Author By : Ashwathraj.s
Institution: M.S Ramaiah College of Law
Introduction: The Power and Pitfalls of Advertising
One persuading and ubiquitous instrument that has a big influence on customer decision-making is advertising. Influencing opinions and generating demand for goods, services, or concepts are its goals. However, in India, the right to promote has been restricted when the products, especially alcohol and tobacco, pose a risk to the public’s health. Direct advertising of these items was prohibited by the government as early as 1995 through media and health rules. Despite their good intentions, businesses used surrogate ads, or indirect advertising, as a result of this regulatory restriction. These strategies seek to maintain the brand’s recall among customers without breaking any legal requirements. Despite its apparent compliance, surrogate advertising presents ethical marketing and public health issues while also going against the spirit of the law.
What is Surrogate Advertising?
Surrogate advertising is the practice of promoting a different, legal product under the same brand name in order to advertise a legally prohibited product. The term “surrogate” indicates a substitute. The goal is still to keep the brand visible and memorable even if the promoted product is different from the original. The Cable Television Network Regulation Act of 1995, which outlawed the promotion of alcohol, tobacco, and other intoxicants, gave rise to this phenomena in the middle of the 1990s. In response, businesses started offering music CDs, soft drinks, mineral water, and even clothing with the same logos, packaging, and branding designs, guaranteeing that consumers would continue to associate their main prohibited items with them.
Real-Life Examples of Surrogate Ads
Alcohol Industry
The booze industry has developed a high level of surrogate advertising proficiency. For example, Imperial Blue maintains consumer memory by promoting music CDs that resemble the brand visuals of their whiskey. In their ads, Bagpiper cleverly reinforces their primary brand by using soda as a stand-in for their whiskey. Similar to its beer offerings, Kingfisher has extended its brand into calendars, mineral water, and even an airline, Kingfisher Airlines. By supporting sporting events and travel competitions, Royal Challenge and White Mischief maintain their brands’ visibility and connect them to enthusiasm and youth.
Tobacco Industry:
Additionally, tobacco corporations circumvent advertising prohibitions by using inventive surrogates. Wills Lifestyle creates a fashionable yet recognizable brand by selling apparel under the same name and branding as Wills cigarettes. Associating its identity with bravery and patriotism, Red & White launched the “Bravery Awards.” In a similar vein, Four Square advertises adventurous pursuits like rafting while creating a daring, unafraid image that subtly alludes to its smokes.
Cannabis Industry
Businesses that deal with cannabis have also started to enter this market. For instance, GW Pharmaceuticals markets cannabis-derived goods as “medicines.” These items, despite being legal, are advertised in ways that gently resemble the well-known cannabis image, serving as a surrogate to increase brand recognition.
Strategies of Surrogate Advertisement
Surrogate advertising employs a number of tactics to get around legal constraints. One popular strategy is promotion by association, in which businesses connect with their audience on an emotional or aspirational level by using personalities or tales that are centered around values. For example, Shatrughan Sinha has promoted Bagpiper, while Akshay Kumar has been spotted supporting Red and White. The public perception of these brands is influenced by their personalities.
Brand extension, sometimes referred to as promotion by extension, is another popular tactic. In this case, a business expands into other product categories while maintaining the original brand identity.One well-known example of this is Kingfisher, which has kept its identity consistent while branching out into industries including soda, bottled water, and even the aviation industry.Brand tie-ins and event sponsorship are popular strategies. For instance, companies like Royal Stag support well-known cricket teams in the IPL or music programs like Coke Studio. This serves to subtly yet effectively strengthen their brand identification.
TV ads are also quite important, particularly when they advertise products like silver-coated cardamom from companies like Pan Parag or Kamla Pasand. To keep the brand familiar to customers, these advertisements are meticulously crafted to mimic the appearance and texture of their original tobacco goods. Public service announcements that emphasize the risks of alcohol addiction and smoking are also produced by certain businesses. In addition to encouraging social responsibility, these statements quietly maintain the brand’s visibility while frequently meeting regulatory obligations.
National Laws Regulating Surrogate Advertising
India has put in place a thorough legislative framework that forbids the direct and indirect promotion of dangerous goods.
The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 (COTPA) is one of the important pieces of law. In particular, Section 5 of this Act prohibits any kind of tobacco product advertising, including celebrity endorsements and indirect promotion, that could incite tobacco use. Notably, the law makes media outlets and endorsers responsible in addition to marketers.
The Cable Television Network Rules, 1994, are a supplement to COTPA. Advertisements for alcohol, tobacco, and other intoxicants are absolutely forbidden on cable television, per Rule 7(2)(viii). A major flaw in this regulation, though, is that it permits businesses to market other legally acceptable goods under the same brand name as a product that is prohibited. Because of this exception, surrogate advertising has emerged, in which forbidden goods are surreptitiously marketed using brand identification and appearance.
The Advertising Standards Council of India (ASCI), a self-regulatory body registered under the Companies Act, has developed a code of conduct to improve industry responsibility. Any advertisement that promotes restricted products, either directly or indirectly, is prohibited by this code. Section 6 of the ASCI Code, which addresses surrogate advertising in particular, is very significant. To ascertain whether an advertisement is a stand-in for a prohibited product, a thorough examination of its visual content, context, and brand components is necessary. The advertisement is deemed unethical and has to be evaluated or removed if any link to such products is found.
International Frameworks and Global Measures
The Framework Convention on Tobacco Control (FCTC), which was ratified by the World Health Organization in 2003, provides nations with a thorough framework for regulating tobacco advertising, both direct and indirect. All tobacco promotion, including sponsorships, brand placements, and surrogate advertising, is expressly prohibited under Article 13 of the FCTC. Crucially, the FCTC gives countries the authority to impose even more stringent rules, even if their national constitutions or laws only allow certain types of advertising. India, a member of this treaty, has made a number of attempts to align its domestic laws with these international norms. However, because enforcement has been uneven, surrogate ads have continued to exist and change in ways that circumvent current laws.
Alcohol Advertisements on Digital Media
Businesses have found new, unregulated ways to market alcoholic beverages since the emergence of social media. With the help of platforms like Instagram, YouTube, and Facebook, marketers can reach millions of users, especially young people, using a variety of marketing tactics including sponsored content and influencer partnerships. It is challenging to enforce traditional advertising principles in digital advertising due to its casual and fast-paced character.
In 2021, the Advertising Standards Council of India (ASCI) released revised guidelines for digital influencers in response to this difficulty. In order to ensure that audiences are aware of paid promotions, these guidelines mandate that influencers explicitly mark promotional postings with disclaimers such as “Advertisement,” “Ad,” “Sponsorship,” or “Paid Partnership.”
Additionally, firms that want to promote their brand extensions online need to meet certain requirements. These include keeping a minimum fixed investment of ₹10 crores under the promoted brand and functioning in the market for at least two years with an annual turnover of ₹5 crores (or ₹1 crore per state). A monthly turnover of ₹20 lakhs is necessary for younger brands that are less than two years old. Companies must provide independent certification from a chartered accountant to confirm compliance.
Because digital media is dynamic and mostly used by young people, enforcement is still challenging despite these measures. This makes it simpler for companies to mainstream risky activities and covertly market dangerous products under the pretense of lifestyle content.
Steps to Combat Surrogate Advertising
A multifaceted strategy is necessary to effectively counteract surrogate advertising in India. The first step is to change current regulations to remove any ambiguities, especially those that permit brand extensions for things that are prohibited. By closing these gaps, businesses will have less legal room to continue using indirect marketing.
Second, public awareness efforts should be started to inform consumers—particularly teenagers—about the misleading practices used in surrogate advertising and the possible negative effects they may have on their health and society.
Third, stronger enforcement measures are desperately needed. Instead of merely giving warnings or advice, regulatory organizations like the Advertising Standards Council of India (ASCI) ought to have the authority to implement severe measures like fines or ad bans. Fourth, Non-Governmental Organizations (NGOs) such as HRIDAY and SHAN should have more institutional backing. Strengthening these groups can increase grassroots opposition to deceptive advertising since they are essential for policy lobbying and community involvement.
Finally, in order to control social media platforms with the same level of rigor as print and broadcast media, a unified digital marketing policy is required. As enforcement already lags behind, this would assist ensure that surrogate advertising does not continue unchecked in emerging digital formats.
The Legality and Implications of the Citizenship Amendment Act, 2019
Conclusion: Balancing Commerce and Consumer Protection
A major ethical and legal issue in India’s regulatory environment is surrogate advertising. The fundamental goal—to uphold the reputation and appeal of a prohibited product—remains the same even when businesses assert legal compliance by endorsing substitute goods. These kinds of actions are particularly detrimental when directed at young people and vulnerable populations. Even while India has made progress in reducing the promotion of dangerous goods, stricter legislation, improved enforcement, and increased public awareness are still required to completely eradicate surrogate advertising. A healthier, more transparent advertising environment that prioritizes the public interest above private profit will require cooperation from legal organizations, self-regulatory authorities, media outlets, and civil society.
References
Advertising Law and Ethics – S. K. Verma & M. Afzal Wani
Advertising Management – Jaishri Jethwaney and Shruti Jain
Social and Legal Dimensions of Media and Advertising – Anil Kumar Thakur (Ed.)
The Cigarettes and Other Tobacco (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.
The Cable Television Network (Regulation) Act, 1995.
ASCI Code for Self-Regulation in Advertising (2021 Guidelines for Influencers) – Advertising Standards Council of India
Surrogate Advertising in India: Loopholes and Loophole-Fixers – The Hindu Business Line
https://www.thehindubusinessline.com
https://www.legalserviceindia.com/article/l346-Surrogate-Advertisements.html
https://www.feedough.com/what-is-surrogate-advertising-why-is-it-used/
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