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The Travesty of ARCON Regulation

by Kikelomo Oyenuga
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The journey of the most turbulent and divisive times in the Nigerian Marketing Communications Industry started in 2021 with the launch of the Advertising Industry Standard of Practice (AISOP) by the Advertising Practitioners Council of Nigeria (APCON), now The Advertising Regulatory Council of Nigeria (ARCON). APCON had disclosed that AISOP will provide minimum standard in terms of commercial activities of agencies, advertisers, media houses, advertising services providers and stakeholders, in matters relating to the business of advertising and related areas of marketing communications in Nigeria. However, what APCON claimed to be an Industry Standard of Practice was actually a document on payment and engagement terms, which sought to unconstitutionally regulate contractual relations between private entities (Advertisers and their agencies). ADVAN being a body founded to provide an organised forum for advertisers to express their views and influence developmental changes in Nigerian marketing communications scene, had expressed its concerns about AISOP, particularly its unconstitutional attempt to infringe on the rights of private entities to determine their contractual terms.

It is worthy to note that while the Leadership of APCON has claimed that it invited all critical stakeholders to deliberate on the AISOP, the truth is that the ADVAN has clearly stated on several occasions, both in private with the Registrar of APCON Dr Lekan Fadolapo, and in many public fora, that not a single contribution presented by ADVAN was included in the AISOP.

In 2022, a new APCON law was publicized which changed the name of APCON to the Advertising Regulatory Council of Nigeria (ARCON). The new law has several provisions that are clearly unconstitutional, and has caused great concern for the industry. A major item that has stood out for stakeholders is that ARCON is now allowed set up a tribunal that would hold ‘trials’ for any persons or organization that contravened the provisions of the ARCON law. This is an extremely concerning development, because Nigeria as a democratic entity has clear separation of powers between the different arms of government. A regulatory body for advertising cannot set up a tribunal with powers to hear, try, deliver judgment and sentence, as such is clearly a violation of the constitution of the nation. ARCON cannot constitutionally act as both the prosecutor and the judge in relation to matters which they have by themselves, labelled as advertising offences. The tribunal constituted by ARCON is merely an appendage of ARCON and is propagating the agenda of ARCON.

In January 2024, ARCON issued notices to law abiding organizations in Nigeria on various unclear charges of infractions, with fines up to N1 million per infraction. It is critical to note that these organizations include multinationals, Indigenous conglomerates and various levels of businesses, that serve as the back bone of the Nigerian economy. ARCON has now issued notices to the CEOs of these organizations to face the ARCON ‘Tribunal’ on various claims of infractions.

The Advertisers Association of Nigeria (ADVAN) vehemently opposes the harassment of her members (which are corporate entities that utilize advertising and marketing to promote their goods and services). These invitations to CEOs of reputable Nigerian brands, to stand ‘trial’ is a huge embarrassment and humiliation of law-abiding corporate entities, and has caused a total loss of trust for ARCON as an institution. The harassment and threats of criminal trials to CEOs of both local and multi-nationals is antithetical to the reforms being proposed by the Federal Government through the Presidential Enabling Business Environment Council on Ease of Doing Business (PEBEC), and the need to remove all forms of bottlenecks in driving the Nigerian economy.

ADVAN members hereby speak unequivocally against this travesty called ARCON Regulation, as a continuance of this line of action will sabotage all forms of viable activities in the industry. Regulation should be instrumental to an enabling environment where stakeholders can count on fair, clearly articulated guidelines for business activities, and ADVAN members are very supportive of all fair regulations, which enable equitable business activities.

Some critical questions to ARCON include:
What are the clearly articulated guidelines for digital advertising, in view of the fact that digital advertising cannot be regulated as traditional advertising?

What constitutes online advertising? is it paid communication, is it all and any posts on corporate social media pages and websites? Do all these fall under the same category and payment structures?

Can a post on a company’s website or social media page that is not paid for, be seen as advertisement?
What has been the engagement process to stakeholders on ARCONs regulation of online advertising?

Regulation cannot be ambiguous or selective in its applications, it should be clearly defined with stakeholders continuously engaged in a quest for seamless implementation.

Nigeria is currently bowed under one of the most turbulent economic conditions. The position of regulatory institutions at these dire times should be one of research and benchmarking for relevant policies, and consistent stakeholder engagement towards viable economic solutions and growth.

It is time for ARCON to pull the reins on its regime of arbitrary policy initiatives, that is pushing a once buoyant and collaborative industry into chaos, and embark on critical stakeholder dialogue and engagement to foster renewed hope and support for the industry.

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