ASCI guidelines for advertising and promotion of virtual digital assets and services

31 May 2022

A lack of structural framework for regulation of virtual digital assets, such as NFTs, cryptocurrencies, etc. (hereinafter referred to as VDA), and the advertisement of such, in India, has resulted in ambiguous and opaque advertisements. India’s prime minister, in November 2021, chaired a meeting raising concerns about ‘overpromising’ and ‘nontransparent’ advertisements capable of misleading the youth. This was followed by an assessment on cryptocurrencies by a deputy governor of the Reserve Bank of India, in February 2022, with a message urging Indians to try to understand cryptocurrencies beyond the hype created by advertisements, noting that they are poorly named, as unlike fiat currencies they “do not have an issuer, they are not an instrument of debt, nor commodities, nor do they have any intrinsic value.” India, he argued at the time, is better off not allowing the use of cryptocurrencies at all.

By the end of February 2022, the Advertising Standards Council of India (ASCI), a self-regulatory body, released guidelines to regulate advertisements of VDAs and their services with an intention to “safeguard consumer interest, and to ensure that ads do not mislead or exploit consumers’ lack of expertise on these products.” These guidelines came in force on April 1, 2022.

Disclosure label

To ensure full disclosure on the risks associated with VDAs and their services, ASCI has made it mandatory for all print, audio, video, and social media advertisements to carry the following disclaimer: “Crypto products and NFTs are unregulated and can be highly risky. There may be no regulatory recourse for any loss from such transactions.”

Further, in addition to the existing guidelines of ASCI on disclaimers, advertisers must adhere to the standards enumerated under the present guidelines. The disclaimer should be prominent and visible to an average consumer and must be:

Equal to at least 1/5th of the advertising space, against a plain background, to the maximum font size afforded by the space. (print/static ad)
Placed at the end of the advertisement, for minimum five seconds, against a plain background with a voiceover in a normal speaking pace. For an ad over two minutes, disclaimer to be featured in the beginning of the ad, too. (video ad)
Spoken at the end of the advertisement, accompanied with a voiceover in normal speaking pace. For an ad over 90 seconds, disclaimer to be featured in the beginning of the ad, too. (audio ad)
Placed in the beginning of the caption and should also form part of the post. (social media posts)
Voiced at the end of the story, as mentioned in points (1) or (2) above. For an ad less than 15 seconds, in a prominent manner as an overlay. (social media stories)
Limited characters ad must contain a shortened disclaimer – “Crypto products and NFTs are unregulated and risky” – with a link to the full disclaimer.

Dos and Don’ts

Advertisers can neither compare VDAs with regulated products nor can they use words such as currency, securities, custodian or depositories, which gives an impression of regulated products to consumers.
Claims and profitability information shall contain clear, accurate, sufficient and updated information and should be constant with the product information/warnings provided to customers by VDA platforms.
Asset performance information shall not be disclosed in a biased manner, while the returns are only to be mentioned for a period of one year and above.
Name, contact number and email of the advertiser must be disclosed in all ads.
Minors or someone who appears to be one cannot be featured in ads, either talking about or dealing with VDAs.
Ads cannot show that VDA products or VDA trading are a solution to money, personality or other problems.
Ads cannot make claims related to guaranteed future increase in profits or statements that may undermine the risks associated with VDAs and its services.
Celebrities and influencers are bound by the ASCI code and ASCI influencer guidelines, which require the celebrities/influencers to conduct due diligence before making any statements or claims in the ad.

Conclusion

The security and monetary exchange boards of Canada, Spain and Singapore had earlier introduced guidelines regulating advertisements of VDAs, and now, the Advertising Standards Council of India has introduced self-regulating guidelines governing the advertisements of VDAs and its services. This not only reflects the potential VDAs have in shifting the paradigm of global economy and affecting the financial stability but also the role advertisements play in influencing the investment habits of consumers.

These regulations mirror the concerns raised by the RBI and will, for the time being, standardize and regulate ads related to VDAs and their services by eliminating misleading and opaque claims. The advertisers may self-regulate the content of ads as per these guidelines, until the time a more robust and binding framework is introduced by the Securities and Exchange Board of India.

About the author

Mr Ashutosh Upadhyaya

Ashutosh Upadhyaya (he/him/his) is a Senior Associate at Anand and Anand with over 6 years of experience in Intellectual Property Right Laws, with a focus on Customs Enforcement of IP rights, and IP Commercial Litigation. His practice areas also include advisory and consultation in the fields of Luxury Laws, Advertisement/Entertainment Laws, Legal Metrology Laws, Packaging and Food Safety Laws. He writes regularly for leading publications and has authored/co-authored several articles.

Pravin Anand

The first Indian to receive the AIPPI Award of Merit, INTA’s President’s Award, the first from India to be inducted in the IAM IP Hall of Fame 2022, recognized as the “Most Innovative Lawyer” for Asia Pacific by Financial Times, recipient of the ‘Global IP Legend of the Year’ award at the Legal Era 2023 IP Awards, honoured as the ‘IP Lawyer of the Decade’ and decorated with the ‘Lifetime Achievement Award’ for 2012-13, Pravin Anand’s reputation precedes him.

Pravin brings with him a seminal body of work – having appeared in over 3,000 cases and having successfully resolved many hundreds with landmark orders in over 43 years of his practice as an IP lawyer.

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He has broken new grounds in Indian IP jurisprudence with India’s first anti-anti-suit injunction (InterDigital v. Xiaomi); India's first pro-tem security order in favour of Nokia; the Nokia-Lenovo multi-technology multi-year agreement; a software patent law suit conferring protection (the Ferid Allani case); development of damages culture in large number of cases that recognized not only punitive, but compensatory, exemplary and aggravated damages (Philips v. AmazeStore); India’s first post-trial SEP judgment (Philips v. Bhagirathi); development of unique remedies such as the “Tree Planting Order” (Merck case); and an order benefitting adolescent girls (Hermes case).

The prestigious Financial Times ranks the firm highly for its dexterity and digital preparedness. As for Pravin Anand, who received the FT Asia-Pacific Innovative Lawyers 2015 Award, it says: “Over his 36 years career, Pravin Anand has arguably done more than any other individual to advance intellectual property infrastructure in India.”