Blog: Is this the end of surrogate advertising, finally?

The Government of India’s Central Consumer Protection Authority, on 9 June 2022 put out guidelines for the prevention of false or misleading advertisements

Jun 12, 2022 06:49:00 PM | Article | Sandeep Goyal

My email inbox and my WhatsApp have been flooded with congratulatory messages all weekend as friends, clients and associates wrote-in to say that my ‘crusade’ against surrogate advertising had finally succeeded. The Govt. of India’s Central Consumer Protection Authority, on 9 June, 2022 promulgated Notification F. No. J-25/4/2020- CCPA (Reg) under section 18 of the Consumer Protection Act, 2019 (35 of 2019) and put out guidelines for the prevention of false or misleading advertisements.
Specifically, in definitions, 2.(h) focuses on “surrogate advertisement” which ‘means an advertisement for goods, product or service, whose advertising 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’. 
In the notification, point 6 specifically has this to say on prohibition of surrogate advertising: 
  • No surrogate advertisement or indirect advertisement shall be made for goods or services whose advertising is otherwise prohibited or restricted by law, by circumventing such prohibition or restriction and portraying it to be an advertisement for other goods or services, the advertising of which is not prohibited or restricted by law. 
  • An advertisement shall be considered to be a surrogate advertisement or indirect advertisement, if – (a) such advertisement indicates or suggests directly or indirectly to consumers that it is an advertisement for the goods, product or service whose advertising is prohibited or restricted by law; (b) such advertisement uses any brand name, logo, colour, layout and presentation associated with such goods, product or services whose advertisement is prohibited or restricted: Provided that mere use of a brand name or company name which may also be applied to goods, product or service whose advertising is prohibited or restricted shall not be considered to be surrogate advertisement or indirect advertisement, if such advertisement is not otherwise objectionable as per the provisions set out in these guidelines.
My war on surrogate advertising started way back in 2018 when I wrote an open letter in Campaign to the then chairperson, Advertising Standards Council of India (ASCI), Ms. Abati Sankaranarayan asking if she was sleeping?! I wrote to her saying, “The ongoing Indian Premier League (IPL) tournament has more liquor ads than I can count. There are ads for Seagram’s Royal Stag, Royal Challenge, Signature, Black & White and Chivas. I may have missed out some. Abanti-ji why are you and ASCI turning a blind eye to this charade of surrogate ads that are openly selling liquor, and nothing else? Black & White is advertising something called ‘Gettogethers’. Abanti-ji what exactly do you think Black & White is selling? Royal Challenge has India’s cricket captain Virat Kohli peddling a ‘sports drink’. I tried buying the drink at my local grocer’s. It wasn’t available. I tried the local supermarket. It wasn’t available. I tried the internet. It wasn’t available. Abanti-ji can you help me buy a bottle of Royal Challenge ‘sports drink’ please?  Signature is ‘selling’ (or just promoting) the spirit (pun intended) of  ‘Start-ups’. Wonder why? Abanti-ji would you have any idea on whether Signature is now the newest venture capitalist in town?   Royal Stag is simply selling music CDs. So is Chivas Regal. Must be a really lucrative business for them to afford IPL TV spots at Rs. 9.5 lakhs per 10 seconds. Abanti-ji would you have any idea on how many music CDs are sold by Royal Stag or Chivas?
My open letter created quite a stir. In fact an uproar. 
My daughter, Carol Goyal, a lawyer by training, then tried to register complaints against various surrogate ads with ASCI. She was just given the run-around and nothing really came off all her efforts. Her tryst with ASCI is detailed in a longish article in Campaign dated 11 July 2018 . All e-mail exchanges with ASCI were reproduced and documented in the article but an inert and obstinate ASCI refused to act.
My battle with ASCI simmered over the next couple of years when I again took up cudgels with the coming in of ad-man Subhash Kamath as their new chairperson and wrote to him in Campaign on 12 October 2020 saying I had pointed out to Abati Sankaranarayan that, “The Cable Television Networks (Regulation) Act, 1995, Rule 7(2)(viii) clearly prohibits the direct or indirect promotion and advertisement of & cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants and where in the advertisement are not to use particular colors and layout or presentations associated with the prohibited products. In all of the ads referred above (already mentioned in that article), exact logos and styles of the alcohol brands are being used as is. There is no attempt to hide. Or pretend. Or even ‘pass off’. Brand graphics of the liquor brands are being used in toto by them in the so called surrogates. But the reality is that the surrogates actually do not exist.”
I further elaborated to chairperson Kamath, “In the ongoing IPL too there are liquor ads aplenty… Royal Stag (selling Mark of Purity), Sterling Reserve (packaged water), Chivas (music CDs), Blenders Pride (music CDs) and more… there are also SNJ 10000 (beer) and British Empire (beer) logos on team jerseys. I won’t go into the claims of each of the brands but I did check for Chivas music CDs in stores in Chandigarh, Delhi, Jaipur, Bangalore and Mumbai but found none on sale. I went on-line to check availability. Flipkart’s website did have a listing for Chivas music CDs but said they were sold-out. Amazon had two sets in stock but when I tried to place an order, the site declined the transaction citing a ‘technical error’.”
To be fair, Subhash Kamath responded to my open letter. But while he was polite, his reply was expectedly vague and evasive. But somewhere, all of my jousting was beginning to have some effect. There were debates in media and some stirrings in Govt. ASCI finally moved, and show-caused about a dozen liquor brands. I responded in Campaign through my piece, ‘ASCI on liquor surrogate – too little, too late’
The Secretary, Department of Consumer Affairs, Rohit Kumar Singh, IAS, has done a stellar job by bringing in this new CCPA Notification. He could have done well to doubly reiterate the existing norms that: in-store availability must be at least 10% of that of the leading brand in the category that the product competes, or sales turnover must exceed Rs 5 crore per annum or Rs 1 crore per annum in each state it is distributed in. It must have a valid certificate from an independent organisation for such turnover and distribution data. Advertising for such brand extensions cannot feature what is prohibited by law or banned products. And, all advertising must carry a valid CBFC certificate.
A brief clarification has, you may have noticed, been incorporated in the provision whereby a brand used for ‘prohibited’ goods/services could be used for other goods so long as it does not otherwise violate the guidelines. This, in our view, is slightly vague and may have to be read with the rule 7(2)(viii) of the Cable Television Network Rules, 1994, which indicates in what circumstances use of the same brand as used on ‘prohibited’ goods could be advertised in the context of other permissible goods/services. That I think is fair. 
All in all, my ‘crusade’ over the past four years on surrogate advertising has been pretty lonely – I presume all crusades, by definition, are lonely. But I have had friends, associates and colleagues from advertising itself accuse me of moralistic bias against liquor because I am myself a teetotaler. But that is not true. I have no religious, philosophical or ideological barriers in my mind. I have, without fear or prejudice, just always said that the Law of the land should not be ignored or by-passed. For the last many years liquor surrogates have done that – and blatantly. ASCI has been but a mute bystander. Finally, it is good that the law has been restated and reiterated so that there is no ambiguity. Well done, Rohit Kumar Singh! You are the true epitome of a good bureaucrat. 
Dr. Sandeep Goyal has been in advertising and media for over 38 years now. He is currently managing director of Rediffusion.