What is Surrogate Advertising?

The objective of the state while banning the direct advertisement of such products it to protect the health of its citizenry, which underlines various national and international goals set by India as a country. It is indeed a matter of no doubt that health takes priority over the advertisement of the goods mentioned above, but these goods which are prohibited from advertising are also large contributors towards the revenue generation in the Indian Economy. There is available mass of law which can be used to regulate this menace of surrogate advertisement, but the laws are being evaded due to the enigmatic accommodation of its contravention by the enforcers, hinting upon the infamously famous corporate lobby fuelled by the capitalist tendencies.

The company’s responsibility towards its stakeholders, since a company’s existence and survival in a marketplace is also influenced by its values perceived by the society. Not to forget there are also endorser’s liability, a person in popular light must assume the ethical and legal responsibility of the product they endorse.

In India the deification of celebrities calls for a heavier check upon them to prove ‘due diligence’ on their part before endorsing the product, as every word uttered by them becomes aspirational. This also holds significance in the contemporary times since the government has very recently issued strict directions to various authorities for better implementation of provisions pertaining to surrogate advertisements. It thus becomes important to carry out a research in order to come with the solution to tackle the problem of surrogate advertisement and it becomes necessary to understand where exactly to draw the line between complete ban and regulation, in order to put public health in equipoise to that of the economic growth.

Legal Framework Against Surrogate Advertising In India

The modern digital era has witnessed commercialisation of exercise of Right to Free Speech and Expression enshrined under Article 19(1) (a) of the Constitution of India. Although, the dissemination of information, thoughts and ideas by means of advertisements, derives its legitimacy from judicial precedents; it is however subject to reasonable restrictions. The current era count big time on advertisement for all the products that can be sold. Advertisements play the medium for both the manufacturer and the consumer for the purpose of sale of products. Today companies invest huge amount of money on brand ambassadors and commercial advertisements to promote their products and services. A fair advertise is one of the principal ethics that is supposed to be followed by the companies because advertisement plays role apart from just promoting brands and products.^[1] A corollary to the legitimatisation of advertisements is the direct influence that it has on the public, who as consumers rely upon it to make innumerable choices.

Nevertheless, not all advertisements have bona-fide stemming, resulting in unfair trade practices like misleading and surrogate advertisements. As a result, the State through Consumer Protection Act, 2019, protects the rights of the consumers who are subjected to exploitation and deceit by manufacturers and distributors. It is of utter importance to construct an examination of present-day legislations, the extent to which they are operative, their lacunas and possible remedies to this ever-existing problem. An assessment of the autonomy of people with the right to advertise vis-à-vis Consumer rights under CPA, 2019 and other legislations encompassing the goods and substances advertised that put public welfare at peril is the need of the hour. It states the necessity of such regulations that empower transparent and bona-fide advertisements while critically questioning the infringement of rights of the advertisers, if present.

Surrogate advertising came into India in the mid-1990s after the Cable Television Networks (Regulation) Act, 1995 read with Cable television Rules, 1994, came into force, which banned direct liquor, tobacco and cigarette advertisements.1 Before that the Cigarettes (Regulation of Production, Supply and Distribution) Act,1975 made it mandatory to display a statutory health warning on all packages and advertisements. Advertisements have a strong influence in the minds of consumers especially in this era of new age technology. Banning direct advertisements about liquor and tobacco was a step ahead by the Government to curb the influence of such advertisements on the public and effectively diminish the ill effects of these products in general. Therefore Surrogate Advertisements by these liquor and tobacco companies defeat the very purpose of this ban.

The Consumer Protection Act, 2019, provides for ‘misleading advertisements’ under Section 2(28).

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 practice; or (iv) deliberately conceals essential information.

The Central Consumer Protection Authority’s guidelines on ‘Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 touch upon each sub-section of section 2(28) and provide further definitions to include conditions for non-misleading and valid advertisements, definitions for bait and free-claim advertisements, and the complete ban on surrogate/indirect advertisements. The CPPA has not only defined Surrogate Advertisement under rule 2 (h) but also prohibited Surrogate Advertising under rule 6 of the said Guidelines.

Section 5 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 prohibits those engaged in production, supply and distribution of cigarette/tobacco products and advertisers from advertising tobacco products directly or indirectly.

Rules 7 of the Cable Television Network Rules, 1995 prohibits direct or indirect promotion, sale or consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants. However, the first proviso permits the advertisements of brands of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants, provided no direct reference is made to the prohibited products and the storyboard and visual representation depicts other products.

Chapter III of the ASCI Code^[3] allows use of a brand or company name associated with a restricted good to be used for advertising unrestricted goods in case it is a genuine brand extension, and generally lays down the following factors to be considered in determining whether a brand extension is genuine:

1. Whether the unrestricted good is produced and distributed in reasonable quantities to justify the scale of advertising, media used and markets targeted, and,
2. Whether the advertisement direct or indirect clues/cues which would lead a consumer to associate the advertisement with the restricted good?^[4]

However there is an open to interpretation clause as to how and what can be “reasonable” advertisement.^[5]

In TV Today Network v. Union of India^[6], ‘The allegation of the Respondent is that the Petitioner ran an advertisement of “All Seasons” Club Soda which was a surrogate advertisement for “All Seasons” Whisky sold in a similar bottle and layout. The telecast of the advertisement took place during the LIVE coverage of the Independence Day event. The footage which was shown to the Court shows that in the said live telecast, an ‘L’ shaped advertisement was broadcast on the ‘Aaj Tak' TV channel, which, according to the Petitioner, relates to the “All Seasons” Club soda product The Ministry of Information and Broadcasting (hereinafter, I&B Ministry'), however, found the same objectionable in terms of the provisions of the Cable Television Networks (Regulation) Act, 1995 and issued a show cause notice on 7^th September, 2020. Reply to the said notice was also filed by the Petitioner. After hearing the Petitioner, I&B Ministry came to the conclusion that the colour and layout of the bottle being the same as the whisky bottle of the advertiser, the advertisement is nothing but surrogate advertising and hence, the direction to issue an apology was imposed. The challenge case rests on the distinction between club soda and whisky. For persons who consume the same, the distinction is quite clear! However, in the case of advertisements which are alleged to be surrogate, the lines are blurred. It was duly observed by the court that such advertisements are Surrogate and the petitioner are supposed to follow the mandate and hence disposed of all such petitions seeking relief against surrogate advertisements.

In United Breweries Limited v. Mumbai Grahak Panchayat^[7], on the complaint of Mumbai Grahak Panchayat, Maharashtra State Commission issued direction to the appellant to prominently display the corrective advertisements as given below for the period of one week on coaches of Western Railway at their cost:

“Keep Liquor Away from Young Generation”

“India's No. 1—Only Natural Fruit Drink”

“Limbu Paani, Nariyal Paani, Yehi hai Apna Alag Andaz:”

Aggrieved by the order, appellant filed this appeal. The Court observed that the appellant, who has taken advantage of unfair trade practices by publishing surrogate advertisement should not be absolved from its liability to issue corrective advertisement to neutralize the effect of misleading advertisements and hence the appeal was dismissed.

Though amendments, aiding guidelines and judicial precedents have addressed the predicaments like disguising prohibited and harmful products as general ones, and identification of a ground to distinguish surrogate advertisements from others, their implementation still holds the major concern.

Views are personal.