SURROGATE ADVERTISEMENTS

There are no specific laws in India that deal with surrogate advertising. However, the
Advertising Standards Council of India (ASCI) has released guidelines on surrogate
advertising.

According to the ASCI, surrogate advertising is defined as "any advertisement, in any medium,
including websites, social media, television, radio, print and outdoor, the content and/or audio-
visual presentation of which indirectly promotes a brand through the use of another brand or
product".

Some of the key points mentioned in the ASCI guidelines are as follows:

- Surrogate advertisements should not be misleading or deceptive.

- They should not exploit the trust, faith or emotional attachment that consumers have with a
particular brand or product.

- They should not be used to target children or vulnerable sections of society.

- They should not be used to denigrate or disparage any other brand or product.

Surrogate means 'substitute'.

• A surrogate advertisement is an advertisement that duplicates the brand image of one

product to promote another product of the same brand.

"COTPA" [CIGARETTES AND OTHER TOBACCO PRODUCTS (PROHIBITION OF

ADVERTISEMENT AND REGULATION OF TRADE AND COMMERCE,
PRODUCTION, SUPPLY AND DISTRIBUTION) ACT, 2003.]

Section 3(a) of the said act defines 'advertisement' as including: 'any visible representation by
way of notice, circular, label, wrapper or other document and also includes any announcement
made orally or by any means of producing or transmitting light, sound, smoke or gas'

Interpretation: Surrogate advertisements clearly come under the definition as it involves

making the tobacco labels clearly visible to people through other products by the same name.
Moreover, the public is always reminded orally of the tobacco's brand name through the
advertisements of such other products. So, such advertisements are liable to be a subject matter
of this Act and therefore subject to its restrictions.

Section 5(1) of the Act states: 'No person engaged in, or purported to be engaged in the
production, supply or distribution of cigarettes or any other tobacco products shall advertise
and no person having control over a medium shall cause to be advertised cigarettes or any other
tobacco products through that medium and no person shall take part in any advertisement which
directly or indirectly suggests or promotes the use or consumption of cigarettes or any other
tobacco products.'

Section 5(3) of the Act states: 'No person, shall, under a contract or otherwise promote or agree
to promote the use or consumption of—

(a) Cigarettes or any other tobacco product; or

(b) Any trade mark or brand name of cigarettes or any other tobacco product in exchange for a
sponsorship, gift, prize or scholarship given or agreed to be given by another person.'

Demerit: This section restricts advertisement, promotion of tobacco products for direct/ indirect
pecuniary benefit. It is narrow since it doesn't take within its ambit the scope of promoting
tobacco through brand extension and sponsorships.

The Ministry of Health and Family Welfare made certain amendments to the above act
in 2005, stating that the word 'indirect advertisement' mentioned in Section 5(1) would
mean:

• The use of a name or brand of tobacco products for marketing, promotion or advertising
other goods, services and events;
• The marketing of tobacco products with the aid of a brand name or trademark which is
known as, or in use as, a name or brand for other goods and service;
• The use of particular colours and layout and/or presentation those are associated with
particular tobacco products; and
• The use of tobacco products and smoking situations when advertising other goods and
services.

Merit: It's a comprehensive definition and the amendment has taken care of the legal lacuna
pointed out above.
Advertising Standard Council of India (ASCI) code:

ASCI is a voluntary self-regulation council, registered as a not-for-profit Company under

section 25 of the Indian Company Act. It's 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 said 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
paid to the following:

a) Visual content of the advertisement must depict only the product being advertised and
not the prohibited or restricted product in any form or manner.

(b) The advertisement must not make any direct or indirect reference to the prohibited
or restricted products.

(c) The advertisement must not create any nuances or phrases promoting prohibited
products.'

Interpretation: It specifically prohibits surrogate advertising and lays down guidelines which
qualifies it to be so, namely

• Whether the legal product under a tobacco brand, sought to be advertised, has been
produced in reasonable quantities or not.
• Whether in the disputed advertisement, there are any direct/indirect clues to the
promotion of the restricted product i.e. tobacco or not.

The Prohibition of Publication or Telecast of Vulgar, Obscene and Surrogate

Advertisements and Re-mix songs by Print and Electronic Media Bill, 2004:

Though the bill hasn't yet seen the light of the day, the broad framework has been laid down
by the legislature and given to the executive to frame the details under delegated legislation. It
was initiated to provide for 'total ban on the publication of surrogate advertisements showing
substitutes of products, particularly of liquor and tobacco products by magazines, newspapers,
etc. and telecasting of surrogate advertisement so as to protect the Indian culture and values…'

For the first time, a legal definition of 'surrogate advertisements' has been attempted through
Section 2(d), which states: 'an advertisement which shows a substitute product in the guise
of the real one which otherwise cannot be legally advertised through the print and
electronic media.'

Section 3 prohibits the publication by print media and telecasting of surrogate advertisements
and provides that violators of the said provisions shall be punished accordingly.

The Department of Consumer Affairs has recently, on the 10th of June 2022, notified the
guidelines for the “Prevention of Misleading Advertisement and Endorsements for
Misleading Advertisements, 2022” [ Department of Consumer Affairs, Guidelines for
Prevention of Misleading Advertisements and Endorsements for Misleading
Advertisements, 2022,” (Issued on June 10, 2022)]. These guidelines include provisions for
the regulation of misleading advertising, including bait advertisements, advertisements
promising free benefits, advertisements directed toward children, and so on. In addition, the
advertising of surrogates is strictly prohibited by the new guidelines. “Any advertisement that
(a) indicates or suggests to consumers that they are advertisements for the goods, product,
or service prohibited or restricted by law; (b) uses any brand name, logo, colour, or layout
and presentation associated with those goods, product, or services whose advertising is
prohibited or restricted will be regarded as a surrogate advertisement or an indirect
advertisement”, as stated in Paragraph 6 of the aforementioned guidelines. This provision
states that any such advertisement will be regarded as a surrogate advertisement or an indirect
advertisement.

To make this point abundantly clear, this does not imply that the use of a brand name or
company name that can also be applied to goods, products, and services that are prohibited or
restricted from being advertised is considered to be surrogate advertising or indirect advertising
if such advertising is not alternatively inappropriate according to these guidelines. The
guidelines also include the specifics of any applicable sanctions. The consumer protection
regulator has the authority to levy a fine of up to ten lakhs on advertisers who knowingly
deceive their target audience. For each additional violation, the CCPA has the authority to levy
a fine of up to Rs. 50,000,000. It is important to highlight that the rules that have been issued
by ASCII will also be in effect in a parallel manner with the new standards. As a result, both
sets of guidelines will limit the growing misuse of advertisements through the use of surrogate
advertisements.

In the absence of its own criteria, the CCPA will presumably utilize the ASCII code to establish
what constitutes a “reasonable amount” for the industry. If this occurs, the current
‘genuineness’ standards of the ASCI Code would be expanded for the assessment of
“misleading advertisement” under the Consumer Protection Act of 2019, making it
considerably more difficult for corporations to use brand extension to indirectly promote
prohibited advertisements [Ugar Sugar Works Ltd. v. Delhi Administration)12, (1979) 2
SCC 196].