INTERVIEW

Lekan Fadolapo

 

The Director General, Advertising Regulatory Council of Nigeria (ARCON),  Dr. Lekan Fadolapo, in this interview granted Marketing Edge TV, recently, broke his silence on the two court judgments from Federal High Courts in Lagos and Lokoja, expressing his concerns on the grave implications of the LagosCourt judgement for the nation’s marketing communication ecosystem, if allowed to stand. Brands Track monitored the interview and brings you excerpts:

 

 

 

Q: Since the two  judgments,  one from Lagos, and the other from Lokoja, contesting the power of your agency, the  Advertising Regulatory Council of Nigeria (ARCON) to regulate out- of- home advertising in the country,  were pronounced, the industry has been waiting for the agency’s reaction. Perhaps you would like to use the opportunity of this interview to air your views, regarding the two conflicting judgements?

 

The two organizations, one in Lagos, and the other in Lokoja took ARCON to court for pre-exposure submission of materials, and approval before exposure in out- of- home. The Lagos judgment was delivered on November 7, this year, by the  Federal High Court in the state, while the one for Lokoja was on November 12, by the  Federal High Court in Lokoja. They  are contesting the power of ARCON to regulate advertisement on outdoor media. Now the judgment in Lagos stated that the powers to regulate outdoor advertising and hoarding, as stated in the first schedule of the constitution, is omnibus, and because of that the outdoor advertising regulation,  is vested in local  government. So that part of ARCON law that regulates outdoor advertising was declared in conflict with the constitution. However, the Lokoja judgment took cognizance of  the second schedule of the constitution, under the exclusive list. Though I’m not a lawyer, but I know that the second schedule of the constitution, which lists out things that are exclusive to the federal government, stated that professional practices are exclusively left for the federal government to be legislated upon. Secondly,   trade and commerce are also on the exclusive list in the second schedule. That same second schedule says  everything, incidental to this, is also exclusive for federal government. In 1989, advertising became a profession, with the decree of 1989. So the judgment in Lokoja established the fact that advertising is trade and commerce, and that it is also practice. So it is within the exclusive list, which the federal government, through the National Assembly can legislate on. The judgment in Lokoja also noted that even in the constitution, there are overlapping functions. Now, whereas the first schedule says outdoor and hoarding, the second schedule speaks to the practice, trade and commerce. So the two can co-exist. In practice, advertising is regulated along two lines, the message and the medium.  And, from time immemorial, there has never been any conflict in the regulation along these two lines.

Our mandate is very clear, to regulate advertising as a profession and advertisement as an act of trade.   The judgment in Lagos, gives a different meaning to outdoor advertising, and by implication, it’s not only advertisement that  is going to come under regulation.  And again, it will bring it in conflict with the second schedule, which put it in the exclusive list as trade, commerce, profession. So there is a lot that is in it, and this is  what the judgment in Lokoja spelt out. So it’s not   in conflict, it is an overlapping function. The two of them had coexisted before now, and they will continue to coexist.

Interestingly, the judgments came five days to each other. So, the principle of judicial precedence is where two coordinating jurisdiction courts pronounced judgments with diverse opinions, the later judgment will come into force. The later judgment is the one from Lokoja.

 

Q: But what is ARCON doing about the Lagos judgment?

 

ARCON has appealed the case, and also filed for stay of execution to ensure there is no instability in the industry.

 

Q: But what are the implications of such judgment for the advertising industry?

 

It’s  capable of throwing the industry into major crisis, and destabilising the flow that the industry currently enjoys.  Imagine having to go to 774 local governments  to get   approval for a material which is a national campaign. You want to do an out of home campaign in Lagos, you can imagine how many local governments you will have to visit, besides  LCDAs.  We believe this  is going to cause a major disruption and distortion to the flow.

 

Q: Interestingly some sectoral groups have been  responding, hailing the Lagos judgment?

 

 

I only know of two. The first one is ADVAN. If you ask me, I will say ADVAN needs prayers. Let me put it like this: I’ve spent close to three decades in this industry. I was in this industry when everyone would sit down and make proposal for the growth of the industry. But since the current president, Osamede, took over, the mantle at ADVAN, he has been acting like an undertaker. And, if something is not done urgently, ADVAN will continue to have a free fall.  ADVAN is supposed to be the association for advertisers in Nigeria. It  is expected to protect and promote stability in the advertiser leg of this industry. But  one of the implications of the Lagos judgment is that if one person as an advertiser is to do a national campaign, that advertiser would have to submit their material to 774 local governments.  You can imagine one Marketing Director, going to 774 LGs, excluding the ones that have LCDAs. If ADVAN leadership is sincere, a situation like this calls for calm. It calls for them to reach out to the regulator, saying: “This is the judgment. It’s going to impact the business of our members negatively, and cause a major disruption. We don’t want this. What do we do?” Interestingly, the person that even got the judgment is not the one in the media. It’s ADVAN that is issuing press releases, jumping from one media to the other. Do  you think a Marketing Director, who knows the headache the judgment will cause him, will celebrate this judgment? Unfortunately, what the present leadership of ADVAN  is seeing is  ARCON and Lekan Fadolapo, and not the bigger picture.