Introduction

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.

Conclusion

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)

Email: [email protected]

www.spaajibade.com