This article on ‘Surrogate advertising: Concept and Legal Framework’ was written by Mohammed Zaid Alam, an intern at Legal Upanishad.
Surrogate advertising is a term used to describe the practice of promoting one product while advertising another, related product that is restricted from advertising. For instance, a company that manufactures alcohol may advertise a soft drink that they also own to create brand recognition and promote its business without directly promoting its alcoholic beverages. In this way, companies can skirt restrictions on advertising certain products, such as tobacco or alcohol.
In this topic, we will explore the concept of surrogate advertising and its various forms, as well as its benefits and drawbacks. We will also discuss the legal framework that governs surrogate advertising, including the regulations and laws implemented. Overall, this topic aims to provide a comprehensive understanding of surrogate advertising, its uses, and the legal and ethical issues associated with it.
What is Surrogate Advertising?
Surrogate advertising is a marketing practice that involves the promotion of a particular product or service while promoting another product or service. The idea behind surrogate advertising is to use a different product or service to promote a restricted product or service. This is often done when there are legal or regulatory restrictions on the advertising of certain products, such as alcohol, tobacco, or prescription drugs.
Surrogate advertising is a clever marketing technique that allows companies to bypass restrictions on advertising certain products, while still promoting their brand and products. It is a way for companies to maintain brand recognition and create awareness for their products without directly promoting products that are subject to restrictions.
For instance, a company that manufactures alcoholic beverages may use surrogate advertising to promote other products that they own, such as a soft drink, to indirectly promote their alcoholic beverages. By doing so, they can maintain brand recognition and promote their business, without violating advertising restrictions. Contemporary examples of Surrogate Advertising are:
- Frooti: Frooti is a well-known Indian brand of mango-flavoured drink. The brand is owned by Parle Agro, which also owns the alcohol brand, Blenders Pride. Frooti has been using its brand name and logo to promote Blenders Pride on billboards, events, and print media.
- Kingfisher: Kingfisher is a popular Indian beer brand, owned by United Breweries Group. The brand has been using its logo and brand name to promote Kingfisher airlines, which is also owned by the same group. The company used the slogan “Fly the Good Times” to promote its airline services while indirectly promoting its beer brand.
The practice of surrogate advertising is not limited to the promotion of restricted products. Companies also use surrogate advertising to promote new products or services that they have introduced. Surrogate advertising allows them to create buzz around a new product or service by promoting it alongside an established product or service. Surrogate advertising can take many forms, including print ads, television commercials, online advertising, sponsorships, and event promotions.
The goal of surrogate advertising is to create a link between the surrogate product and the restricted product so that consumers are more likely to remember the brand and associate it with the restricted product. In some cases, surrogate advertising can be seen as deceptive or misleading, as it may not indicate the connection between the surrogate product and the restricted product. As a result, many countries have implemented regulations and laws to govern surrogate advertising and protect consumers from misleading advertising practices.
Legal Aspects of Surrogate Advertising
Surrogate advertising in India is governed by several laws and regulations to prevent misleading or deceptive advertising practices. The laws and regulations in India focus on protecting the interests of consumers and ensuring that advertisers comply with ethical and legal standards.
The Cable Television Networks (Regulation) Amendment Act of 2000 prohibits the advertisement of tobacco and alcohol products on cable television networks. However, this law does not prevent the promotion of these products through surrogate advertising. Therefore, the Indian government has introduced several regulations to restrict the practice of surrogate advertising. The Advertising Standards Council of India (ASCI) is a self-regulatory organization that sets guidelines and standards for advertising in India.
The ASCI code prohibits advertising that is misleading, offensive, or harmful to consumers. The ASCI has also established a specific code of conduct for advertising alcohol products, which restricts the use of celebrities, and the portrayal of alcohol consumption as glamorous or associated with success.
The Ministry of Information and Broadcasting (MIB) has also issued guidelines to regulate surrogate advertising in India. These guidelines state that the surrogate product or service should not in any way be related to the restricted product or service. The guidelines also state that the use of words or phrases associated with the restricted product or service should be avoided.
TV Today Network Limited v Union of India is a significant case related to surrogate advertising in India. The case was filed by TV Today Network Limited, the parent company of the news channel Aaj Tak, challenging the ban on surrogate advertising of liquor and tobacco products on television. The Delhi High Court ordered the MIB to enforce the ban on surrogate advertising of liquor and tobacco products.
Subsequently, in 2007, the Supreme Court of India upheld the ban on surrogate advertising of liquor and tobacco products, stating that it was a reasonable restriction on the fundamental right to freedom of speech and expression. The court held that surrogate advertising was misleading and deceptive, and violated the right of consumers to accurate and truthful information.
Additionally, the Food Safety and Standards Authority of India (FSSAI) has issued guidelines for advertising food and beverages. These guidelines prohibit misleading or deceptive advertising and require advertisers to provide accurate and truthful information about their products.
Recent Developments on Surrogate Advertising
In recent years, the Indian government has taken a stricter stance on surrogate advertising. In 2017, the government banned the use of celebrities in surrogate advertising for tobacco products. The ban was extended to include all surrogate advertising for tobacco products in 2020. In 2020, the Indian government extended the ban on surrogate advertising for tobacco products to include all forms of advertising, including online and print media. The ban prohibits the use of indirect advertising, such as the promotion of tobacco brands through the sponsorship of events, and the use of brand names or logos in non-tobacco products.
In 2021, the Advertising Standards Council of India (ASCI) issued new guidelines for surrogate advertising. The guidelines require advertisers to ensure that the surrogate product or service is not related to the restricted product or service in any way. The guidelines also prohibit the use of brand names or logos associated with the restricted product or service, and the portrayal of the surrogate product or service as a substitute for the restricted product or service.
In recent years, there have also been calls for stricter regulations on surrogate advertising of junk food and sugary drinks in India. In 2020, the Centre for Science and Environment (CSE) released a report that highlighted the prevalence of surrogate advertising for junk food and sugary drinks in India. The report called for stricter regulations to prevent the promotion of unhealthy products to children and adolescents.
In a significant development, the Central Consumer Protection Authority (CCPA) issued the Advertising Guidelines on 9th June 2022 in India, which is the first time that the term ‘surrogate advertisement’ has been defined by Indian legislation. As per the Advertising Guidelines, a ‘surrogate advertisement’ is defined as “an advertisement for goods, products, or service, which is otherwise prohibited or restricted by law, by circumventing such prohibition or restriction and portraying it to be an advertisement for other goods, product, or service, the advertising of which is not prohibited or restricted by law”.
Clause 6(2) of the Advertising Guidelines provides that an advertisement will be considered a surrogate advertisement or indirect advertisement if the advertisement directly or indirectly indicates or suggests to consumers that it is in respect of, uses any brand name, logo, colour, layout, and presentation associated with goods, products, or services whose advertisement is restricted or prohibited.
In conclusion, surrogate advertising has been a contentious issue in India, where it has been banned since 2000. The Indian government’s stance on surrogate advertising is that it promotes products that are harmful to the public, such as tobacco and alcohol, and is therefore not allowed.
Despite the ban, surrogate advertising continues to be practised in India, often through creative and subtle means that make it difficult for regulators to detect and take action. The advertising industry has also been criticized for finding loopholes in the law and exploiting them. While the ban on surrogate advertising in India has been in place for over two decades, its implementation and enforcement remain a challenge. The need for stricter regulation and effective enforcement mechanisms is crucial to protect consumers and prevent the promotion of harmful products under the guise of advertising other products.
- Tasnim Jahan, “What is Surrogate Advertising? Live Law, Mar. 16, 2023.
- McDowell’s advertisement: Surrogate advertising or brand extension, available at: https://blog.ipleaders.in/mcdowells-advertisement-surrogate-advertising-brand-extension/ (last visited on March 17, 2023).
- Regulating Surrogate Advertising In India, available at: https://www.mondaq.com/india/advertising-marketing–branding/1231928/regulating-surrogate-advertising-in-india (last visited on March 17, 2023).