India: Surrogate Advertisements In India

Last Updated: 30 June 2017
Article by Sharbani Raut

Most Read Contributor in India, July 2017

In the words of advertising tycoon Leo Burnett, "Let's gear our advertising to sell goods but let's recognize also that advertising has a broad social responsibility."

SURROGATE ADVERTISEMENTS: DEFINITION

Merriam Webster defines a Surrogate as a 'substitute'. And surrogate advertisements are just that. A surrogate advertisement can be defined as an advertisement that duplicates the brand image of one product to promote another product of the same brand. The surrogate or substitute could either resemble the original product or could be a different product altogether but it is marketed under the established brand name of the original product. Surrogate advertisements are used to promote and advertise products of brands when the original product cannot be advertised on mass media. Some instances of surrogate advertisements are: Bagpiper Soda, Cassettes and CDs, Royal Challenge Golf Accessories and Mineral Water, Imperial Blue Cassettes and CDs etc.

FUNCTION OF SURROGATE ADVERTISEMENTS.

Ever since advertising of tobacco and liquor products have been banned on Mass Media, these companies have resorted to surrogate advertising tactics to keep their brands alive in the minds of consumers. The most important function of a surrogate advertisement is that of brand-recall. A surrogate advertisement advertises other market commodities without alluding to tobacco or liquor but under the same brand.

Surrogate advertising came into India in the mid-1990s after the Cable Television Networks (Regulation) Act, 1995 read with Cable television Rules, 1994, came into force, which banned direct liquor, tobacco and cigarette advertisements.1 Before that the Cigarettes (Regulation of Production, Supply and Distribution) Act,1975 made it mandatory to display a statutory health warning on all packages and advertisements. Advertisements have a strong influence in the minds of consumers especially in this era of new age technology. Banning direct advertisements about liquor and tobacco was a step ahead by the Government to curb the influence of such advertisements on the public and effectively diminish the ill effects of these products in general. Therefore Surrogate Advertisements by these liquor and tobacco companies defeat the very purpose of this ban.

Launching new products with a common brand name is known as brand extensions and is not per se illegal or objectionable in nature. The problem arises when a brand extension is carried out in response to a ban on advertisement of one product category.

SURROGATE ADVERTISEMENTS IN INDIA:

In India, Surrogate Advertisements are done mainly in the tobacco and liquor industry. This is a direct consequence of the ban on direct advertisements of tobacco and liquor. Therefore to promote and advertise their products to the masses, Liquor and tobacco found a way around the ban through surrogate ads. The banned product (alcohol or cigarettes) is not projected directly to consumers but rather masked under another product under the same brand name so that whenever there is a mention of that brand, people start associating it with its main product.

Brands like Kingfisher, Wills actually bank upon such ads to draw attention to their other products. For instance, Kingfisher has promoted everything from bottled water, to soda to calendar under the umbrella of the brand name 'Kingfisher'. Former Union Health Minister Mr. Anbumani Ramadoss had challenged the name of the Bangalore Indian Premier League (IPL) cricket team, "Royal Challengers", which was an out and out blatant surrogate advertisement for the liquor brand "Royal Challenge". But the Supreme Court of India has since pointed out that the team was not named 'Royal Challenge', the liquor brand BUT "Royal Challengers". 'Only those who drink can be attracted by these things,' the bench observed in a lighter vein, alluding to the fact that a name would not have any effect on non-drinkers.2

NATIONAL AND INTERNATIONAL 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 the advertisement of "Tobacco products" by both direct and indirect means. Sub-clause (i),(iii) and (iv) of Rule 2 of COPTA Rules, clearly sets out that the use of a name or brand of Tobacco products for marketing, promoting or advertising other products would constitute a form of "indirect advertisement". Accordingly, surrogate advertising carried out by tobacco companies would constitute a form of indirect advertisement and would consequently be prohibited under Section 5.

THE CABLE TELEVISION NETWORKS (REGULATION) ACT,1995

Rule 7(2)(viii) of the Cable Television Rules clearly prohibits the direct or indirect promotion and advertisement of "cigarettes, tobacco products ,wine ,alcohol, liquor or other intoxicants"; However the proviso to this rule also runs as:

"Provided that a product that uses a brand name or logo, which is also used for cigarettes, tobacco products, wine, alcohol, liquor, or other intoxicants, may be advertised on cable services subject to the following conditions that-

  • the story board or visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner;
  • the advertisement must not make any direct or indirect reference to prohibited products;
  • the advertisement must not contain any nuances or phrases promoting prohibited products;
  • the advertisement must not use particular colors and layout or presentations associated with prohibited products;
  • the advertisement must not use situations typical for promotion of prohibited products when advertising the other products"

The rules therefore provide a clear leeway for such surrogate advertisements under the cover of brand-extensions

THE ADVERTISING STANDARDS COUNCIL OF INDIA("ASCI")

ASCI is a voluntary self-regulation council, registered as a non-profit company under the Companies Act. It is formed to safeguard against the indiscriminate use of advertising for the promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large.

Section 6 of the ASCI code states :

'Advertisements for products whose advertising is prohibited or restricted by law or by this code must not circumvent such restrictions by purporting to be advertisements for other products the advertising of which is not prohibited or restricted by law or by this code. In judging whether or not any particular advertisement is an indirect advertisement for product whose advertising is restricted or prohibited, due attention shall be given to the following:

  • Visual content of the advertisement must depict only the product being advertised and not the prohibited or restricted product in any form or manner.
  • The advertisement must not make any direct or indirect reference to the prohibited or restricted products.
  • The advertisement must not create any nuances or phrases promoting prohibited products.'

This section specifically prohibits surrogate advertising along with laying down the criteria for deciding whether an advertisement is an indirect advertisement.

FRAMEWORK CONVENTION ON TOBACCO CONTROL(FCTC)

India ratified the convention on 5th February,2004 and the Convention came into force on 27th Feb,2005. The convention seeks to protect present and future generations from devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures.

Article 13 of the Convention is titled as Tobacco advertising, promotion and sponsorship. This article recognizes the fact that a comprehensive ban is necessary and imperative. The framework gives the parties the freedom to introduce a comprehensive legislation banning all tobacco advertising, promotion and sponsorship.

PRESENT SCENARIO

On February 25, 2008 the Government issued a notification banning surrogate advertising of liquor companies in print, electronic and outdoor media.3 However, subsequently on February 27, 2009, I&B Ministry issued a notification amending the said Rule to allow advertisements of products which shared a brand name or logo with any tobacco or liquor product with several caveats viz: (i) the story board or visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner etc.

In 2014, social activist Teena Sharma filed a PIL in the Delhi High Court seeking a ban on surrogate advertisements. She argued that the Cable Television Network rules 1994 must require that all advertisements found to be genuine extensions by the Ministry of Information and Broadcasting must be previewed and certified by the CBFC. For unknown reasons, this PIL was later withdrawn.

It is very clear from the aforementioned existing laws and regulations that any direct or indirect advertising of the prohibited products is not permitted in India.

While the Government notification dated February 27, 2009 allows advertisements of products which shares a brand name or logo with any tobacco or liquor product, it at the same time also states that no reference direct or indirect could be made to the prohibited products in any form. Further, I&B Ministry has also made it very clear vide its Directive dated June 17, 2010 that the Government notification dated February 27, 2009 cannot be cited as an excuse to telecast advertisements of products in violation of Rule 7(2)(viii)(a) of CTNR.4

STEPS THAT CAN BE TAKEN TO COMBAT SURROGATE ADVERTISING:

  1. Making clear and unambiguous transparent laws banning surrogate advertisements for different products under a single brand name.
  2. Conducting consumer awareness programmers to help people understand the negative impact of surrogate advertisements.
  3. Providing more power to the Advertising standards Council of India to enable it to take action against false and misleading advertisements and keep a close vigil over clever evasion of the law, instead of just issuing notices.
  4. Establishing a mechanism for effective implementation of international and national regulations.
  5. Several NGOs such as HRIDAY(Health related information dissemination amongst youth), SHAN (Student Health Action Network) etc led campaigns appealing the Government 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.

Footnotes

1 Rule 7(2)(viii) of the Cable Television Rules,1994

2 https://sports.ndtv.com/cricket/now-ramadoss-challengesbangalore-ipl-team-over-name-1605911

3 http://economictimes.indiatimes.com/industry/services/advertising/govt-issues-notification-banning-surrogateliquor-ads/articleshow/2878618.cms

4 https://naiknaik.com/surrogate-advertising-in-indiapermissible-or-not/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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