INTRODUCTION
Surrogate advertising is the practice of promoting a product through advertisements that seem to be for different goods. This method is used to advertise products that are banned or restricted from advertising under government regulations, such as club soda or mineral water in the case of alcohol. The intention behind surrogate advertising is that people will automatically connect the surrogate product with the main product. This practice is controversial because it circumvents public health regulations designed to protect consumers.
In India, many companies use surrogate advertising to promote their products, including Imperial Blue, Kingfisher, and Officer’s Choice playing cards. This practice has been banned by the Central Consumer Protection Authority Guidelines since 2022. Here are some notable examples:
LAWS THAT PROHIBIT SURROGATE ADVERTISING IN INDIA
India has stringent regulations regarding the advertisement of products like alcohol and tobacco. Key regulations include:
- Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 : The guidelines have been issued by the Central consumer protection authority for the prevention of misleading advertisement or false advertisement. The Guidelines define “surrogate advertising” in clause 2(h) as an “An advertisement for goods, products, or services that are prohibited or restricted by law, which circumvents such prohibition or restriction by portraying it as an advertisement for other goods, products, or services that are not prohibited or restricted by law.” Clause 6 of the Guideline:
- Surrogate advertising is prohibited if it circumvents laws restricting the advertising of certain goods or services. It should not portray itself as an advertisement for other goods or services to avoid these restrictions.
- An advertisement is considered surrogate or indirect if:
- It directly or indirectly suggests that it is promoting goods or services whose direct advertising is restricted.
- It uses brand names, logos, colours, layouts, or presentations associated with the restricted goods or services.
However, simply using a brand or company name that might also apply to restricted goods or services is not considered surrogate advertising if the advertisement itself is not objectionable under the guidelines.
PENALTIES: The CCPA (Consumer Protection Act) can impose a penalty of up to INR 10 lakhs on a person found guilty of violating the guidelines. For repeated violations, the penalty can be increased to up to INR 50 lakhs. Additionally, the CCPA can prohibit an endorser of a misleading advertisement from making any endorsements for up to 1 year. In the case of repeated violations, the prohibition period can be extended up to 3 years.
- The Cigarettes and Other Tobacco Products( Prohibition of Advertisement and regulation of trade and commerce , production, supply and distribution) Act, 2003 (COTPA, 2003): Section 5 of the Act prohibits all forms of direct and indirect advertisements of tobacco products. Rule 2 (e) of COTPA Rules provides that “ indirect advertisement” mentioned in section 5(1) of the Act means—
(i) Using a name or brand of tobacco products to promote or advertise other goods, services, and events.
(ii) Marketing tobacco products using a brand name or trademark that is known for or used as a name or brand for other goods and services.
(iii) Using specific colours, layout, and/or presentation associated with particular tobacco products.
(iv) Depicting tobacco products and smoking in advertisements for other goods and services.
- The Cable Television Networks (Regulation) Act, 1995: The following regulations were put in place to prohibit the promotion, whether direct or indirect, of products that are harmful or banned. According to Rule 7(1) of the Cable Television Networks Rules, 1994 (the “CTN” Rules), advertising on cable services should comply with the country’s laws and should not offend the morality, decency, or religious beliefs of the subscribers. Additionally, Rule 7(viii) of the Rules states that the advertisement of cigarettes, tobacco products, wine, alcohol, liquor, or other intoxicants is strictly prohibited.
- Advertising Standards Council of India: It was established in 1985 as a non-profit company under Section 25 of the Company Act. This organisation is a voluntary self-regulatory organisation that regulates the advertising industry in India. The ASCI Code is appended in the Cable Television Networks Rules, 1994, Programme and Advertising Codes, prescribed under the Cable Television Network Rules, 1994. Clause 3.5 of Chapter III of the Code provides that, “Advertisements shall not propagate products or services, the use of which is banned under the law”.
- WHO Framework Convention on Tobacco Control (WHO FCTC): India ratified the Convention on February 5, 2004, and the Convention came into force on February 27, 2005. The WHO FCTC emphasises the importance of strategies to reduce both the demand and supply of tobacco and provides a framework for implementing tobacco control measures at national, regional, and international levels. Article 13 of the convention is titled “Ban tobacco advertising, promotion, and sponsorship.”
DEBATE
India has taken ample measures to restrict surrogate advertisements, but it has always failed. We need proper laws that prohibit surrogate advertisements and brand extension. Clause 6 of the Central Consumer Protection Authority Guidelines, 2022, prohibits both direct and indirect advertisements. However, it fails to mention brand extension, which has been used by many advertisers to promote a different product by using a brand name that is otherwise banned from advertising, such as in the case of alcohol and tobacco.
The clause states, “Provided that using a brand name or company name that is also used for goods, products, or services whose advertising is restricted or prohibited will not be considered a surrogate or indirect advertisement if the advertisement is not otherwise objectionable as per the provisions provided in the guidelines.” With this loophole in the government notification, if a brand sells cigarettes, it can use the same brand name to advertise an airline or clothing range without meeting any criteria.
Cigarette and alcohol companies are advertising their products, and consumers are also relating these advertisements to the main product. These companies are sponsoring and contributing to organizing events such as fashion shows, music, award shows, etc., through which they are trying to gain social acceptance. Their only objective is to compensate for the losses arising from the ban on their main products. Producers feel that the government allows them to do business and imposes huge taxes but does not allow them to advertise their products.
The ban on surrogate advertisements has also impacted media companies, leading to a significant loss in revenue from these banned advertisements. According to broadcasters, the government should implement a reasonable policy that creates a balance between the social and monetary aspects of businesses involved in tobacco and liquor.
CONCLUSION
According to the inferences drawn from several surveys and interviews, 42 out of 50 people can understand the actual liquor or tobacco product being advertised. Legislation is performing only a half-hearted job in controlling this menace. Imposing a fine or sending a notice to these companies will not change their market position. If the government really wants to address this issue, it should either completely ban these products and remove them from the market or implement provisions that make it practically impossible for companies to use indirect methods to promote their brand names and undermine the legislation.
References:
- https://www.ascionline.in/wp-content/uploads/2024/04/Code-Book_Codes_Webready.pdf
- https://www.ascionline.in/
- https://www.who.int/europe/teams/tobacco/who-framework-convention-on-tobacco-control-(who-fctc)
- https://manupatra.com/roundup/330/articles/barcelona.pdf
- https://pubmed.ncbi.nlm.nih.gov/19256752/
- https://www.exchange4media.com/advertising-news/misleading-surrogate-ads-grey-areas-in-govt-guidelines-120803.html
