The Advertising Regulatory Council of Nigeria Act, 2022 (ARCON) abolishes the Advertising Practitioners Council of Nigeria Act (APCON) [i], and through the regulatory body[ii] established by the act announced a ban on the use of foreign voice-over artists and models in advertisements with effect from 1^st October 2022. The legislation makes provisions for the regulation and control of advertisement, ensures the protection of the general public and consumers, promotes local content, and entrenches best international practices.

This piece seeks to offer an overview of the novel legislation highlighting the significant chapters, sections, and provisions while stating the innovations in the new ARCON Act.

Some of the Notable Innovations of the ARCON Act Include:

• Promotion of local content by banning the use of foreign voice-over artists and models in advertisements.[iii]
• All advertisements must be approved by the council before they are published. This provides justification for ARCON suing META for publishing unauthorized advertisements on its platforms.
• The establishment of an Advertising Arbitration Panel to settle disputes among its stakeholders in relation to any provisions or operation of the ARCON Act, Code of Advertising Practice, Standard of Practice, Proclamation, or any other Subsidiary Legislation made under the act.[iv]
• The Council is also responsible for regulating advertisements published online.

Highlights of the ARCON Act

Part I of the act provides for the establishment of the Advertising Regulatory Council of Nigeria and the establishment of the act.

Part II provides for the establishment of the governing council, tenure of members of the governing council, cessation of membership, meetings of the governing council, and allowances of members of the governing council.

Part III provides for the functions of the council, powers of the council, and power to bestow honorary fellowship.

Part IV provides for the staff of the council.

Part V provides for legal proceedings detailing the conditions for instituting an action against the council. Section 14 provides,

“No suit shall be commenced against the council before the expiration of 30 days after written notice of the intention to commence the suit shall have been served upon the council by the intending plaintiff or claimant, his agent or legal representative…”

The section also provides for indemnity against liabilities incurred by a member of the council or its Director-General or any employee of the council[v]

Part VI provides for financial provisions. Notably, this part provides for the annual report of the council, which the council shall prepare and submit to the minister, not later than 30 June in each year, a report that shall include a copy of the audited accounts of the council for that year and the auditor’s report.

Part VII provides for the registration of persons and organizations engaging in advertising, advertisement, and marketing communications.

This part exposes a mandatory registration with the council of every person who wishes to engage in the business of marketing communication and advertising in the Nigerian advertising market.[vi]

It is trite to know that knowledge and skills are prerequisites needed to operate in the Nigerian advertising and marketing communications market.[vii] Also, the council, via its mandatory guidelines, is charged to make detailed provisions for licensing of different categories of advertising, organizations engaged in related activities, and firms engaged in the marketing business in the Nigerian market.[viii] The council is also charged to issue a Certificate of Registration or license upon registration to any person or organization indicating the relevant category they can operate.[ix]

Foreign and national agencies are eligible to apply for licenses to operate advertising marketing upon compliance with the requirement set out in the Nigerian Code of Advertising and other mandatory guidelines.[x] The level of foreign participation in the marketing agency will determine the proposed form to carry on business directed at the Nigerian market for foreign or national agencies.[xi]

The interest of the public shall be the paramount consideration in granting a license to a body corporate, that is, a company registered with the appropriate authorities, such as Corporate Affairs Commission. The council shall provide adequate rules for that purpose.[xii] The grant of this advertising, and marketing license is not absolute as it can be revoked by the council upon the exercising of a fair hearing given to the affected parties, where the organization is:[xiii]

1. Insolvent
2. Wound up
3. Operating in a manner detrimental to the public interest

The act also provides for a mandatory register to be prepared and maintained by the Director-General of the council. The register is expected to contain names, addresses, and approved qualifications, of every person entitled to be registered as a fellow, full member, associate, or student of the profession who applied in the manner required by law. This is a provision to cater to private and individual persons[xiv]

The student member of the profession is entitled to registration, certificate of registration upon satisfaction of undergoing a course recognized by the council leading to a qualification.[xv] For an associate member, such must

1. hold a university degree or higher national diploma in advertising, marketing, graphic art, mass communication, and other professional qualifications recognized by the council, and be employed in a recognized organization where he/she can acquire professional experience
2. possess good character
3. not to have been convicted in Nigeria or elsewhere on grounds of fraud or dishonesty
4. attained the age of 21.[xvi]

For registration of a full member, the requirements as that of an associate member apply and must satisfy the council that in the five (5) years preceding the date of application, he has been active continuously as an advertising or marketing communications practitioner either alone or in a partnership.[xvii] There is the grace of membership for persons without formal education to be full members upon having been certified of practicing advertising or marketing for a period of at least seven (7) years, being of good character, non-conviction anywhere on grounds of fraud or dishonesty and attained the age of twenty-one (21).[xviii]

For registration of a fellow, the requirements of associate members apply, however, the year of experience must not be less than fifteen (15) years immediately preceding the date of application, and to the satisfaction of the council, must have contributed significantly to the advertising and marketing communications professionals.[xix] 

Part VIII provides for regulatory standards and the environment. This part entails the standard set by the council for all tiers of government involved in advertising control with the motive to regulate multiple taxes, regulation, reduction in the cost of advertising, protection of investment in advertising, and maintenance of aesthetics of the advertising environment. Safety and encouragement of sustainable advertising.[xx]   Compliance with the standard of regulation is mandatory to evade sanctions.

Part IX provides for training, approval of requisite courses by the council, supervision of the institution, and examination leading to qualification[xxi].

Part X provides for the privileges of registered persons and offenses by unregistered persons. A person not registered duly shall not be entitled to hold any appointment in the public service or private establishment if such appointment involves the performance of any act pertaining to the profession of advertising for gain.[xxii] Certain sanctions are statutorily noted for offenders such as unregistered members, and impersonators engaged in advertising or marketing, such will be liable upon conviction on the first offense to a fine not more than #500,000 for an individual or imprisonment for a term of six (6) months or both, in the case of an organization, a fine of at least #1,000,000.[xxiii] This sanction also applies to anyone who, for the purpose of procuring registration, provides false information.[xxiv] On subsequent offenses, for an individual, a fine not more than #1,000,000 with or without an imprisonment term of 12 months, while for an organization, a fine of at least #5,000,000.[xxv]

Part XI provides for the establishment of an advertising offenses tribunal. The tribunal exercises jurisdiction over offenses created under the Act, Code of Advertising Practice, Standard of Practice, Proclamation, and other relevant laws.[xxvi]

Part XII provides for the disciplinary committee and investigative panel of the council saddled with the responsibility and determination of any case referred to it by the investigating panel. Disputes may be referred to a panel set up by the council for arbitration as an alternative to full-scale litigation.[xxvii]

Summarily, this piece of legislation has come to practical fruition, and it is in the interest of users, and beneficiaries if full, strict, and keen adherence to the provisions is complied with.

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[i] Cap. A7, LFN, 2004

[ii] Advertising Regulatory Council of Nigeria (ARCON)

[iii] Section 2 of ARCON Act; Objectives of the Act

[iv] Section 52 of the ARCON Act

[v] Ss. 14(2), (3)

[vi] Section 21(1)

[vii] Section 21(2)

[viii] Section 21(2)(a)

[ix] Section 21(2)(b)

[x] Section 21(4)

[xi] Section 21(3)

[xii] Section 21(5)

[xiii] Section 21(6)

[xiv] Section 22

[xv] Section 25(1)

[xvi] Section 25(2)

[xvii] Section 25(3)(a)(b)

[xviii] ibid

[xix] Section 25(4)(a)(b)

[xx] Section 26

[xxi] Section 28

[xxii] Section 31

[xxiii] Section 32(1)(a)(i)(ii)

[xxiv] Section 34

[xxv] Section 32(1)(b)(i)(ii)

[xxvi] Section 37(2)

[xxvii] Section 52

Written by Kikiire Makinde for The Trusted Advisors

Email us: info@trustedadvisorslaw.com

Telephone Number: +234 810 159 9159