Critical Analysis Of Surrogate Advertisements And Their Ethical Implications
Author: LawSphereX
Category: General Law
Published:
Updated:
CRITICAL
ANALYSIS
OF SURROGATE ADVERTISEMENTS AND THEIR ETHICAL IMPLICATIONS Palak Maheshwari [B.A. LL.B. (NLU Nagpur), LL.M. (ITM University, Gwalior)] Devvrat Shivhare (Ph.D. Scholar, Faculty of Law, DU)
ABSTRACT
This critical analysis explores the phenomenon of surrogate advertising- a marketing strategy where companies promote products that are banned from direct advertisement, such as alcohol or tobacco, under the guise of promoting alternate products like soda, music CDs, or events. The paper examines how surrogate advertising circumvents legal frameworks while maintaining brand visibility, thereby manipulating consumer perception. It delves into the ethical implications of this practice, including its potential to mislead audiences, especially vulnerable groups like minors, and its impact on public health. Through case studies and regulatory reviews, the analysis highlights the tension between corporate interests and social responsibility.
The study concludes by evaluating the effectiveness of existing regulatory mechanisms and calls for more stringent oversight and ethical accountability in advertising practices.
INTRODUCTION
“The greatest thing to be achieved in advertising, in my opinion, is believability, and nothing is more believable than the product itself. ”1 Advertising can be defined as a mode of communication that aims to persuade an audience, comprising viewers, readers, or listeners, to engage in a purchase or make a decision pertaining to an idea, service, or product. The content of advertisement encompasses the identification of a certain product or service and its potential benefits for the consumer. The purpose of advertisement is to persuade a certain consumer segment to make a purchase or engage with a particular brand. An advertisement refers to a communication disseminated to the general public or a specific segment of the population, aiming to influence the attitudes or behaviours of its recipients.
Advertising exerts a substantial influence on individuals’ perceptions of life and self-identity within the context of an expanding economy such as India, specifically with regards to their values, preferences, and actions. Advertising is regarded as the foundation of our socioeconomic system. Both conventional and online advertising have seen significant growth in India. Hidden advertisements include portraying cigarette smoking sequences and other tobacco products in films, university sponsorship, good-will gifts to community events. The term “Surrogate Advertising” literally means to extensively mimic the brand image of one product to advertise another product under the same brand. Surrogate advertising is when one company’s logo or identity is used to promote another’s product or service.
Surrogate advertising serves an important function of brand recalling and is not always an exercise in raising sales. Surrogate advertising is a new ethical concern in advertising in India as this strategy is employed to promote commodities such as alcohol and tobacco, which are ordinarily illegal within our jurisdiction. The practise involves the substantial replication of the brand image of a certain product in order to promote a different product within the same brand. Upon seeing these advertisements, customers instantly associate them with prohibited products. As a result, these goods are indirectly promoted, which impacts consumer’s behaviour. 1 Leo Burnett, American Association of Advertising Agencies, Central Region Annual Meeting. October 13, 1955.
The surrogate product has the potential to exhibit similarities with the original product, or it may manifest as an entirely separate product while using the established brand of the original product. Surrogate advertising also includes the sponsorship of sporting, cultural and recreational events and activities utilising a liquor brand name. 2 Surrogate advertising is mostly used in the alcohol and tobacco industries in India. This is due to the fact that advertising for these products has been expressly prohibited because they are thought to have a negative impact on consumers’ minds, encourage the use of addictive substances, and cause discomfort for people who do not prefer using these substances.
In 1975, “the government of India passed the Cigarettes (Regulation of Production, Supply, and Distribution) Act, which mandated the inclusion of a health warning on all cigarette packages and advertisements. The tobacco and alcohol industries used a variety of media to market and push their products among specific audiences by sponsoring sports and cultural events like international cricket, television shows, and adverts in publications like newspapers and magazines as well as on vehicles like cars and trucks, among other things. India’s tobacco and alcohol industries are investing more money and heavily marketing non-tobacco products under the same brand name. ” Several tobacco corporations have also run appealing schemes like bravery and filmfare awards to subtly promote their goods.
The project aims to unveil the purpose behind surrogate ads, and to look into the social issues that have emerged as a result of such form of advertisings. The project discusses its meaning, numerous laws regarding surrogate advertising, government and various legal authorities role in India in the entire study, Different national regulations and international regulations involved in sorting out the problem of surrogate advertisings would also be discussed in the project. CONSTITUTIONAL FOUNDATIONS OF ADVERTISEMENTS The Advertising Standards Council of India (ASCI) has established a set of codes that govern the conduct and content of advertising in India. These codes serve as guidelines for advertisers, ensuring that their advertisements are fair, honest, and responsible. Advertisers are expected to adhere to these codes in order to maintain ethical standards and addressed to 2 Seema A.
Suryawanshi, “The Study of Surrogate Advertising with An Indian Perspective. ”, Volume 3, Issue:10, Oct 2013. the public on a section of promote consumer trust. According to ASCI Code, “Advertisement is a paid for communication, it, the purpose of which is to influence the options of behaviour of those to whom it is addressed. ” Advertisement is defined under Section 2(a) of Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 as, “Advertisement includes any notice, circular, label, wrapper, or other document and any announcement made. ” An advertising is thus defined as any document that declares or proclaims to the public the production, quality, availability of something. Advertisements falls under the purview of the constitutional provision of freedom of speech and expression as enshrined in Article 19(1)(a) of the Indian Constitution.
To force the press to follow government policy or prevent it from embarrassing the government with scathing exposes and biting criticism, the state has always attempted to place restrictions on the press’s freedom of expression and commercial activities. Because advertising is a newspaper’s primary source of income, the government sought to restrict it for a variety of reasons. The constitutionality of the Control Order was contested in the case of Bennett Coleman v. Union of India3 on the grounds that, “it significantly restricted the freedom of the press by impacting the size of a larger daily publication, thereby limiting its circulation. The court reached the determination that the restrictions imposed were inequitable towards the bigger daily.
Consequently, for the purpose of limiting advertising in a newspaper, whether through direct or indirect means, it is imperative for the State to comply with both Clause 6 and Clause
2 of Article 19. Given that advertisements serve as a substantial revenue stream for
newspapers, any limitations imposed by the State that unduly restrict this income would constitute a curtailment of the right to freedom of expression.” A citizen has the right to publish, disseminate, and circulate his ideas verbally, in writing, or via print in order to spread them. The right extended not only to the subject matter and its dissemination, but also to internal control and the freedom to allocate space for the subject matter.4 Even though an advertisement is clearly a part of freedom of speech, the product it is intended to sell discloses its true character. When an advertisement assumes the structure of a commercial advertisement involving trade or commerce, it departs beyond the purview of freedom of speech since it no longer serves the purpose
3 AIR 1973 SC 106.
4 Sakal Papers Ltd. v. Union of India, AIR 1962 SC 305.
of disseminating social, political, or economic ideas, or promoting literature or intellectual discourse. One cannot claim that the freedom of speech protected by the Constitution includes the right to publish and disseminate commercial advertisements or to promote one’s own business. 5 In the Tata Press Ltd. v. Mahanagar Telephone Nigam Limited and others perspective on this matter underwent a shift6 and held that, “inclusion of advertisements in the Yellow Pages section of the telephone directory. The court concluded that “commercial speech” is encompassed within the broader right to freedom of speech and expression as outlined in Article 19(1)(a) of the Constitution. However, it also acknowledged that reasonable limitations can be imposed on this right, as stipulated in Article 19(2) of the Constitution of India.
” HISTORY AND EVOLUTION OF SURROGATE ADVERTISEMENTS IN INDIA It is believed that surrogate advertising was instituted in Britain as a result of women’s protests against alcohol advertisements, which grew to the point where they had to be banned. The only option left to the owners was to use the brand name to advertise juices and sodas, a practise that was later known as surrogate advertising. Surrogate advertising emerged in India subsequent to the prohibition of advertisements related to alcohol, cigarettes, and other tobacco-based commodities, as mandated by the “Cable Television Networks (Regulation) Act of 1995 and the Cable Television Networks Rules of 1994”. In India, Surrogate Advertising is predominantly utilised in the tobacco and alcohol industries. This is a direct result of the prohibition on tobacco and alcohol advertisements.
7 In order to effectively promote and market their items to a wide audience, the prohibition on alcohol and tobacco has been circumvented by means of surrogate advertisements. The prohibited substance (alcohol or cigarettes) is not advertised to customers directly; instead, it is concealed under a different product bearing the same brand name, causing consumers to start connecting that brand with its principal product whenever that brand is mentioned. Brands such as Kingfisher and Wills strategically rely on these advertisements as a means to
5 Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554.
6 1995 AIR 2438
7 Barcelona Panda, “Surrogate Advertisements
India’s Response Towards International Regulations. ”, available at https://www. manupatra. com/roundup/330/articles/barcelona. pdf, last visited on 17th march, 2025. attract attention towards their products. For instance, Kingfisher has advertised a variety of products under the “Kingfisher” brand, including bottled water, soda, and calendars. Strategies for promotion of Surrogate Advertisements- Since direct advertising is prohibited by law, brands turn to a variety of additional strategies for promotion of product. These are described further below. Promotion by Association This particular form of advertisement centres on the brands’ value proposition and aims to cultivate a specific perception within the minds of the audience. The purpose of this action is to create a sense of relativity.
In general, celebrities make such endorsements because they assist depict the values that the brand is attempting to sell. For instance, the involvement of Shatrugan Sinha in the promotion of Bagpiper soda or Akshay Kumar’s endorsement of the Red and White cigarette brand Promotion by Brand Extension In terms of advertising, brand extension is comparatively new. It refers to the company’s expansion into a venture they had not previously sold. It involves engaging in the marketing of a new product under an established brand identity. As an illustration, Kingfisher has engaged in the sale of many products and services, encompassing water, soda, calendars, and even an aircraft enterprise under the same brand name.
The utilisation of television commercials as a means of promotion Television advertisements represent the prevailing method of brand advertising, catering to a wide- ranging audience. Many products are extensively promoted through television advertisements and product placements in movies. However, due to government regulations discouraging such practises, these products have had to adopt alternative marketing strategies. Currently, these brands engage in the practise of promoting their products through the guise of another product that falls outside their domain, yet nevertheless possesses sufficient influence to enhance the brand’s recall value.
The utilisation of events and sponsorship as a means of promotion As a result of increased government regulations on surrogate commercials, corporations are shifting their focus towards event organisation, event sponsorships, and corporate films. In this scenario, the corporation strategically positions its brand in proximity to the event, thereby generating a heightened level of brand awareness among the event attendees. The utilisation of Public Service Announcements (PSAs) as a means of promotion Companies that sell cigarettes, alcohol, and tobacco products which are normally prohibited from running in print or media advertisements have begun to advertise under the pretext of public service announcements. Recently, this has become a prevalent advertising strategy.
The brands want to raise awareness on the adverse health consequences of smoking and tobacco consumption, as well as the legal drinking age and the importance of refraining from driving under the influence of alcohol. An example for this involves the inclusion of public awareness messages by cigarette manufacturers on cigarette packaging, specifically highlighting the link that exists between smoking and the development of cancer. National and International Regulations Banning Surrogate Advertisements- Ø “Cable Television Network Rules, 1994 (CTN Rules)”- “Cable Television Network Rules, 1994” (CTN Rules) prohibited advertising alcohol and tobacco products in India was implemented in 1994. In response, manufacturers of these products employed alternative advertising strategies, such as the utilisation of surrogate products.
According to Rule 7 of the CTN Rules, as revised in 2000 and 2008, the promotion of alcoholic beverages, cigarettes, tobacco products, and other intoxicants is explicitly prohibited in commercials, whether done directly or indirectly. Rule 7(2)(viii)(a) provides that, “No advertisement shall be permitted which promotes directly or indirectly production, sale or consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants. ” Ø “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003” Section 5 of the aforementioned Act encompasses a prohibition on the advertisement of “Tobacco products” through both direct and indirect methods.
Rule 2 of the COPTA Rules’ Subclauses (i), (iii), and (iv) make it very apparent that using a tobacco product’s name or brand to market, promote, or advertise another brand of product is considered indirect advertisement. Hence, the practise of surrogate advertising employed by the tobacco industry might be categorised as a type of indirect advertisement and would consequently be deemed impermissible in accordance with Section 5. Ø “The ASCI, or Advertising Standards Council of India” It is an autonomous body that operates on a voluntary basis. It has formulated a Code of Conduct aimed at regulating the content of commercials. According to clause 6 of the ASCI Code, “tobacco products, alcohol and gambling are prohibited from being advertised”. In order to promote equitable advertising practises.
The Code encompasses various mediums of advertisement, including newspapers, magazines, television, radio, cinema, and posters. Advertisements for products for which advertising has been banned must not misrepresent themselves as advertisements for other products for which advertising is not forbidden, as stated in Clause 6 of the Code. The criteria for determining whether an advertising is an indirect advertisement are also outlined in this section. According to sections 3. 5 and 3. 6 of the Code for Self-Regulation of Advertising Content in India, it is mandated that products which are prohibited by law from being advertised should not engage in explicit attempts to circumvent such limitation by promoting the restricted products under the pretence of other products.
8 To comprehend the scope of this disguise, the following parameters shall be adhered to: • If the advertisement provides sufficient and clear hints or cues regarding the restricted goods, either directly or indirectly; • Whether or not the particular product that is ostensibly being promoted through the advertisement has sufficient distribution and sales in relation to the scope of the said commercial; and
8 Section 3.5 & 3.6, The Code for Self-Regulation of Advertising Content in India.
In the context of advertising, it is important to determine if the mere mention of a brand name constitutes an objectionable commercial in relation to the two standards described before. Ø “Framework Convention on Tobacco Control (FCTC)” India ratified the World Health Organisation Framework Convention on Tobacco Control (WHO FCTC) on February 5th, 2004, which subsequently came into effect on February 27th,
2005.9 The implementation of tobacco control measures within this convention is well
recognised for its role in safeguarding present and future generations against the detrimental health, social, environmental, and economic ramifications associated with tobacco use and exposure to tobacco smoke. Ø “Consumer Protection Act, 2019” The Consumer Protection Act of 2019 serves to safeguard the interests and rights of customers who may be vulnerable to exploitation and fraudulent practises perpetrated by manufacturers and distributors. The evaluation pertaining to current legislations is of utmost significance, as it allows for an assessment of their effectiveness, identified shortcomings, and potential solutions to address this persistent issue.
The current situation necessitates an evaluation of the autonomy of individuals with the right to advertise in relation to Consumer rights under the Consumer Protection Act of 2019 and other laws encompassing the advertised goods and substances that endanger public welfare. In addition to outlining the need for such standards that support honest and transparent advertising, it also raises serious concerns about any potential violations of advertisers’ rights Section 2(28) of the Consumer Protection Act, 2019, encompasses the provisions pertaining to the regulation of “misleading advertisement”.
Section 2(28)[2]- “Misleading advertisement in relation to any product or service means an advertisement that- (i) falsely describes such product or service; or (ii) gives a false guarantee to or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or (iii) conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade 9 The WHO Framework Convention on Tobacco Control (WHO FCTC), available at https://fctc. who. int/whofctc/overview. practice; or (iv) deliberately conceals essential information. ”10 The guidelines issued by the Central Consumer Protection Authority in 2022 address various aspects of misleading advertisements and endorsements as defined in section 2(28).
Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements,
2022 guidelines offer additional definitions that outline the requirements for advertisements
to be considered non- misleading. They also provide definitions for bait advertisements, and impose a complete prohibition on surrogate or indirect advertisements. In addition to defining surrogate advertising under rule 2(h) of the aforementioned Guidelines, the CPPA also forbids surrogate advertising under rule 6.11
SURROGATE ADVERTISEMENT IN INDIA: AN
ANALYSIS
FROM A JUDICIAL STANDPOINT McDowell and Co. Ltd. v. Unknown (1997) The subject of discussion in the judgement pertains to an inquiry into an advertisement that was published on page 66 of The Illustrated Weekly of India. McDowell and Co. are the respondent in the present case. The advertising showcases a bottle that features the engraved label “McDowell’s Diplomat Cologne. ” The aforementioned advertising has an image of Ms. Dimple Kapadia, a prominent actress in the film industry. The text underneath the image reads, what makes him my choice is his choice-Diplomat. The commission has preliminarily determined that the aforementioned advertisement, while seemingly related to cologne, creates a deceptive perception among readers that the message pertains to the utility of the whisky produced under the brand name “Diplomat” United Breweries Limited v.
Mumbai Grahak Panchayat12 A complaint was lodged against Mumbai Grahak Panchayat against the appellant and Western Railway, alleging the engagement in unfair trade practises through the display of deceptive and surrogate liquor advertisements on the coaches of Western Railway trains. The complaint seeks the cessation of such practises, as well as corrective advertising by United Breweries
10 Section 2 (28), Consumer Protection Act, 2019,
11 Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements Guidelines, 2022, Rule 6.
12 I (2007) CPJ 102 NC].
Limited to counteract the impact of the aforementioned advertisements, and the imposition of punitive damages. The description corresponded to the product known as “Bagpiper Whisky” rather than “Bagpiper Soda”. The Bagpiper soda was not found in the market. As per the advertisement, the promotional slogan for Bagpiper was stated as “India’s No. 1 and the World’s No. 3.” The National Consumer Disputes Redressal Commission noted that the aforementioned tagline included in the advertisement corresponds to the description of Bagpiper whisky rather than Bagpiper soda. The constitutional legitimacy of the Cigarettes and Other Tobacco Products Act (COTPA),
2003 was brought into question in the legal case of Mahesh Bhatt and Kasturi and Sons v.
UOI. 13 The Supreme Court, in its ruling, affirmed the validity of the legislation by asserting that commercial advertisements are eligible for protection under Article 19(1)(a) of the Constitution of India, if they serve the public good. Article 19(1)(a) of the Constitution does not protect commercial advertisements for tobacco products. Commercial advertisements often incorporate indirect or surrogate strategies to promote and foster the consumption of tobacco products. The Supreme Court determined that the limitations placed on electronic media and cinematographic films are both fair and appropriate. The implementation of regulations on print media, aimed at prohibiting the inclusion of brand names and emblems of tobacco products, serves the broader public interest and supports the promotion of the right to life.
In 1991, the Voluntary Health Association of India initiated a Public Interest Litigation (PIL) before the Delhi High Court, requesting a prohibition on the sponsorship of the Indian cricket team by the cigarette brand Wills, which is manufactured by ITC. There were allegations that the impending 2001 World Cup might potentially influence millions of spectators to engage in the consumption of smoking products, as a result of the presence of surrogate commercials. In the year 2001, ITC made the decision to withdraw its sponsorship from several sporting and cultural events as a demonstration of accountability and a gesture of goodwill. In 2008, during the inaugural tournament of the Indian Premier League (IPL), a Public Interest
13 Writ Petition (Civil) Nos. 18761.
Litigation (PIL) was presented to the Supreme Court with the objective of restraining Vijay Mallya from designating his team as the “Royal Challengers Bangalore”. 14 The argument put forth was that the United Breweries Group, indirectly intended to promote its whisky brand, “Royal Challenge” by utilising this team name. During the initial hearing before the Supreme Court, the Bench dismissed the assertion on the grounds that the Royal Challengers and the Royal Challenge are distinct entities, and moreover noted that the petition itself constituted an unjustified promotional act for the liquor brand. The Government issued a notification on February 25, 2008, which imposed a restriction on surrogate advertising of liquor businesses across various media platforms, including print, electronic media.
But later, on February 27, 2009, the I&B Ministry released a notification revising the aforementioned Rule to permit product advertisements that shared a brand name or logo with any tobacco or alcohol product, subject to a number of restrictions, including: (i) the advertisement's story board or visual must only feature the product being advertised, not on any form of prohibited product etc. TV Today Network v. Union of India15 The Respondent alleges that the Petitioner engaged in the promotion of “All Seasons” Club Soda, which is said to be a surrogate advertisement for “All Seasons” Whisky, as both products were marketed in a similar bottle and layout. The commercial was broadcast live on television during the Independence Day celebration.
The video that was presented to the Court demonstrates that during the aforementioned live broadcast, a “L” shaped advertisement on the “Aaj Tak” TV channel was shown. The petitioner claims that this advertisement is related to the “All Seasons” Club soda beverage. The Ministry of Information and Broadcasting deemed the advertisement unacceptable based on the provisions outlined in the “Cable Television Networks (Regulation) Act of 1995”. Consequently, a show cause notice was issued on September 7th, 2020. The Petitioner also submitted a response to the aforementioned notification. Upon considering the arguments presented by the Petitioner, the Ministry of Information and Broadcasting arrived at the determination that the similarity in colour and design between the bottle in
14 Singh And Associates, “Indian Legal Impetus”, Volume XI, Issue 5, May 2018.
15 W.P.(C) 1971/2021 & CM APPLs. 5764/2021.
question and the whisky bottle associated with the advertiser constitutes surrogate advertising. Consequently, a directive was issued to require an apology. The difficulty at hand revolves around the differentiation between club soda and whisky. The court rightly noted that the advertisements in question are surrogate in nature, and emphasised that the petitioner must adhere to the prescribed regulations. Consequently, all petitions seeking relief against surrogate advertisement. UNLOCKING NEW HORIZONS: BRAND EXTENTION AND SURROGATE ADVERTISEMENT “Let’s gear our advertising to sell goods, but let’s recognize also that advertising has a broad social responsibility. ”16 “Khoob jamega rang jab mil bhaitenge teen yaar~ Aap, main aur Bagpiper.
” Who doesn’t recall this catchphrase from the early 1990s that appeared on Indian television to promote “sodas” featuring Jackie Shroff, Dharmendra, and other well-known actors as its faces? This occurrence potentially marked the initial instance of surrogate advertisement on Indian television. 17 Subsequently, a series of unforgettable surrogate advertising campaigns ensued. Several other film stars persist in endorsing the brand extensions of prohibited tobacco and liquor brands. In the realm of advertising, notable figures like as Shah Rukh Khan and Ajay Devgn have been prominently featured in Vimal Elaichi commercials, while Sanjay Dutt has been associated with the promotion of “All Seasons Club Soda”. Additionally, Salman Khan has been involved in endorsing the Rajshree Elaichi brand.
The recent withdrawal of Amitabh Bachchan from promoting Kamla Pasand’s brand extension “Silver Coated Elaichi” has resurrected the spectre of the controversial Surrogate advertisement. Amitabh Bachchan, a highly renowned figure in Indian advertising, encountered a significant negative response from consumers on social media due to his endorsement of a brand that is perceived as a surrogate for Kamla Pasand, a prominent tobacco brand. In providing a rationale for his endorsement, Mr. Bachchan stated that his decision was 16 Leo Burnett, American Association of Advertising Agencies, Central Region Annual Meeting. October 13, 1955.
17 Dr. Saswati Gangopadhyaya, “Surrogate Advertising On Satellite Television
Indian Experience. ”, Journal of Business Management, Commerce & Research Vol-IV ,No. XII, June 2015. motivated by financial considerations, and he was not initially aware of the product’s utilisation as surrogate advertising. However, upon becoming cognizant of this fact, he promptly withdrew from participating in the brand’s advertisements. Brand extension refers to the practise of utilising established brand names and logos for forbidden products. The businesses evaded the ban on surrogacy by disguising themselves as brand extensions, and it became necessary to discern between genuine brand extension and masked product. Blurred Lines Between Brand Extension and Surrogate Advertisement- How to distinguish between them?
The allowance of brand extensions within the framework of the ASCI Code and Cable TV Rules- In order to differentiate between a legitimate brand extension and surrogate advertising, the Advertising Standards Council of India (ASCI) has established specific criteria for advertisements promoting alcohol and tobacco goods on cable television. 18 Rule 7(2)(viii) of “The Cable Television Network Rules, 1994” also establishes a clear differentiation between a legitimate brand extension and a surrogate commercial by the imposition of several requirements19-
1. The advertisement should exclusively feature goods that are not subject to any
restrictions.
2. Any products that are prohibited should not be mentioned, either explicitly or
implicitly.
3. The use of phrases that endorse the prohibited goods should be avoided.
4. The design, colours, or visual elements associated with prohibited goods should
not be utilized.
18 The Advertising Standards Council of India (ASCI) Code Guidelines, 2021 available at
https://www.ascionline.in/the-asci-code-guidelines/, last visited on 17th March 2025.
19 The Cable Television Network Rules, 1994”, Rule 7(2)(viii).
5. Scenarios that are commonly associated with prohibited goods must not be depicted
in the advertisement. The requirement for brand extension advertising to obtain certification from the Central Board of Film Certification has been proposed. In specific instances, “the law explicitly allows for the promotion of Brand Extensions. For instance, “the Cable Television Networks Rules, 1994 (Cable TV Rules)’ mandate that a Central Board of Film Certification (CBFC) certificate must be obtained for the display of advertisements for legitimate Brand Extension products/services, provided that the specified criteria are met. ” The Central Consumer Protection Authority (CCPA) 2022 Guidelines- It is crucial to acknowledge that although the Guidelines explicitly prohibit the promotion of Prohibited Items through various channels, they lack clarity regarding the handling of advertisements for genuine brand extensions.
These brand extensions refer to products or services that are not advertisements for Prohibited Items but share the same brand name. The guidelines acknowledge the inclusion of advertisements for Brand Extension products/services. However, in contrast to the ASCI Code and Cable TV Rules there is a lack of established criteria to objectively verify the legitimacy or genuineness of these advertisements in the guidelines.
CONCLUSION
AND SUGGESTIONS In light of India’s legal and moral framework for promotions, surrogate advertising may be a problem that has to be acknowledged. These industries are more likely to rely on surrogate marketing due to its effectiveness in terms of creating brand awareness, increasing product sales, and reaching a wider audience. The Ministry of Information and Broadcasting of the Government of India intends to subject a greater number of surrogate advertisements to scrutiny. The promotion of genuine brand extensions may face discouragement as a result of the ban on surrogate advertising. It is important to acknowledge that even adolescents as young as 14 or 15 years old are susceptible to the impact of surrogate advertising. Therefore, it is advisable to scrutinise the narrative and content of such advertisements, as they may contribute to a proclivity for alcohol consumption.
Several potential measures can be implemented in order to address the issue of surrogate advertisements-
1. Enacting legislation that prohibits surrogate advertisements for various items
marketed under a unified brand name, with a focus on ensuring transparency in the legal framework.
2. Enhancing the authority of the Advertising Standards Council of India by granting it
the necessary powers to address false and deceptive advertisements. This includes monitoring and addressing instances when the law is cleverly evaded, rather than solely relying on issuing notices and requiring guilty parties to publish apology statements and advertisements.
3. The establishment of a national coordinating framework to effectively implement
international and national norms and commitments is of utmost importance.
4. Initiative involves the establishment of a consumer awareness strategy aimed at
enhancing individuals’ comprehension of surrogate advertisements and their utilisation methods. One proposed measure is mandating that advertising companies possess comprehensive knowledge regarding the products associated with the brand they are promoting through advertisements. Additionally, legal recourse would be pursued against agencies who engage in the creation of surrogate advertisements. Ethical concerns with respect to surrogate advertisement requires a combination of responsible advertising practices, industry selfregulation, and effective government oversight to ensure that surrogate advertising does not compromise consumer well-being or violate ethical standards.