The Legality of Surrogate Advertisements in India

INTRODUCTION

Advertising as a mode of marketing has a strong influence in our lives. Advertisement refers to any announcement or notice in public domain in order to promote any service, product or event. It is a method through which companies encourage the audience to buy their products or services.

Anything which draws the attention of the public towards these things can be referred to as advertisement. The decision to buy these products are more or less dependent on these advertisements by the companies. Sometimes, these commercials create such an impact that the consumer buys the products or services though there was no necessity of either, at the first place.

There is a need to regularise these commercials in order to prevent any negative implications in the society. This is the reason Indian Government has always laid down curbs or at least restricted the ads of unhealthy products such as liquor and tobacco through appropriate legislations and directives.[1]

India has been quite strict regarding the advertisements on the sale of liquor and tobacco. There has been a blanket ban on commercials selling liquor or tobacco products since 1995. This ban was enforced by the Indian Ministry of Health after a thorough research which found out that how liquor and cigarettes have adverse effect on a man’s health.

The combination of various mental and physical hazards which these products have on man’s body led to the government laying down an injunction on advertisements of such products on any media platform.

The advent of such ban can be traced back to 1975, when under the Cigarette Advertising Act[2], the government of India ordered the tobacco companies to display health warnings on the cigarette packets. The ministry continued to push for stronger regulations and stringent restrictions, until a complete ban in 1995. The Cigarettes and other Tobacco Products Act, 2003, and The Cable Television Network Regulation Act[3], 1995, put on complete censorship on any kind of advertisement whether print or electronic of tobacco or liquor products.

This led to an urge in the companies to seek certain alternate remedial measures, which eventually lead to the birth of surrogate advertisements. The objective of such ads is to make up for the loss incurred by the ban and still have their brand’s recall value in the minds of the viewers. Through such advertisements, the companies can state that the orders of the government are being implemented, but in reality, it is not so. These kinds of commercials, in fact, defeat the purpose of the Government through these laws. It’s like a weapon for Proxy War.[4]

MEANING: SURROGATE ADVERTISEMENT

Surrogate refers to ‘substitute’. Surrogate advertisements are just that. It can be referred to as an Ad which duplicates the brand image of one product with the intention to promote some other product of the same brand. Now the product advertised may or may not resemble the actual product, but it is promoted under the same brand name. This sought of substituted brand promotion is usually done when the original product is banned from being advertised on the mass media.[5]

Surrogate advertisement saw its advent in India in the mid-90s, when Cable Television Network Act, 1995 read with Cable Television Rules, 1994 put in a complete ban on the liquor, tobacco and cigarette endorsements. Prohibiting such commercials was the government’s step to curb the menace of such products on the viewer’s mind as well as their health.

But surrogate Ads defeats the intention of the government. Launching of different products under the same brand name is also known as brand extension and is pretty much a common phenomenon, but the problem arises when such extension is done in response to the categories of products which are banned.[6]

Some examples of these would be commercials of soda, packaged water or completely unrelated products such as music CDs by liquor companies under their brand name.

EXAMPLES: SURROGATE ADVERTISEMENTS

Surrogate Advertisements in Liquor Industry

Today, the liquor industry has blurred the lines between products by endorsing everything from soda bottles to fruit juices and cocktail mixers just to stay in the limelight. A major example of this would be Imperial Blues advertisement series promoting a whiskey brand under the veil of music CDs. Bagpiper soda, cassettes and CDs, kingfisher mineral water, royal challenge golf accessories, Teacher’s achievement awards, White mischief holidays are some examples amongst many others.[7]

Surrogate Advertisements in Tobacco Industry

The brands of tobacco industry are targeting the audience by selling tobacco-based products in the name of pan masala and substitutes of hookah. The list of celebrities participating in such Ads is numerous. Different products are endorsed by these public figures which have the same packaging as the banned product, so as to create a state of confusion amongst the viewers. This indirectly promotes the tobacco product of the brand because what influences the audience at first is the packaging. Wills lifestyle, Red and White bravery awards, four-square white-water rafting are some examples.[8]

Surrogate Advertisement in Cannabis Industry

The cannabis advertisement industry stream is accelerating. Most cannabis brands are selling off their products by labelling them as medicine. Brands like GW pharmaceuticals and ArcView fall under this category.[9]

STRATEGIES OF SURROGATE ADVERTISEMENT

With governments ban on direct advertisement, brands indulge in several other forms to gain rapid publicity. These are discussed below.

Promotion by Association

This kind of advertisement focuses on the value proposition of the brand and intends to create an impression of a certain kind in the mind of the viewers. This is done to generate relativity. For instance, selling the product by stating that it is for brave people, or it makes you look cool or maybe it makes you royal. Generally, such endorsements are done by celebrities because they help portray the values which the brand is seeking to sell.

For example, Shatrugan Sinha featuring in bagpiper soda or Akshay Kumar endorsing Red and White cigarette brand.[10]

Promotion by Extension

Brand extension is relatively a new form of advertisement. It formally refers to the expansion of the company into a venture which they previously did not sell. Promoting a new product with familiar brand name.[11]

For example, Kingfisher has sold everything from water to soda, calendar to even an airline company of the same name.

Promotion through Events and Sponsorship

With government now getting stringent on surrogate advertisements, the brands are turning towards event organisation, event sponsorships and corporate films. In this, the company places its logo somewhere around the peri free of the event which in return creates a buzz around the brand in the minds of the visitors.[12]

For example, Royal stag sponsored the coke studio performances and even owned an IPL team.

Promotion through TV Commercials

Tv commercials are the most common form of brand promotion with a mass audience viewership. The mentioned products were advertised highly in tv ads and movies, but since the governments abstaining these, they are taking a different route. Now, these brands promote their product under the veil of another product which is outside their realm, but still enough to create brand’s recall value.[13]

For example, Kamla Pasand, Pan Parag, Rajnigandha etc are promoting silver coated cardamom under the same brand name and similar packaging under which they sell tobacco products.

Promotion through Public Service Announcements (PSA)

Liquor, tobacco and cigarette companies which have been typically banned from advertising on media or print, have started to promote in disguise of public service announcement. Lately, this has been a very prevalent formula of advertising. The brands bring awareness regarding the ill effects of smoking, tobacco on the body, the legal age to drink alcohol or not to drink and drive.[14]

For example, public awareness warnings by cigarette companies on the cigarette packets that smoking causes cancer.

NATIONAL REGULATIONS

Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (“COTPA”)

Section 5 of the Act, prohibits not only persons who are engaged either in the production, supply, or distribution of cigarettes from advertising but also prohibit people from media having control over the system to allow such advertisements. It also corresponds a ban on people not to participate in such advertisements which either directly or indirectly promotes the use of cigarette or any tobacco products.[15]

Programme and Advertising Codes prescribed under the Cable Television Network Rules, 1994

Rule 7(2)(viii) of the rules lays down the code of advertising for brands selling tobacco, cigarettes, liquor, wine, alcohol, or any other intoxicants. Though it puts a complete ban on advertising any afore mentioned product, but still leaves a window open. It states that a brand can advertise under some conditions, any other product which it produces under the same brand name or logo. This window has led to cause the advent of surrogate advertisements in India.[16]

The Advertising Standards Council of India (“ASCI”)

ASCI is a self-regulatory and voluntary council, which is registered under the Companies Act. It aims to keep a check over companies to avoid advertising products which are hazardous or unacceptable to the society. Section 6 of the rules of the ASCI code states that the advertisement of products which are prohibited by the government should not go ultra vires the law by purporting to be products which are not restricted or prohibited by the law. to judge what advertisements shall come under such radar, shall be scrutinised in the following ways.

It shall check upon the visual content of the Ad and make sure that it does not promote products which are restricted either directly or indirectly by making any references or nuances to those particular products. This section specifically prohibits surrogate advertisements by laying down criteria to judge whether or not the commercial is indirectly promoting the banned products.[17]

INTERNATIONAL REGULATIONS

Framework Convention on Tobacco Control (FCTC).

World Health Organization’s FCTC is the world’s first international Treaty.  It has been adopted by 181 countries until now. It was adopted on 21^st of May, 2003 by the World Health Assembly and came into force on 27^th of February, 2005. It has been enacted by nations who are keen to make strict anti-tobacco rules. Article 13 of the Treaty talks about tobacco advertising, promotion and sponsorships. This article asserts the idea that a comprehensive ban is necessary. It gives out the freedom to the parties to formulate regulations to ban tobacco, even if the constitution does not permit the same. The countries can resort to ways like prohibiting advertisements which create a negative impact on the viewers, restrict any sought of direct or indirect incentives which encourages tobacco use, restrict advertisement in media and any kind of event sponsorships and organisations by tobacco companies.[18][19]

ALCOHOL ADVERTISEMENTS IN DIGITAL MEDIA

The advent of social media has taken the world by storm. These sites not only make it easier for you to connect with other people and have a fun virtual life, but it is also becoming a space for alcohol companies to promote their brand. It is becoming more and more affable for such brands for marketing most likely due to negligible rules regarding social media marketing.[20]

The brands are getting attracted towards promoting their alcohol on social media platforms such as Instagram as it garners them a great viewer engagement rate. With Ad placements in stories, feeds, posts a number of varied approaches of alcohol advertisements on social media have cropped up. One of them which is gaining huge popularity is alcohol influencer marketing.[21]

ASCI meticulously have given out their guidelines regarding influencer advertising in digital media. The guidelines define terms such as influencer, virtual influencer, material connection and digital media. The preamble talks about the recent blow up of digital platforms for advertisements.

It focuses on to define the blurry lines between brand promotions for influencing the opinion of the viewers or for changing their behaviour for monetary gains. It seeks to safeguard the consumers from such commercials which are either misleading or abuse the trust of the consumers and exploit them because of their lack of awareness and knowledge.[22]

It asserts about the rule of “disclosure” by the influencers about their brand collaborations and endorsements on these digital platforms. All post about such brand collaborations should have a label of Advertisement/Ad/Sponsership/Partnership/Collaboration/Employee/Free Gift. It mandates that the disclosure should be upfront and prominent.[23]

It also elaborates upon the ground rules to be followed while endorsing any product which is restricted or prohibited by law from advertisement. The guidelines state that the brand extension product or services should be registered with the appropriate government authority. For brands which are present in the market for more than 2 years should have a turnover of 5 crore per year or 1 crore per annum per state where such distribution has been established.

They also should produce a valid certificate from an independent institution and CA firm to prove the above stated criteria. For the brand who have been in the market for less than 2 years should achieve a turnover of 20 lakhs per month from launch. It should demonstrate a fixed asset investment under the name of advertised brand of not less than 10 crores.

The brand also requires to submit evidence of turnover greater than 10 percent of the turnover of the same brand in the restricted category. All of the above requirements should be certified by an independent and reputed CA firm.[24]

Great influence is followed by great responsibility. While many big brands are coming up to take advantage of the social media market and partnering up with influencers on Instagram is an easy path for latter to earn money. But these ads have a huge impact on the users of such sites which are mostly young people in their adolescence and teens. Users of such site are in an impressionable age and should be influenced carefully. High exposure to alcohol advertisement on media platform can risk the lives of such individuals causing them alcohol related disorders.[25]

STEPS TO COMBAT SURROGATE ADVERTISEMENT

1. Amending the existing laws and making them unambiguous by clearly banning product advertisement of brand extension products.
2. Conducting programmes for consumer awareness and organising surveys to acquire knowledge about the negative impact of such endorsements.
3. Providing a system for effective implementations of national laws and international treaties.
4. Investing more powers in ASCI to take stronger actions against advertisements which are false or misleading, rather than just issuing notice.
5. Several NGOs such as HRIDAY (Health related information dissemination amongst youth), SHAN (Student Health Action Network) etc have led campaigns appealing the Government of India for a comprehensive ban on tobacco advertising. The role of NGOs in combating the menace of surrogate advertising should be recognized and they should be given more authority to work on such issues.[26]

[1] Available at, https://www.legalserviceindia.com/article/l346-Surrogate-Advertisements.html. (Last accessed on 30^th November, 2021).

[2] The Cigarettes and Other Tobacco (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.

[3] The Cable Television Network (Regulation) Act, 1995.

[4] Supra Note 1.

[5] Available at, https://www.mondaq.com/india/advertising-marketing-branding/606974/surrogate-advertisements-in-india. (Last accessed on 3^rd December, 2021).

[6] Ibid.

[7] Available at, https://www.feedough.com/what-is-surrogate-advertising-why-is-it-used/. (Last accessed on 6^th December, 2021).

[8] Ibid.

[9] Ibid.

[10] Supra Note 7.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15]Available at,  https://odishapolice.gov.in/sites/default/files/PDF/COTPA.pdf. (Last accessed on 16^th December, 2021).

[16]Available at,  https://mib.gov.in/sites/default/files/pac1.pdf. (Last accessed on 16^th December, 2021).

[17] Available at, https://ascionline.in/. (Last accessed on 16^th December, 2021).

[18] Supra Note 1.

[19] Available at, https://www.nhm.gov.in/index1.php?lang=1&level=3&sublinkid=1126&lid=636. (Last accessed on 20^th December, 2021.)

[20] https://vertavahealthohio.com/blog/social-media-alcohol-advertising/. (Last accessed on 22^nd December, 2021).

[21] Ibid.

[22] https://ascionline.in/images/pdf/guidelines-for-influencer-advertising-in-digital-media-final.pdf. (Last accessed on 22^nd December, 2021).

[23] Ibid.

[24]Available4 at, ( https://ascionline.in/images/pdf/final%2018.03.2021-%20guidelines%20for%20qualification%20of%20brand%20extension%20rev.pdf.) Last accessed on 23^rd December, 2021.)

[25] Supra Note 15.

[26] Supra Note 5.