SURROGATE ADVERTISEMENT: DEFINITION
Surrogate advertisement is a promotional strategy to advertise products whose advertisements are banned like cigarettes and alcohol in guise of other related or unrelated products with same brand name. The usual strategy is to use a product that would not predate a proprietor’s originally intended product rather it is either an unrelated product or a product that compliments their original product. For example, alcohol companies use club sodas, mineral water and even music CDs with the same brand name of their alcoholic beverage; tobacco companies market their products by the way of ‘pan masala’ and mouth freshening cardamom.
UTILITY OF SURROGATE ADVERTISEMENTS
The biggest utility of this practice to which the companies are interested is that it helps them create brand awareness of their products and increase their market shares. In fact, the products that are advertised in the stead of the banned products are treated as “brand extensions”. For example, Seagram’s Music CD is a “brand extension” to Seagram’s Whiskey and Smirnoff Fruit Juice is a “brand extension” of Smirnoff Vodka. Secondly, the alcohol and the tobacco industry are some of the biggest revenue machines of government owing to high tax that is levied on these substances and surrogate advertisements helps the industries to increase their sales despite direct advertisements being not allowed.
LEGAL BOUNDARIES TO SURROGATE ADVERTISEMENTS
There is no direct statute that regulates the advertising industry. The industry is self-controlled by a non-statutory body the Advertising Standard Council of India (ASCI). The ASCI Code and Cable Television Networks (Regulation) Act, 1995 (the “CTNA”) provide for prohibition of advertising of goods whose advertising is prohibited by the law and also of the goods whose advertising is allowed but are indicative towards the prohibition.
Rule 7(2)(viii) of the Cable Television Network Rules, 1994 provides for prohibition of direct or indirect advertisement of “cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants” i.e., it clearly provides for prohibition for surrogate advertising. But, the proviso to this rule provides for surrogate advertisements in following situations:
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
This clearly leaves out way for the companies to promote their goods by the way of so called “brand extensions” and accordingly, such ads are regularly being run on every platform.
Surrogate advertisements are allowed in the country vide Information & Broadcast Ministry’s directive dated 17.06.2021 that it cannot violate Rule 7(2)(viii)(a) of the Cable Television Network Rules, 1994. Whenever the call to ban such advertisements is made, the companies often argue that such blanket prohibition shall not just lead to a loss of market share but shall also give unfair competitive advantage to the non-alcoholic beverage industry.
Following is an illustration of how surrogate promotions are being done in the country right now:i
Kesar Pan Masala
Red and White Cigarette
Bravery Award Ceremony
Water and Soda
Water, Soda, Music Cassettes and CDs
Mineral Water, Calendars
Cassettes and CDs
Tobacco and alcohol addiction is a big problem in India that is further aggravates due to rampant poverty. Addicts dig deeper and deeper in their financial health to procure the substance. It is not just important to rehabilitate who already suffer but to avoid turning new population into a generation of addicts. In order to achieve so, it is very important that strict advertisement guidelines in form of properly drafted act are made in order to prevent newer population getting enticed with cleverly produced advertisements that in the name of “brand expansion” solicit their products as something that determine social class. Secondly, the lawmakers should ensure that the said industries do not exploit a huge loophole like the proviso present in Rule 7(2)(viii).