites etc. Advertising is so important that most businesses incur significant advert expenses yearly: for example, MTN Nigeria spent about N7 billion in 2017.[2]
Although advertising products and services are acceptable and open to all, having the right to engage in advertising practice does not guarantee unlimited freedom to advertise products and services. For example, services which involve prostitution cannot be advertised. This is because there are regulations that govern its content and its impact on consumers. Also lawyers are prohibited from advertising according to Rule 39 Rules of Professional Conducts for Legal Practitioners 2007 (RPC).[3]
With advertising, millions of people can be reached easily to build an audience of loyal customers and brand advocates.
Regulatory Bodies and Legal Provisions for Advertising in Nigeria
Some of the regulatory bodies involved in regulating advertisement in Nigeria include the Advertising Practitioners Council of Nigeria (APCON). APCON is considered the overall watch dog and section 1(d) APCON Act saddles APCON with the responsibility of regulating and controlling the practice of advertising subject to the approval of the Minister of Health, where the advertisement relates to matters of foods, cosmetics, beverages and drugs[4]
By section 5(a) NAFDAC Act, [5] empowers NAFDAC with the responsibility of regulating and controlling the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled water, chemicals and detergents. From the above statutory provision, it can be seen that NAFDAC regulates mostly food, drugs, cosmetics and so on.
The Lagos State Signage and Advertisement Agency (LASAA) established pursuant to the LASAA Law 2006[6] is responsible for the management, regulation and control of the signage and outdoor advertising environment in Lagos State. Thus, they manage all forms of signage and outdoor branding opportunities in Lagos State and this can be seen in section 3 of the LASSA Law.[7]
But even with most of these regulators, the internet has whittled down some of the regulatory impact as some legal issues in being able to do self-advertisement using the internet are either not provided for; or self-advertisement can only be addressed after the fact, not before. An example includes people who advertise various products on Facebook and Instagram but are not regulated.
Advertising ‘Oversight’ of Sectoral Regulator
In carrying out its regulatory functions in Nigeria, APCON once banned all alcohol advertisements from Guinness Nigeria Plc. APCON stated that Guinness had breached Article 39 APCON Code 2013 which provides that “advertisements for alcohol beverages shall not be aired between 6.00 a.m. and 8.00 p.m. on radio and between 6.00am and 10.00 p.m. on television.”[8]
It should be noted that there are product specific regulations that apply to specific products. For example, if you are advertising alcoholic beverages, there are certain standards that must be met as laid out by NAFDAC.[9] This does not necessarily show what happens in practice as many people hardly adhere to the legal requirements. This can be mostly seen in the fast moving consumer goods sector which will be discussed below.
Fast Moving Consumer Goods Sector
Advertisers in the food industry face a distinct set of ethical challenges, since food advertising can have deep psychological impact on consumers, clearly affecting consumer behaviour. The sensual appeals mentioned earlier can connect with consumers on an emotional level, causing them to associate food products with feelings of peace, relaxation or reward. This can boost sales revenue, but it can also trigger addiction.[10]
Food businesses have to be careful not to misuse their influence in a way that harms the public. Children are especially susceptible to irresponsible food advertising.[11] Paragraph 21(f) NAFDAC Food Products (Advertisement) Regulations 2019 (NFPR) states that food advert should not “condone or encourage the consumption of food items that are detrimental to children’s health.” In the UK, the government banned the online advertisement of junk food for children.[12]
One of the shortcomings in the food/pharmaceutical sector is the illegal advertisement of food/pharmaceutical products which is against paragraph 2(1) NFPR which states that “no person shall advertise any products unless it has been registered by the Agency.”[13] This provision has been reportedly observed more in breach by pharmaceutical entities. In 2016 NAFDAC banned the advert of a listed herbal aphrodisiac medicine (Libigal and univasur herbal capsule) manufactured by Kolaq Herbs Limited, Ogun State after discovering that the listing approval of the product had expired in 2006.[14]
The Food and Drugs Act[15] (FDA) also prohibits the advertisement of drugs represented for the treatment or prevention of the diseases specified in its First Schedule. Section 5 FDA makes mention of the fact that it “prohibits advertisement of drugs in any manner that is false or misleading or is likely to create a wrong impression as to its quality, character, value, quality or safety.” However, the reality is that the contrary is rampant in Lagos where individuals can be seen advertising their locally manufactured drugs which drugs in many cases, do not even have NAFDAC approval.
APCON: The Over-All Watch Dog of Advertising?
Most times, the issue of who an advertising practitioner is, always brings with it contrasting views. Section 1 APCON Act provides that;
“There is hereby established for advertising practitioners a body to be known as the Advertising Practitioners Council of Nigeria (in this Act referred to as “the Council”) which shall be charged with the general duty of-
(a) determining who are advertising practitioners;
(b)determining what standards of knowledge and skill are to be attained by persons seeking to become registered as members of the advertising profession and reviewing those standards from time to time;
(c) securing in accordance with the provisions of this Act, the establishment and maintenance of a register of persons entitled to practice as advertising practitioners and the publication, from time to time, of lists of those persons;
(d) regulating and controlling the practice of advertising subject to the approval of the Minister of Health, where the advertisement relates to matters of foods, cosmetics, beverages and drugs;
(e) conducting examinations in the profession and awarding certificates or diplomas to successful candidates as and when appropriate and for such purpose the Council shall prescribe fees to be paid in respect thereof;
(f) performing the other functions conferred on the Council by this Act.
The issue with this is that the Act did not define who an advertising practitioner is in paragraph section 1(a) therefore making it vague. It just stated that they have the right to determine who advertising practitioners are, therefore making it hard to really determine who this Act really covers.
For instance, if an individual advertises hair product for women (maybe Brazilian hair) on an online platform (such as Instagram) and such an individual (not being a “regulated person” does not seek approval from APCON or other regulator, which body has the right to discipline such a person? Apparently, the APCON Act did not specifically describe who an advertising practitioner should be. This is a massive loophole because any individual can decide to advertise any product and with the current standing of the law, APCON will not be legally bound to carry out enforcement actions against such individual.
Therefore if a person or company is not covered by the APCON Act, the penalties for unprofessional conduct in section 25(1) to (5) will not be applicable to such a person. Section 25(2)(a)(e) states that where the advertising practitioner is found wanting- The Disciplinary Committee may give a direction under subsection (1) of this section-
- ordering the Registrar to strike the person’s name off the relevant part of the register;
- suspending the person from practice for such period as may be specified in the direction;
- reprimanding the person;
- ordering the person to pay to the Council any costs of and incidental to the proceedings or any other sums of money whatsoever incurred by the Council; or
- cautioning the person and postponing for a period not exceeding one year any further action against him on one or more conditions as to his conduct during that period, and any such direction may, where appropriate, include provisions requiring the refund of moneys paid or the handing over of documents or any other thing, as the case may require.
Consequently, section 1 APCON Act should be amended to state that APCON will be responsible for the regulation of all advert activities, including ‘online adverts’. Such inclusion will boost APCON’s statutory (enforcement) powers and its ‘stature’, ending credibility to any oversight it may then exercise in that regard.
Currently, section 1(d) APCON Act empowers APCON to regulate and control “the practice of advertising subject to the approval of the Minister of Health, where the advertising relates to matters of foods, cosmetics, beverages and drugs.”[16] From the above provision, it is arguable that APCON is only empowered to “the practice of advertising” where such relate to the specified items and not generally, a result that would be absurd, considering that the APCON Act was enacted in part to “make provisions for the control of the practice of the profession of advertising.”[17] Consequently, it means that an online marketer using online platform like Jumia or Konga does not even need to follow APCON’s requirements for his advert to be legal, because such a person is outside APCON oversight, except such a product is listed in section 1(d) APCON Act.
There have been recent litigation on the above subject. In the recent case of MIC Royal Limited v APCON[18] the Court of Appeal (CA) considered the appropriateness and purview of APCON Act to persons/entities who are not members of the advertising profession. APCON had, through a Violation Notice, imposed a penalty of N500,000 on MIC Royal Limited, a company engaged in the business of funeral homes, carpentry, joinery trade and manufacturing, for procuring the relevant advertisement of their products without its approval. The CA held that APCON’s powers did not extend to persons, including MIC who are not advertising practitioners. The CA ultimately invalidated the Violation Notice issued to MIC.
This judgment reinforces the earlier decision of the CA in APCON v The Registered Trustees of International Covenant Ministerial Council & Ors,[19] where APCON had directed the Respondents to submit their advertisements for vetting prior to publication. The Respondent challenged APCON’s request. The CA upheld the lower court’s decision that the Respondents are not advertising practitioners as contemplated by the APCON Act and consequently, APCON cannot compel the Respondent to seek APCON’s approval prior to placing an advertisement.
From the above case, even online entrepreneurs who advertise on those platforms cannot be regulated by APCON anymore. With the advent of social media, the advertising landscape has changed dramatically over the years. The reality is that social media’s collaborative, interactive and user-generated characteristics have endeared themselves to ordinary users, advertisers and consumers to communicate their shared interests on social media platforms such as Facebook, Twitter and Instagram.
Serving as a contrast to the above cases is UAC of Nigeria Plc & Ors v A-G Lagos State & Ors[20] where UAC filed an action challenging the Lagos State Signage and Advertisement Agency (LASAA) Law 2006. The CA unanimously held in favour of Lagos State Government that the LASAA Law as seen in section 3, is meant to control and regulate outdoor structures in the State and thereby valid and constitutional as an enactment of the Lagos State House of Assembly, pursuant to its powers under section 4(7) 1999 Constitution to legislate on residual matters.
It can be seen that the difference between the LASAA case and APCON case is totally simple and clear: whilst section 3 LASAA Law clearly stated LASAA has the function of controlling outdoor structures to be used for signage and advertisements; APCON Act was not specific enough in stating APCON’s functions instead it just stated that it will govern advertising practitioners without even defining who the advertising practitioners are.
Legal Consideration when Advertising
There are legal restrictions which either legislation or regulatory requirements have imposed on service providers when advertising their products to consumers. Any breach of such provisions would attract sanctions which may be in the form of fines or a ban from advertising the product whether temporarily or permanently. Some legal restrictions include:
- NAFDAC`s ability to provide for some restrictions in advertising products regulated by its sector. Para.1.5, Guidelines For Advertisement Of NAFDAC Regulated Products In Nigeria (GARP) provides that Advertisement of Over-the Counter (OTC) medicines should include the Caveat “If Symptoms Persists after 3 Days, Consult Your Doctor/Physician”.
- GARP encapsulates the fact that advertisement materials for Prescription-only-Medicines (POM) must contain abridged prescribing information including composition, indication, dosage, administration, adverse effects, drug interactions, contraindications, warnings and precautions.
- GARP also states that advertising materials of alcoholic beverages must include the phrases “18+” and “Drink responsibly.” This is often complied with in advertisements of leading and well known alcoholic brands.
- In some instances NAFDAC also states that all herbal medicinal products (without established clinical studies) labels and advert materials shall include the caveat, “These claims have not been evaluated by NAFDAC”: Para. 1.10 GARP.
Recommendations
Due to some of the loopholes in the APCON Act, there is need for adequate regulation of products and services’ advertisement in Nigeria especially as mobile and internet advertising has become a major platform for advertising. Consequently, in order to set and ensure improved cross-sectoral standards of advertising in Nigeria, the following recommendations may be considered:
- The decision to use, influence the use or otherwise of a particular drug should be exclusively left in hands of physicians and medical professionals and not the manufacturers of drug and the mass media.[21] Every information and persuasion with regards to the quality, potency or otherwise of a particular drug product should be directed to qualified physicians and medical professionals who are in a position to scientifically assess the authenticity of drug advertisement claims.[22]
- Advertising content should be scrutinised by ‘legal eyes’ in order to eliminate contents that are deceptive, illegal and offensive. For example, Facebook has a provision for thorough scrutiny of such contents before advertising, as can be seen in Facebook Advertising Policies. Its paragraph 2 states that: “Adverts must not constitute, facilitate or promote illegal products, services or activities. Adverts targeted to minors must not promote products, services or content that are inappropriate, illegal or unsafe, or that exploit, mislead or exert undue pressure on the age groups targeted”.[23]
Therefore advertising agencies in Nigeria should be more effective in examining the authenticity of an advertising content and where such contents are found to be deceptive or such content should be prohibited from display and promotion and the service provider should be penalised.
- In relation to advertising junk foods NAFDAC should create a body that will be responsible for regulating the advert of junk food in Nigeria as this will help reduce the burden on them.
- Stiffer penalties should be meted out to manufacturers of fake and counterfeit drugs who take a step further to advertise such deadly substances to the consumers.
Conclusion
The advertising landscape is experiencing perhaps the most dynamic revolution and technological disruptions, as most businesses who are not necessarily advertising practitioners have found a goldmine of fresh air. Advertising has become so important that businesses actively create adverts almost on a daily basis hence the need for a proper overhaul of the APCON Act to help accommodate those who also advertise online, given that online marketers are not currently regulated by the Act.
It is prescient for ‘advertisers’ to be aware of the potential legal ramifications of their ‘advertising’ initiatives especially with respect to regulated products, in order to obviate legal exposure and liability. Such need becomes more compelling where the ‘audience’ of the advertising is, courtesy of technology and online platforms, almost global.
About the Author
Oghotomo Omovefe is a practicing lawyer at LeLaw (Barristers & Solicitors), Lagos, Nigeria; Email: [email protected]; Phone: +234 818 208 8162
References
[1] Princewill Ekwujuru, ‘Advertisement Expenditure Drops by 3.3% to 8.8bn in 2017’, Vanguard, 21 November 2018: <http://www.vanguardngr.com>accessed 18 March 2019
[2] David Audu, ‘Telcos Dominate Ad Expenditure in 2017-Report’, Independent, 25 October 2018: <https://www.independent.ng/telcos-dominate-ad-expenditure-in-2017-report/amp/> accessed 18 March 2019
[3] RPC is made pursuant to section 12(4) Legal Practitioners Act, Cap. L11 LFN 2004, with a mandate to guide lawyers in Nigeria as to what is or is not unprofessional. However, given the inception of new technological innovations and the resultant opportunities from their functionalities, it has been argued that the rules on professional advertising may require some relaxation to accommodate more modern media platforms and avenues for lawyers to advertise their services in new and more creative ways. See Joseph Onyekwere, ‘Rules on Professional Advertising are too Rigid and Formalistic’ The Guardian, 01 January 2019 :<https://guardian.ng/features/law/rules-on-professional-advertising-are-too-rigid-and-formalistic/> accessed 14 March 2019
[4] Cap A7, Laws of the Federation of Nigeria (LFN) 2004.
[5] Cap N1, LFN 2004.
[6] Law No. 9 of 2006.
[7] Information about LASAA is available on their website at:< www LASAA.com> accessed on 27 March 2019.
[8] Princewill Ekwujuru, ‘Fresh Trouble for Guinness Over Unapproved Advertisement’, Vanguard, 11 November. 2018: < https://www.vanguardngr.com/2011/fresh-trouble-guinness-unapproved-advertisement/> accessed 27 March 2019.
[9] See Guidelines For Advertisement Of NAFDAC Regulated Products In Nigeria (GARP) which provides that alcoholic drinks should contain the clause which states that only persons who are 18 years and above may purchase and consume them.
[10] Eze Amaka, ‘A Review of the Advertisement Restraint Provisions in Nigerian Drug Laws’, International Journal of Business and Law Research 4(1): 1-8, January-March. 2016: <https: seahipaj.org/journals-a/mar-2016/IJBLR/full/ IJBLR-M-1-2016.pdf> accessed 13 March 2019.
[11] According to the Centres for Disease Control and Prevention (America’s “health protection agency”, that “saves lives and protects people from health threats,”: “In the United States, the percentage of children and adolescents affected by obesity has more than tripled since the 1970s.” See https://www.cdc.gov/about/organization/mission.htm and https://www.cdc.gov/healthyschools/obesity/ facts.htm (both accessed 29 March 2019). According to the CDC, 17% of America’s youth are obese as of 2011, and 33% of adults. Food advertisers have a responsibility to encourage physical activity, nutrition education and self-control rather than stimulating impulse and encouraging addiction.
[12] See ‘Children Bombarded by Junk Food Ads on Family Shows’ BBC (News feature), 28 November 2017: <https://www. bbc.com/news/health-42150452> accessed 28 March 2019.
[13] It should be noted that under the NFRR, pharmaceutical products or drugs was not mentioned in paragraph 2(1) but according to NAFDAC in its ACT, Regulated products was defined to include drugs hence its inclusion.
[14] Adaku Onyenucheya, ‘NAFDAC Cautions Media Against Illegal Advertisement of Pharmaceutical Products’, Guardian, 22 February 2018: <https://guardian.ng/features/nafdac-cautions-media-against-ilegal-advertisement-of-pharmaceutical-products/> accessed 19 March 2019.
[15] Cap F32, LFN 2004.
[16] In MIC Royal Limited v APCON (supra), Abubakar, JCA stated that “Section 1(d) relied upon by the Respondent is clear and plain to the effect that in matters under the scope of the Act bordering on advertisement relating to food, cosmetics, beverages and drugs, the approval of the Minister of Health must be obtained.”
[17] See the long title to the APCON Act.
[18] (2018) LPELR-45314(CA)
[19] (2010) LPELR-3630 (CA)
[20] (Unreported) CA/L/928/2008, judgement of Monday, 25 January 2010 (coram Dongban-Mensem (Presided), Rhodes-Vivour and Galinje JJCA).
[21] This may be unrealistic in the case of OTC drugs.
[22] However there is the risk that this may lead to some ethical issues medical professionals could have ‘incentive’ to use/recommend a less effective drug or drug with more side effects to their patients because they are on the ‘payroll’ of the manufacturer of that drug rather than of the more efficacious or beneficial drug. In such cases, it is not the patient or consumer’s health considerations that is uppermost in their minds but to ‘push’ the sales/use of the drug in which they have ‘economic interest’.
[23] This information is available at< https://web.facebook.com/policies/ads/prohibited-contents/illegal-products-or-services?-rdc=1&-rdr>
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