Surrogate Advertising- Law and Cases- India

December 8, 2021

By Rupin Chopra and Apalka Bareja

Henry ford rightly said “Stopping advertising to save money is like stopping your watch to save time.” The most significant technique to fetch a product to customer is advertising. The decades of advertising, focused on consumer importance, has given rise to numerous new methods of advertising. One such method is Surrogate advertising. In a recent news Mr. Amitabh Bachchan terminated his advertising contract with a pan masala company on grounds of Surrogate Advertising.

What is Surrogate Advertising?

To define Surrogate advertising, let’s consider the definition of surrogate by Cambridge dictionary defines surrogate as “replacing someone else or used instead of something else”. Taking its essence from the definition, surrogate advertising is advertising of a product by using something in place of original product. A product is represented as another on account of being alcohol, Cigarettes or tobacco. Surrogate advertising “is duplicating the brand image of one product extensively to promote another product of the same brand. Surrogate advertising is when an advertisement has the logo or brand of another company advertised within it.”[1]

Under the law there are certain products that have been banned from being advertised due to their nature of causing addiction and adverse health effects to the consumer. Products like tobacco, cigarettes and liquor fall in this category. Nonetheless, the industries related to these products are expanding and most importantly creating employment. The producers of these commodities seek to find a way to commercialize and promote these products without much expenditure. The advertising is banned by the government under many legislations, however there have been cases of advertising these products in the guise of advertising it as different products safe for consumption.

Laws governing Surrogate Advertising

Surrogate advertising is in no manner different from fraudulent representation and concealing of facts. It is obvious that the ordinary customers recognize the addictive nature of the product and still prefer to buy it. However, with the increase in youth addition there needs to be a law that can cat as a protective and preventive measure for safeguarding the youth of the country.

The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) under section 5 prohibits the advertisement of Cigarettes, tobacco and its products by direct or indirect means. The

The best example of this can be cited in a petition filed in 1999 before the High Court of Delhi by the Voluntary Health Association of India, where a ban was sought on the sponsorship of the Indian cricket team by Wills brand of cigarettes manufactured by ITC. The appearance of the Wills logo on the sports apparel worn by the cricketers facilitated the repeated telecasting of that logo to millions of viewers. During the pendency of this petition, ITC voluntarily withdrew its sponsorship of the Indian cricket team in 2001 citing the reason that it did not want to derail the genuine efforts of the Government and that it did not want to take undue advantage of its position in the Indian economy.7

Section 5 of the Act prohibits the advertisement of “tobacco products― by both direct and indirect means. From a general look at the advertisement scene it appears that direct advertising is not carried out by the tobacco companies. However, the new trend appears to be that the names of tobacco products are used to promote other products which are in no way related to tobacco, and this may be termed as surrogate advertising. In order to bring it out of the purview of violation of this legislation and its rules, the brand name is withdrawn from the tobacco packets and is exclusively used in unrelated products. But then the point to be considered here is that the brand name so being used will be etched in the memory of the common man as a brand of tobacco earlier available in the market and produced by a certain company. Sub-paras (i), (ii), (iii) and (iv) of Rule 2 of the COTPA Rules, clearly set 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, the surrogate advertising carried out by tobacco companies would constitute a form of indirect advertisement and would consequently be prohibited under Section 5. 2. The Cable Television Networks (Regulation) Act, 1995 (CTNA) CTNA was enacted to regulate the operation of cable television networks in India. Rule 7(1) of the Cable Television Network Rules, 1994 (the CTN Rules), enacted under the provisions of Section 22, provides that: Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers. 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.―

  1. The Advertising Standards Council of India (ASCI) The ASCI is a voluntary self-regulation council, which has drawn up a Code of Conduct to control the content of advertisements with a view to achieve fair advertising practices. The Code applies to all forms of advertisement, that is, to newspapers, magazines, television, radio, cinema and posters, amongst others. Clause 6 of the Code provides that advertisement of products for which advertising has been restricted should not circumvent the restriction by purporting to be advertisements for other products, the advertising for which is not prohibited. This clause also lays down the criteria for deciding whether an advertisement is indirect advertisement.
  2. Framework Convention on Tobacco Control (FCTC) India ratified the Convention on 5 2-2004 and the Convention came into force on 27-2-2005. 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.


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