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Needed! A Grand Industry Reception For The New ARCON Act

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Since the announcement of the new ARCON Act, varied reactions across quarters have greeted the development. In this opinion piece, Nonso Ofili, an industry observer, takes a look at this Act, it’s implication for the industry among other related issues

Mixed reactions have continued to trail the signing into law of the now famous Advertising Regulatory Council of Nigeria (ARCON) Act by the Muhammadu Buhari led-administration. While there are jubilations in some quarters, barely concealed dissatisfaction bordering on disguised trepidation has been exhibited in some quarters…albeit behind the cloak of anonymity.

Finding expression on some media platforms, they have referred to the signing of the new Act as “raping advertisers” and “recoiling’ growth.” Strongly tying the new ARCON to the Advertising Industry Standard of Practice (AISOP) introduced by the ARCON in October 2021. They question its legitimacy while calling it legal attrition. They are also vocal about how it may lead to restrictions on business, stifle and contract industry growth and kill competition among others.

Recall, a similar reaction had trailed the release of details of the advertising practice which ARCON had insisted is a business framework that seeks to improve mutual respect, eradicate unfair advantage, unethical competition, and un-equitable policies among relevant stakeholders in the advertising and marketing communications industry in Nigeria.

But beyond these concerns, news of the new ARCON Act has been met with deafening silence in some other quarters. While the general reason for this may be presumed to be the ‘Siddon-look-and-see-how-it-goes’ approach adopted by many stakeholders, it may not be wrong to assume that the import of the development is lost on some others.

Are these fears justified? The answer may be more complicated than it appears. But first, a brief highlight on what the act is will suffice. Essentially the Act repeals the Advertising Practitioners Council of Nigeria (Registration, etc.) Act, Cap. A7, Laws of the Federation of Nigeria, 2004 and enacts the Advertising Regulatory Council of Nigeria (ARCON) Act, 2022.

This means that ARCON is now explicitly recognised as the apex authority for the Nigerian advertising industry, in all its entirety, it also means that the regulatory body has been given more teeth, more power to bark and bite. By the new law, it is now ARCON’s statutory responsibility to make provisions for the regulation and control of advertising in all its ramifications.

The change of name of the regulatory agency from the Advertising Practitioners Council of Nigeria to the Advertising Regulatory Council of Nigeria gives it a bigger regulatory framework to act within as it is not just regulating practitioners but regulating both the practice and the business of advertising, covering advertising and marketing communication agencies and activities of advertisers both within and outside the government as well as both the public sector and the private sector. This is even more so as they are now required by law to use only ARCON licensed agencies for advertising.

The new Act also creates room for the Advertising Offences Tribunal. This is indeed a big one for the advertising industry. we now have a court dedicated to our business and practice. Indeed, the impact of this on compliance says a lot about the new dawn of regulation the ARCON Act has brought.

With all the apparently inherent gains of the new Act as seen above, the reaction in some questions to it begs the question: “who is scared of ARCON?” A marketing expert with one of the foremost FMCG companies in this market who will remain anonymous for the sake of this article says it is understandable that some advertisers will feel the new act places them at the mercy of ARCON.

But considering that ARCON is a government regulatory agency saddled with the responsibility to regulate advertising, that fear may be ill-placed as this is nothing outside the norm as there are agencies that regulate activities in other sectors. For instance, the Medical and Dental Council of Nigeria (MDCN) regulates medical practice, COREN regulates engineering in Nigeria, and The CBN regulates banking and monetary matters among others.

Outside this clime, in the United States, for instance, the government has the National Advertising Review Council (NARC) supported by other numerous agencies whose mandates include regulating advertising and other marketing activities. These include the Federal Trade Commission, the Federal Communications Commission, the Food and Drug Administration, the Securities and Exchange Commission, the Environmental Protection Agency, and the Department of Agriculture. These are no different from our regular NAFDAC, FCCP, NSE among others.

To discourage the need for the government to pass additional legislation that would restrict its activities, advertising agencies over there vigorously police themselves to minimize abuses. This group is a strategic alliance among four major trade organizations: the AAAA (American Association of Advertising Agencies), the ANA (Association of National Advertisers), the AAF (American Advertising Federation), and the Council of Better Business Bureaus Inc. Again, this is no different from what our own AAAN, MIPAN, EXMAN, and OAAAN do.

Dr. Olalekan Fadolapo, Registrar/Chief Executive, Advertising Regulatory Council of Nigeria (ARCON)

With these comparisons, it is obvious that the advertising space has made progress that has been long overdue. Indeed, if ARCON will continue to play the unbiased umpire, all critical stakeholders must see it as that and not as a weapon to be brandished and willed according to the whims and caprices of those with the regulatory handle at any time.

There is need for everyone to understand that the government being the moderator must moderate the industry to promote ethical practices. So, if you see anybody complain of the act, let all stakeholders educate such players on the essence of the law and make them see that government is not going to budge. 

Justifying its action, the presidency through the Minister of Information and Culture, Alhaji Lai Mohammed had explained that the signing of ARCON into law by President Muhammadu Buhari was informed by the resolve to strengthen the nation’s integrated marketing communications space.

Feelers from the industry show that many people were not even aware that such a bill was before the national assembly for many years spanning the entirety of the eleven years of former APCON Registrar, Alhaji Garba Kankarofi and Mrs. Ijedi Iyoha who was acting Registrar for a period of about two years.

But coming on board and working as Registrar and now Director General in less than two years, Dr. Olalekan Fadolapo will be a delightful example for Robert Greene. In his controversial 1998 non-fiction best-seller, 48 Laws of Power, Greene, an American author laid down some ground rules with historical backings, observations, and transgressions to guide people in the game of power play. Among the laws that stand out in Greene’s book is the 28th Law, “Enter Action with Boldness.” The lessons of this law are boundless. Following the many strides, reforms, initiatives, and proactive measures Fadolapo has put in place, Greene could have used him as a practical example of this law, had he not written the book decades ago.

Entering action with boldness on this bill, he jumped on it, seeing it scale the first reading, public hearing, second hearing, third reading from House of Representatives to Senate, and finally the signing into law by the Presidency.

Though signed into law, the gazette on this bill is eagerly been awaited by the industry, especially as it is set to change the dynamics of doing business in the industry. But while we wait, what will this new act portend for the industry? Lai Mohammed Mohammed said that it is the belief of the Federal Government that if properly carried out, the reforms would enable the regulatory body sanitise the advertising regulatory environment, encourage inclusive growth, attract investments to the sector, and enhance the operating environment for practitioners. 

No doubt, from snippets and hints of what the new act portends, there is no doubt that the advertising industry is headed for a new course, changing the direction of its sail as it ploughs through the uncertain waters of the Nigerian economy. But, can the captain of the ship sail alone without alignment with critical stakeholders? The answer is a no.

There is urgent need therefore for the captain here, ARCON to liaise with all critical stakeholders, keep the door for dialogue open, and continuously engage with everyone. This is of utmost importance. The industry is a growing one and cannot afford to subject itself to distracting litigations or degenerate to a level where issues that can be settled on a round table would linger in the courts for decades.

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