To effectively fulfill its mandate of regulating the advertising practice in Nigeria in all aspects and ramifications, the Advertising Practitioners Council of Nigeria (APCON) has transited to the Advertising Regulatory Council of Nigeria ((ARCON) with the enactment of the Advertising Regulatory Council of Nigeria ((ARCON) Act, 2022.
This transition became official when President Muhammadu Buhari signed into law the bill proposing the change recently.
The assented bill, now Act, repeals the Advertising Practitioners (Registration, etc.) Act, Cap. A7, Laws of the Federation of Nigeria, 2004 and enacts the Advertising Regulatory Council of Nigeria Act, 2022 to establish a Council for advertising, advertisements and marketing communications as the apex regulatory authority for the Nigerian advertising industry, as well as make provision for the regulation and control of advertising. It is to ensure the protection of the general public and consumers as well as promote local content and entrench the best international practices.
This was revealed by the director general (formerly registrar) of ARCON, Dr. Olalekan Fadolapo, at a media briefing in Lagos on Monday, August 22, 2022.
Explaining the rationale behind the repealing of the APCON Act and enactment of the ARCON Act, he said: “We all know that between 1988 and date so many things have changed about the way and manner we practice advertising. We have moved from traditional media to new media. Technology has redefined the advertising space.
“Consequently that led to the National Assembly passing the bill and the president of the country signing the bill into law. So today we have a new law we call Advertising Regulatory Council of Nigeria Law.”
Fadolapo pointed out some salient aspects of the new law which covered the remit of the law, powers and functions of the new council, composition of the governing council and statutory panels of the council and a few sundry aspects..
According to the director general, Section 1, Sub Section.2d of the new law states that notwithstanding the provisions in any other Act, the ARCON Act shall have exclusive power to determine, pronounce upon, administer, monitor, and enforce compliance by persons and organizations on matters relating to advertisements, advertising, and marketing communication in Nigeria, whether of a general or specific nature.
“What this is trying to say is that we have the remit to control advertising in the country. This gives us omnibus power over the advertising space across the industry, across the market,” he said.
The new law, according to him, applies to any individual, organization, body corporate or agency of the Federal Government, State, or Local Government which engages in, regulates, sponsors or takes benefit of advertising services, advertisements, and marketing communications services; and any person who sponsors or takes benefit of an advertising, advertisement, or marketing communications services within the provisions of the Act.
“In our former law, it states that practicing advertising for profit and some people would come to us saying that they do it for passion and because they do it for passion, they do not contravene the law. This law has given us a bigger space and also makes us know that government agencies that are into advertisements either directly or indirectly but taking benefit are also within the scope of the regulation of the council. So our mandate covers advertisement, advertising and marketing communications.”
He revealed that the law went a step further to define what is advertisement, advertising, marketing communications. It also defined the people that are critical to the advertising ecosystem, that is, advertisers, advertisement agencies and media, so they now have a clear cut of the catchment of the law in terms of its remit, he said.
“According to the law, Advertisement means a notice, announcement, exposure, publication, broadcast, statement, announcorial, informercial, commercial, hype, display, town cry, show, event, logo, payoff, or trademark to promote, advocate, solicit, showcase, endorse, vote or support a product, service, cause, idea, person or organization with the intention to influence, sway, actuate, impress, arouse, patronize, entice or attract a person, people or organization by an identified sponsor irrespective of media, medium or platform.
“Advertising means any act, action, activity, construct, or undertaking directly, or indirectly, intentionally, or unintentionally, aimed at creating, planning, strategizing, managing, developing, producing, propagating, servicing, or facilitating an advertisement, brand, or marketing communications ideas.
“Marketing Communications means any act, gesture, endeavor, execution, performance tactics, or effort aimed at sharing promotional information, evoking emotion, creating awareness, or encouraging demand for a product, service, cause, idea, person, or organization through the use of public media, mass media, or any medium capable of disseminating information to the public directly, or indirectly, intentionally, or unintentionally.
“Advertiser means a person, private or public organisation that causes, requests, directs, or pays for an advertisement, advertising or marketing communications ideas to be created, developed, produced, executed, expose or that takes benefit of advertisement, advertising, and marketing communication services.
“Advertisement agency means any agent, agency, or organization that engages in full advertising service, creative advertising, media buying, media planning, media brokerage, experiential marketing, activation, out-of-home advertising, brand consulting, brand management, digital advertising, or any other advertising, marketing communications service.
“Media means any medium, channel, or platform that disseminates, circulate, expose, broadcast, publish, display or make public an advertisement;
On the new governing council, the ARCON boss said the governing council shall consist of a chairman, who shall be a distinguished Fellow of the profession to be appointed by the president of Nigeria; the director-general of the council who shall be the vice-chairman; and the head of legal unit of the council who shall always act as the secretary of the governing council.
The governing council shall also have one representative not below the rank of a director from the supervisory ministry and one representative each from National Universities Commission (NUC), and National Board for Technical Education (NBTE).
“There shall also be five representatives of the Association of Advertising Agencies of Nigeria (AAAN); and one representative each from Broadcasting Organisation of Nigeria (BON), Newspapers Proprietors’ Association of Nigeria (NPAN), Outdoor Advertisement Association of Nigeria (OAAN), Advertisers Association of Nigeria (ADVAN), Media Independent Practitioners Association of Nigeria (MIPAN),and Experiential Marketers Association of Nigeria (EXMAN)
He also picked some salient functions of ARCON that are contained in the Act such as regulation, administration and control of advertising, regulating and controlling of creative ratings including awards as well as formulating and implementing regulations and guidelines.
Fadolapo said ARCON has the responsibility of preserving local content and establishing and maintaining separate registers for individual and body corporate entitled to practice in any form of advertising, advertisement and marketing communications including creative agencies, among other things.
On the powers of ARCON, the director general stated that ARCON has the power, as stated in the Act, to authorize, formulate, establish and issue code, proclamations, standards of practice, guidelines, and other regulations on advertising, advertisement, and marketing communications in Nigeria; license and revoke license issued to all categories of advertisement agencies under this Act; as well as monitor and enforce sanctions on any person or organization that sponsors, exposes, or causes to be exposed in Nigeria, any advertising, advertisement, and marketing communications materials without prior approval of the Advertising Standards Panel
ARCON is also empowered “to investigate and compel public and private organisations to produce advertising and marketing communications-related information; have access to books including financial records of organizations licensed by the Council; and compel public and private organisations to use only bodies corporate licensed under this Act for advertising and marketing communications services in Nigeria; as well as compel public and private organisations to disclose all advertising service providers engaged by them.
ARCON also has the power to investigate and prosecute individual, body corporate or organization, directors and shareholders licenced under the Act in the interest of the public. It also has the power to sanction and prosecute any person or organization that violates or infringes any provision of this Act, code of advertising, proclamations, and any other enactment relating to advertising, advertisement, and marketing communications.”
On who can practice, he pointed out that a person not being registered in accordance with the ARCON Act, shall not be entitled to hold any appointment in the public service of the Federation or of a State or in any public or private establishment, body, or institution if the holding of a such appointment involves the performance by him in Nigeria of any act pertaining to the profession for gain.
“An individual or organization, not being registered in any register established under this Act who has failed, refused or neglected to comply with the conditions and requirements for advertising, advertisement, and marketing communications as stipulated under this Act, or who uses any name, title, description or symbol calculated to lead any person to infer that he is engaged in advertising, advertisement or marketing communications commits an offence and is liable on conviction, he further explained.
The new law also creates five statutory committees for the council. These are the Advertising Practitioners Disciplinary Committee (APDC), Advertising Practitioners Investigating Panel (APIP), Advertising Arbitration Panel (AAP), Advertising Standards Panel (ASP), and Advertising Offences Tribunal (AOT).
The ARCON boss explained that while the APDC, APIP and ASP had existed in the past, the AAP and Advertising Offences Tribunal are new and the Tribunal has the legal status of a High Court and shall have and exercise jurisdiction and powers in respect of criminal cases and offences created under the Act while those who are not satisfied with its judgment can go to the Appeal Court.
He further said that the statutory functions, rights, interests, obligations, liabilities and properties held by APCON, existing before the commencement of the ARCON Act under any contract, instrument, in law or inequity, shall by virtue of the ARCON Act be deemed to have been assigned to and vested in ARCON established under the Act to the extent that they are not inconsistent with any of the provisions of this Act.
The ARCON director general promised that in order for all to be up-to-date and key into the operations of the council, the council would soon start engaging with all the major stakeholders in the different sectors of the industry to intimate them and seek ways for effective and efficient collaborations for the development of the advertising ecosystem in the country.
With this development, it now becomes imperative for stakeholders in the advertising ecosystem to be fully aware of the potential legal ramifications of their advertising marketing communications practice and initiatives, especially with regard to regulated products.
