Advertising is a vital marketing tool utilized by businesses to promote their products and services. Businesses engage in advertising for various reasons, some of which include: to inform the public or their target audience about a new product or service, draw attention to additional features of a product or service, acquire recognition and goodwill in the marketplace, and promote their brand.
Advertising is regulated in Nigeria under both general and sector-specific laws, regulations, and guidelines, which stipulate principles and requirements for advertising. The following laws, guidelines, and regulation provide general principles and requirements for all forms of advertising in Nigeria:
1. The Nigerian Code of Advertising Practice, Sales Promotion and Other Rights/Restrictions on Practice (“The Advertising Code”)
2. Advertising Practitioners Council of Nigeria (APCON) Vetting Guidelines (Vetting Guidelines)
3. Federal Competition and Consumer Protection Act (FCCPA)
4. Standards Organisation of Nigeria Act, 2015 (SONA)
The major administrative body responsible for regulating advertising in the country is the Advertising Practitioners Council of Nigeria (APCON). Other regulatory bodies include the National Agency for Food, Drug Administration and Control (NAFDAC), Nigerian Communications Commission (NCC), Central Bank of Nigeria (CBN), the National Broadcasting Commission (NBC) and Federal Competition and Consumer Protection Commission (FCCPC), among others. These bodies regulate advertising of specific products and services in Nigeria, such as food and drugs, telecommunication services, cosmetics, etc. Some of the general principles, and legal requirements for advertising in Nigeria are highlighted below.
1. General Principles on Advertising
· According to the Advertising Code, “all advertisement in Nigeria or directed at the Nigerian market shall be legal, decent, honest, truthful, respectful, and mindful of Nigeria’s culture, constitutional tenets and relevant lawful enactments.” Therefore, all forms of advertisement must be legal i.e., must not be contrary to any law in Nigeria. It must also be honest and true, respectful and cognizant of Nigeria’s culture and the provisions of the constitution and local laws.
· Models used in advertisements to promote products or services must be Nigerians except where the concept specifically requires non-Nigerians to act in this capacity. Where the concept and business objective of the advertisement requires non-Nigerians, the sum of N500, 000 is required to be paid to the Advertising Standards Panel (ASP) for each content or version of the advertisement. Due to this requirement, the ASP may also require substantial reasons for using non-Nigerians as models from the applicant.
· According to Section 123 (1) of FCCPA, a producer, importer, distributor, retailer, trader or service provider shall not make any false representation to a consumer in a manner that is likely to imply any false or incorrect representation concerning those goods. Similarly, Article 84 of the Advertising Code provides that the product advertised must conform to the descriptions as provided in the advertisement. It must be an exact replication of the descriptions and features as mentioned in the pages referred to above.
· The descriptions, claims or illustration in an advertisement shall be subject to empirical proof or capable of substantiation. The ASP may require that advertisement content be substantiated and the evidence of claims be provided for testing. This is to ensure and confirm that the claims and illustration(s) stipulated in the advertisement are true and verifiable.
· Advertisements should not exploit, depict, or suggest sexual behaviour either in obvious or implied context. Advertisements must be decent and should not contain statements, pictures or illustrations which either suggest or imply sexual behaviours.
· The Advertising Code provides that the content of an advertisement including, statements and pictures used, must not breach any Nigerian copyright or international copyright laws or intellectual property rights. If a Company has or intends to use a third party’s copyrighted works or intellectual property rights, adequate permission should be obtained from the owner of such right or referenced in the advertisement content.
· Advertisements should provide the price for each product in the currency of the Federal Republic of Nigeria (i.e., Naira). Section 115(1) of FCCPA stipulates that “An undertaking shall not display any goods or services for sale without adequately displaying to the consumer a price of those goods or services. Also, majority of the advertisement content should be Nigerian, and predominantly rendered in the English language as this is the applicable language in Nigeria.
· Product specifications are required to comply with the Nigerian Industrial Standards provided by the Standards Organisation of Nigeria (SON). The SON provides standards and quality assurance services for all products, services and processes in Nigeria in line with international best practices. Some products require certification by the SON to verify that they conform to the applicable National Industrial Standards or approved equivalents, and technical regulations.
· In addition to any specific sanction provided in the Advertisement Code, Article 141(b) of the Advertising Code provides a list of sanctions which the Council of APCON shall apply where provisions in the APCON Act, the Advertising Code, other regulations have been breached. These sanctions include reprimand, warning, fine, reduction of scope of licence, temporary suspension of registration or licence, removal from the register of practice, among others.
2. Requirements for Advertising
· Article 21 of the Advertising Code stipulates that all advertisements except those for public service announcements, goodwill messages, obituaries and vacancies shall be presented for vetting and approval by the Advertising Standards Panel (ASP) before exposure to the public. All media houses are required to demand an ASP Certificate of Approval, before placing any advertisements on their platform. This is also reiterated in the Vetting Guidelines. Any media house that exposes an advertisement without the ASP Certificate of Approval will be liable to a minimum penalty of N500,000.
The requirements for pre-approval of advertising materials are contained in the Vetting Guidelines. According to the Vetting Guidelines, an application must be made by an APCON registered practitioner, which would be forwarded to the Registrar of APCON together with all the required documents. The ASP recognizes that certain forms of advertisements may require submission to relevant self-regulatory organizations for clearance before they are presented to it for vetting. Examples of such organizations include; CBN, NAFDAC, NBC and FCCPC. The requirements for pre-approval of advertising materials are stipulated below:
a. A formal application letter for vetting addressed to the Registrar/CEO APCON.
b. ASP form 001 filled and duly signed by a registered advertising practitioner not below an Associate Member (ARPA), stating his/her APCON Registration number.
c. Product’s NAFDAC Certificate or payment advice (where necessary) must be attached.
d. The Client’s letter of authorization to advertise the product/service, signed by an APCON registered practitioner.
e. The material concept/version; professionally produced copy/layout, in color must be submitted for approval before the issuance of the ASP’s Certificate.
f. Product samples of not less than 12 (twelve) units must be supplied.
g. Evidence of the product registration with the appropriate government agency.
h. Demonstrations might be necessary in some cases and advertisers or their agencies must be prepared to provide the demonstration.
The advertisement material being vetted should not be exposed unless a Certificate of Approval from the ASP, signed by the Registrar of APCON has been received by the applicant. An Agency which creates and/or places for publication or exposure of an advertisement without the ASP Certificate of Approval will be liable to a minimum penalty of N500, 000. Also, an advertiser who authorizes the publication or exposure of an advertisement without the ASP Certificate of Approval will be liable to a minimum penalty of N500, 000.
The approval to advertise could be withdrawn or revoked by the ASP after it has been granted, if in the opinion of the ASP any condition for such approval has been violated, altered or changed in any way or new facts have emerged to affect the validity or authenticity of earlier data/claims submitted by the applicant. The approvals from the ASP contain identification codes which must be reflected in all advertising materials.
In a recent directive released by the ASP, the ASP stated that all communication materials regardless of the medium to be exposed must be duly vetted by APCON before exposure to the public. These materials include internet-based advertisements and should be produced for approval before exposure on any social media platform. It was also mentioned that the provisions of the Advertising code should be adhered to when considering exposing internet-based advertisements and related marketing communications.
In monitoring the compliance of advertisements with laws and regulations, APCON’s Monitoring Unit, in addition to other services, utilize the services of media monitoring agencies. Members of the ASP and APCON also provide monitoring information. The public also report cases of unwholesome advertisements to APCON. APCON has also been able to curb some illegal and unapproved advertisements by monitoring advertisements. For instance, in 2013, APCON banned all alcohol advertisements on television from Guinness Nigeria Plc. Guinness aired an advertisement outside the prescribed periods allowed by article 39 of the APCON Code of Advertising and Promotion guidelines, which provides that advertisements for alcohol beverages shall not be aired between 6.00am and 8.00pm on radio and between 6.00am and 10.00pm on television. APCON also withdrew all certificates of approval issued to Guinness for advertisement of alcoholic beverages from 2012. The ban was later lifted after compliance by Guinness.
The Court of Appeal in APCON v. the Registered Trustees of International Covenant Ministerial Council (ICMC) & Ors, held that religious organizations are excluded from APCON’s oversight. In this case, the Plaintiffs/Respondents filed an action against Defendant/Appellant based on a letter from the Appellant requesting the Respondents to submit their religious advertisements for vetting. The Respondents contested the power of the Appellant to review advertising material of a religious nature and argued that it constituted an infraction of their Constitutional rights based on sections 10, 28, 39, 40 and 42 of the 1999 Constitution. The Federal High Court upheld the contentions of the Respondents on the ground that the Advertising Practitioners Registration Act, Cap. 7, Laws of the Federation of Nigeria 1990 as amended by Decree No. 93 of 1992 imposed no limitations on the right to freedom of worship as guaranteed under section 38 of the 1999 Constitution. The Appellants thereafter appealed to the Court of Appeal which affirmed the judgment of the lower court and held that the APCON Act imposes a restriction on the right of freedom of worship as guaranteed under section 38 of the Constitution, and APCON has no right to compel religious organizations to produce religious materials for vetting before being displayed, broadcast or aired. The Court also held that APCON does not possess expert knowledge of Islamic matters, traditional religion or biblical teachings as contained in the Holy Bible to be able to regulate the practice of the various religions.
The general principles and requirements highlighted above are applicable to all advertisements that require approval by the ASP. The ASP works closely with regulatory agencies to ensure conformity of advertisements with the applicable laws. The Nigerian Communications Commission (NCC) monitors compliance with advertisement regulations in the telecoms sector and may impose sanctions on service providers for non-compliance with its guidelines on advertising. For instance, in the NCC Compliance Monitoring and Enforcement Report (Quarter 1- 2018), it was reported that the attention of the NCC was drawn to an advert in Thisday Newspaper regarding the advertisement of S9/S9+ promotional offer by 9mobile, and the monitoring unit noticed a slight departure from what was approved by the commission. Also, 9mobile did not stipulate clearly and in understandable terms the conditions of the promotional offer, which is contrary to section 4(xv) of the commission’s Guidelines on Advertisements and Promotions. This was said to be in breach of the NCC advertising guideline and the case was transferred to the enforcement unit for necessary action.
Businesses, individuals, advertisers and media house are required to comply with the regulatory requirements and obtain the necessary approval(s) to avoid the sanctions prescribed in the APCON Advertising Code including sanctions imposed by other regulatory bodies, protect the image of their brands and accord due regard and consideration to consumer protection and consumer rights. The apparent lack of widespread and consistent enforcement of advertising laws and regulations should not serve as a basis for non-compliance, as what appears to be selective/minimal enforcement may result in your organization being utilized as a test case or to set an example for others.
For further information on this article and area of law, please contact
Bisola Scott at S. P. A. Ajibade & Co., Lagos by
Telephone (+234.1.270.3009; +234.1.460.5091) Fax (+234 1 4605092)
Mobile (+234.811.389.8102, +234.817.939.0319)