Monday, November 20, 2006

Read this and get an advice – FREE!

This article appeared on today's<20th November> New Age as an Op-Ed piece under the title of "Is Advertising a Crime"

BdNews24 reported recently:

“GrameenPhone, Aktel sued

Mobile giant GrameenPhone and its rival Aktel were sued Wednesday on charges of deceiving subscribers with advertisements.

Advocate Rafiqul Islam charged GrameenPhone Managing Director Eric Aas and Marketing Director Rubaba Doula Matin with 'deceiving the subscribers by alluring advertisements.'

The lawyers alleged mobile operators run 'alluring advertisements' on newspapers and televisions and 'deceive' the general people to make windfall profits.

They also alleged that the operators in an advertisement printed and aired on November 7 offered special prizes for subscribers.

Subscribers spending between Tk 300 and Tk 500 will be in with a change [sic] to win a camera phone through lottery, Plasma TV if they spend Tk 501 to Tk 1000, Japanese car for Tk 1001 to Tk 3000 and an apartment for Tk 3000 and beyond.

The lawyers said such advertisements are illegal as they violate the Section 295 (b) of the Code of Criminal Procedure.”


Isn't that the point of advertising, to allure consumers to buy products or services on offer?

As most who read this blog know, I work in advertising. So I guess I am a guilty party as well. And this is my defence.

I know it is fancy to blame advertising for the evils of consumerism. I was shocked to learn that my young nephew at a junior class in a fancy Australian school in Dhaka was taught that advertising was evil and all of it is a lie. And often in polite company I am asked, "but do you actually believe what an ad says?" Isn’t it easy to make advertising the scapegoat for all the flaws of our desire? After all if you did not see the ad for the shimmering new mobile phone you might not ever want one.

But let us examine some of the finer points of this notion. We advertising professionals believe that we promote competition and hence benefit consumers in the end. Without the ad fuelled marketing blitz would call rates have dropped in the manner it has recently? And it is not only limited to consumer advertising. Bangladesh's success story in population control is in a large part attributable to the superb work done by SMC [Social Marketing Company - the owners of Raja, Maya, Hero, Nordette, Minicon, Sensation and Panther] and their advertising agencies (yes, we are one of them).

Advertising we believe gives a consumer choice. I could feel thirsty and want to drink Coke. Or Pepsi. Or RC Cola. Or Uro Cola. Or Pran Cola. Or Suncrest. Or Mecca Cola. Or Mojo (our client). If there were no advertising, then how would the consumers know the bevy of alternatives available?

Advertising encourages better products. I still remember when Mr. Mustafa of Kollol Industries came to us first with the idea of facial tissues in the early 90s, we secretly wondered, "who in Bangladesh would pay money and use this product?" Good sense prevailed and the brand Fay was born. After years of successful advertising, today it is the market leader in a vibrant product category with many brands. The quality of the product too has not stayed static. Faced with competition, clients diligently invest in R&D of products, and to use an advertising parlance "new, improved" versions come to market in a regular stream. Let me remind you of the boom in advertising that started in mid to late 90s. Out of nowhere came this "halal shaban" [religiously pure soap] and obliterated the market leader till that point of time. Consumer research showed that while the "halal" was a hook for people to try the product for the first time, they stuck on because consumer's felt that it was a far superior product than the market leader Lux soap. Then started the real fight. Brand managers at Lux began rebuilding the brand and more importantly the product. Since then the soap market has been highly competitive. It is true both on advertising and product quality side. It can be argued that for its retail price, soaps available in Bangladesh today are probably the best value in the world.

Abraham Lincoln had famously said "you may fool all of the people some of the time; you can even fool some of the people all of the time; but you can’t fool all of the people all of the time". I think at heart honest Abe was an advertising man (politicians being practitioners of the same profession!). What he said is a maxim of advertising today. A consumer will believe you only once when you give an attribute to a product that it does not deliver. I might “allure” you with the promise of long shiny hair or to make you attractive to the opposite sex but if it does not deliver on those promises will you ever buy the product again? As a proof I give you all the miracle diet pills in my medicine cabinet.

Now of course there might be dishonest vendors out there who will abuse the trust a consumer puts in them. But let me promise you this. On the long run their product is not here to stay and they are nothing but con artists. Every industry has these charlatans. But just because a quack prescribes you lizard tail wonder drug does not mean that the whole medical profession is a sham.

So to come back to the central premise of the lawsuit against Grameen Phone, did they say anything that is not true? Well actually no. If you see the ad they are basically saying that to celebrate their 10 years of service they will give away some gifts to users of their product. Now will they do it? Of course! Grameen Phone is no fly by night operator. They are amongst Bangladesh’s most respectable and professional companies. (Confession time: they too are clients though not for this particular campaign). The problem it seems that they have violated Section 295 (b) of the Code of Criminal Procedure. Okay let me spare you the task of calling up your lawyer friends. This section, please bear with me, states: “Offering of prize in connection with trade, etc – Whoever offers, or undertakes to offer, in connection with any trade or business or sale of any commodity, any prize, reward or other similar consideration, by whatever name called, whether in money or kind, against any coupon, ticket, number or figure, or by any other device, as an inducement or encouragement to trade or business or to the buying of any commodity, or for the purpose of advertisement or popularising any commodity, and whoever publishes any such offer, shall be punishable with imprisonment of either description for a term which may extend to six month, or with fine, or with both.”

Well I am not a lawyer (and needed to read the above more times than I care to confess) but the gist of it is quite simple. One cannot offer any gifts that will entice you to purchase a product. Yes, ladies and gentlemen, strictly speaking advertising is illegal. Or atleast giving something for something (e.g. buy a powder and get a soap free); or more of something (20% more shoe polish in each bottle); or even a price discount (Tk 2 off the next purchase of x washing powder) is a strict no-no. Does that make sense? Does the consumer, for who this law was enacted in 1965, benefit?

“The times they are a-changin,” sang iPod’s latest brand ambassador Bob Dylan. Forty years on, this law should no longer remain in the Penal Code. Matter of fact most of us criminal advertisers have devised loopholes to get around this speed breaker. Unfortunately the only ones being disadvantaged are the consumers, as it ultimately limits the benefits that they would get. I mean if Grameen Phone wants to give away an apartment or two, who’s to complain? Well hopefully, the subscribers of the other telcos. And if that means they too give away apartments in Dhaka then at least a handful of subscribes benefit. The marketing companies are not holding a gun to our heads and telling us to buy their product (or in this case talk longer). We are doing it on our own free will. Advertising encourages us to purchase the product from where we will benefit the most. We are basically making a choice with our wallets. I might decide that to use Grameen Phone or I may decide not to. And if I do decide to avail of their services and in the process win myself an apartment I am not complaining. Would you?

In today’s ever-changing fast paced globally synergized advertising campaign world a product cannot afford to stay chained to obsolete and arcane laws. We need to give our marketers the freedom to develop and execute effective consumer promotions. And our consumers the freedom to benefit from these offers. Time has come for the Penal Code to go through a relaunch and drop article 295[b]. As the famous ad commanded, “Just do it!”


Tanvir said...

thanks for this nice post. never knew we had a law like that. So almost all kinds of promotion become illegal. It's ridiculous. Although it seems to be a good one. so people wont be allured to buy commodity or service. But I don't think thats the theme of article Section 295 (b). Probably this section was enacted to prevent bribery. Because it says "Offering of prize" only, and as it also says "in connection with any trade or business or sale of any commodity, any prize, reward or other similar consideration" in another part, we understand that first prize is only prize or money only and nothing else, cos in the second part all the other elements are recognized. If it says anything about banning promotion, then it should include commodity, reward or other similar consideration with prize at the first place. So I think section 295(b) is about prohibition of bribery, not promotion. though they overlap in many ways. I will be shocked if all kinds of promotion advertisement is stopped because of this section.

Nazim Farhan Choudhury said...

This is actually done to stop consumer promotion. I took the liberty of defining it more narrowly to exclude all advertising. The courts have not done so. They only use it to ban "game of chance" (ie lottery). The loophole used by advertisers is to make it a "game of skill" (eg What is Saif Ali's Last Name a)Khan b)Paan c)Gaan)

GrameenPhone could have avoided this mess if it was mindful of building in a skill clause. (eg. subscriber would be sent a question like Who won this year's Noble Peace Prize? a) Khaleda b) Hassina c) Yunus.) While they would have still to do a lottery, they could hide behind the skill alibi.

Incidentally 295 [a] is about banning actual lottery.

afshin said...

Though I agree with you abut obsolesence of that particular section of the act,I would like to point out something else which the respondent has overlooked. Recently Grameen Phone advertised tht you could talk the whole night for Tk. @.50 or Tk..80 only as applied to different offers. But they omitted to tell you that it is cost per minuite and not one time expence. You can never talk for the whole night for Tk.2.50. If it is not misleading the customers then what is?

Sumit said...

Dear Farhan :

As you point out, the clause is obviously to prevent lotteries and not an indictment on all advertising.

Where a nation like Bangladesh has to be careful is , just like a concept like 'halal' soap could give a brand a strong preference, the moment the consumer perceives sales promotions as "lottery", and therefore haram, the entire advertising community could be painted by the 'harami' brush.

Advertising is a powerful tool for economic self-development but practitioners need to be careful not to taint the profession by creating communication that is essentially unethical.

Time Ad Club Dhaka started a 'self-regulatory' body?


Supriyo said...

One must buy into the passion you have put into this argument, Farhan. I can see that's straight from the heart, no 'advertising' there :-)

However, there are certain developments worth mentioning here. Take, for example, the proposed ban on Junk food advertising to Children in UK.

With more to come,,1951993,00.html

This has huge impact on advertising, as you can imagine. Given that this will affect all of the top 20 advertisers in UK, there is going to be a bloodbath somewhere.

On the face of it, it looks like another instance of nanny state intruding public life, and there is a 'pro-choice' uproar everywhere. However, if you look at this, there are so many issues involved - public health [which the state pays for], ethics, the future of television channels etc etc.

Advertising is a victim of its prominence, but the essential debate - the short term nature of business versus the long term imperatives of public interest - will probably never be resolved. I am certain what we see today is only the tip of the iceberg. Businessmen will keep stretching the limits, and regulators will keep erecting the walls.

I will be tempted to believe like competition, this process also has its benefits. Isn't it true that we have more choices [due to entrepreneurship and also advertising], but better choices too [due to competition and public consciousness, and regulatory concerns]?

Supriyo said...

More to what I said on this subject, Farhan, I just noticed a story in the marketing press. I am reproducing it here:

James Dyson in call for ‘truth in advertising’ law

James Dyson, the country's best known inventor, has called for a "truth in advertising law" and has slammed traditional market research for not being able to cope with new product launches in a speech to the Marketing Society annual conference on Tuesday.

Dyson told the conference that unless a law is brought in to guarantee truth in advertising the public would lose confidence in marketers in the same way that they have in politicians and the press.

He added: “We need truth in advertising. Regulators should prevent your clients pressing you to pretend their products have qualities they don't have. Otherwise, we'll all lose in the long term. Public trust will be lost.”

Dyson also denied widespread claims that he is “anti-advertising and anti-ad agencies”. But he did say that too many marketing, PR and advertising campaigns are "misinformed or oversell".

He also hit out against traditional market research, which he believes cannot allow for new products and innovative ideas because it looks at the existing market. He pointed to the launch of the Mini, which in pre-launch market research found that consumers thought it looked "silly". Mini has since sold 5.3 million vehicles.

Dyson also claimed that marketers have too much power and that "we accord more value to spin than to substance". He added that the balance towards marketing needs to be redressed in favour of engineers and inventors.

He warned delegates: “Britain, the nation that started the agrarian and the industrial revolutions, is in danger of slipping behind the competition in the global revolution.”

Nazim Farhan Choudhury said...

Afshin: Advertising must not lie. Or even take liberties with the truth. A great example is that in the US few years back P&G was worried about growth of their Crest brand of toothpaste. They had almost universal toothpaste usership and two time brushing a day was the norm. How will they grow. I read that one bigwig came up with this simple strategy, increase the neck size by a millimeter. Then at every brush more toothpaste would be used and taken over their user base a significant increase in usage will happen. This person got fired. Rightly P&G said that cheating customers would be a sure suicide. In the end the consumers cannot be fooled and will turn against the product.

GP if they mislead you. (I saw the ad and they did mention "per minute") You will not use their service. They can't fool anyone more than a night. And it is not their strategy to.

Nazim Farhan Choudhury said...

Another point that Sumit and Supriyo brought out was "ethics" in advertising.

I focused on the Consumer Promotions angle in this post. But I think I need to get into ethics as well soon.

Advertising agencies have the obligation as brand custodians to ensure that the brand they handle does not fall. If they are dishonest or oversell, in the long run they will not have a brand to be a custodian of.

More than than we are treading on difficult grounds. Yes junk food advertising or for that matter advertising tobacco, alcohol, fire arms, sex, gambling all will give rise to similar issues. My belief is that an ad agency does not have to act as moral police for the nation. If they take on a brand that is legal then they should endevour to promote it to their best ability allowed within the existing law.

On a "self-regulation" or "censor" board. By all means yes. I believe that the AAAB is preparing a framework for such a model that will have government (BTV & Information ministry), Client, and Ad Agency representative to run this.

Arafat said...

Couldn't they have technically argued that they were rewarding users' skills at staying within say the 1001-3001 taka price range and so on?

Syed said...

Coming to talk about ethics in Advertising there have been numerous precedences in bangladesh where the utilization of the emotions of the people have been practiced.
Take the Halal shaban for example. People (even educated people with top notch degrees) were scared of using "Haraam' shabans.....its true a big chunk bought it to avoid social disgrace of not using Haram shabans....
TV companies providing 7-8 years warranty are not sure themselves whether they will survive (or not escape from) in the market to provide that warranty/guarantee........
Anti Dandruff Shampoo ads never warn u that it might clear your hair away while cleansing dandruff from the scalp......
& What about Ad Coms star brand Fair & lovely?!........u can defend the ads saying that this is the reality of Bangladesh.....Girls arent worth staring at if they'r not Fair enough...FORSHA enough......previously they couldn't get married/find boy Friends...the renovated/re-invented image (being built up) is that girls can't even find jobs that they'r good at if they'r not fair the end Fairness defines beauty (the fair>to lovely) and then beauty defines competence (not just for attracting ooglers) but also for getting jobs that require skill (however if ur forsha enough,beautiful enough u'll get the JOB!)...isn't this brand utilizing the the "moila phobia" to its fullest. it is. It's Legal.Its Honest and fair!I'd go far enough to say its practical!
But ehical!? NO WAY!
PS. advertizers still can boast of their prowess and dexterity to convince ppl utilizing their "fears of the dark!", lack of confidence,and chance of getting social acceptibility....Ad Comm can proudly say "we offer u Social Approval"...just like the dentists seal of approval for tooth pastes and even more....
Syed Munazir Hussain