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SURROGATE ADVERTISING IN INDIA: A LEGAL PERSPECTIVE – ANCHAL

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SURROGATE ADVERTISING IN INDIA: A LEGAL PERSPECTIVE

Author: Ms. Anchal

Student, Amity Law School

Abstract

As a famous saying goes “The answers to life’s problems aren’t at the bottom of a beer bottle.” The answers are in fact within one’s own self. And yet, yet a man gives in himself to alcohol which looks like ‘a helping hand’ at first but in reality is the most toxic tool of self-destruction. India is a country that was known to have discouraged drugs like alcohol. India’s culture had always been of one such kind. But things have changed ever since. In a recent global study, it was found out that alcohol consumption in India has risen by 55% over a period of 20 years. Today, there are serious problems arising in the country physically, emotionally and in all the other ways one can think of, due to not just alcohol but overall ‘Substance Abuse’. Substance abuse is slowly becoming a threat to the lives of thousands and lakhs of people in the country and to the overall nurturing and well-being of the country. ‘Substance Abuse’ in very simple terms can be put as ‘excessively harmful use of substances including drugs, alcohol, cigarettes, and tobacco.’ Substance abuse is a condition in which the victim continues its regular and harmful use of either drugs or alcohol or tobacco or does not stop smoking despite its negative consequences. It’s an illness, a disease whose cause can be attributed to many different things and which can result in serious and negative results.

Introduction:

Harmful substances that are consumed by people include drugs, alcohol, cigarettes, and tobacco. Even after knowing that these substances are so harmful that excessive consumption of them can cause death of a person and otherwise ruins the whole life of not just the consumer but also his/her near and dear ones, the consumer still doesn’t stop consuming and the producer of the product doesn’t stop producing or selling. There are so many lives that are ruined because of these substances and so many dead that are caused every year because of these substances but there are still many people who would not produce these substances for the sheer greed of some money. The Government doesn’t put a complete ban on these substances because it earns a good amount of tax from them (except for drugs). It is beyond my understanding why the Government is unable or is unwilling to ban the slow poison and look into it that the consumption is banned.

When advertisements are visually displayed on a television or in the middle of movies or before the beginning of one, they are displayed in the speed of light so that their mere obligation of showing an ad is fulfilled but that does the viewers no good or does not benefit their minds in any way. There are display pictures on the cigarette and tobacco boxes and packets too but no one takes them seriously. When the Government has banned the advertisement of these harmful substances, the producers of these substance brands still advertise the brand with the label of a different product which is mostly for the advertisement of these substances.

The world is being ruined. The country is being ruined. The lives of so many are being ruined. When men practice this kind of behavioral patterns when they cannot stop their excessive consumption of these substances, the lives of the family members is ruined more than that of the person. The lives of many children are ruined.

ADVERTISEMENTS

Advertising is a marketing means that employs an openly sponsored, non-personal message to be communicated in order to promote or sell a product, service or idea. Sponsors of advertising are typically businesses wanting to promote their products and services. An advertisement is what is promoted through advertising. An advertisement or ad is a paid, non-personal communication of a message of promotion of a good, service or idea amongst the general public.

SURROGATE ADVERTISEMENTS

The word Surrogate is defined meaning substitute and surrogate advertisements are exactly that. A surrogate advertisement can be defined to mean an advertisement that duplicates or tallies the brand image of one product to promote another product of the same brand. It means that another product of the same brand as any other product is advertised in order to keep in mind of the general public that product of the same brand which cannot be advertised directly.[1]

In layman’s terms, for example, there are just two products under the same brand naming Green chili. One product of this brand is green flake cigarettes and the other product is actually green chili pickle. Out of the two, the advertisement of green flake cigarettes is banned, so surrogate advertisement means promoting or showing ad of green chili pickle causing indirect promotion of green flake cigarettes too as they are two products under the same brand and when the viewer will view one product, the brand name and image will definitely create the image of another product of the same brand in the mind too.

The surrogate could either visually match the original product or could be a different product altogether but it is sold or marketed under the established brand name of the original product. Surrogate advertisements are used to promote, advertise and sell a product or products of the same brands when the original product cannot be advertised on mass media. Some examples of surrogate advertisements are Bagpiper Soda, Imperial Blue Cassettes and CDs,  Royal Challenge Golf Accessories and Mineral Water, etc.

FUNCTION OF SURROGATE ADVERTISEMENTS

Surrogate advertising tactics are used by the producers to keep the brand of their products which are banned from advertising alive in the minds of consumers. The most significant function of a surrogate advertisement is brand-recalling. A surrogate advertisement advertises other market commodities without specifically adhering to tobacco or liquor but under the same brand which makes the general public bring the tobacco and liquor of the same brand in their minds and hence their product is advertised.

Surrogate advertising came in India in the mid-1990s. This happened after the Cable Television Networks (Regulation) Act, 1995 read with Cable television Rules, 1994, came into being, which banned liquor, tobacco and cigarette advertisements directly. Earlier than this that the Cigarettes (Regulation of Production, Supply, and Distribution) Act,1975 made it mandatory to display a health warning on boxes and packets of the products and also in advertisements. Advertisements have a strong influence and impression in the minds of the consumers especially in this era of technology. Banning advertisements about liquor and tobacco was a step ahead by the Government to curb the influence of such advertisements and effectively diminish the ill effects of these products in general.[2]Today, Surrogate Advertisements by the producers of these products defeats the very purpose of the ban.

Launching new products under the same brand name is not an illegal or objectionable activity in nature and is known as a brand extension but the problem arises when a brand extension happens in response to a ban on advertisement of one product category.

SURROGATE ADVERTISEMENTS IN INDIA

In India, Surrogate Advertisements are majorly carried out in the tobacco and liquor sector. This is a direct result of the ban on direct advertisements of these harmful substances. Therefore to promote and conduct advertisement of their products to the general masses, the producers of these substances found a means to advertise their products through surrogate ads. The banned product is not directly shown to consumers but rather masked under the aegis of another product of the same brand name so that whenever there is a mention of that brand, people start associating it with its main product in their minds.[3]

Instances are brands like Kingfisher and Wills actually depend upon such advertisements to draw the attention of the public to their other products. For instance, Kingfisher promotes everything starting from bottled water, to soda and calendar under the brand name Kingfisher. Former Union Health Minister Mr. AnbumaniRamadoss had challenged the name of the Bangalore Indian Premier League (IPL) cricket team named as Royal Challengers, which was an evident surrogate advertisement for the liquor brand Royal Challenge. The Supreme Court of India has since pointed out that the team was not named ‘Royal Challenge’, the liquor brand but ‘Royal Challengers’. ‘Only those who consume alcohol can be attracted by these things,’ the bench observed inferring that this name would not have any effects on non-drinkers.

NATIONAL AND INTERNATIONAL REGULATIONS

CIGARETTES AND OTHER TOBACCO PRODUCTS(PROHIBITION OF ADVERTISEMENT AND REGULATION OF TRADE AND COMMERCE, PRODUCTION, SUPPLY, AND DISTRIBUTION) ACT, 2003 (COTPA)

Section 5 of the Act restricts the advertisement of tobacco products in all direct and indirect means. Sub-clauses (i),(iii) and (iv) of Rule 2 of COPTA Rules, make it clear that the use of a name or brand of Tobacco products for marketing, promoting or advertising any other product or products would be a form of indirect advertisement and is hence restricted. Similarly, surrogate advertising carried out by tobacco companies would mean to be a form of indirect advertisement and would be prohibited under Section 5.

THE CABLE TELEVISION NETWORKS (REGULATION) ACT,1995

Rule 7(2) (viii) of these rules expressly prohibit the direct or indirect promotion and advertisement of substances including cigarettes, wine, alcohol, tobacco products, liquor, and other toxic substances. The proviso to this rule says: A product that uses a brand name or logo, which is similarly used for cigarettes, tobacco products, alcohol, wine, and liquor, or other like intoxicants, may be advertised on cable services if certain conditions are fulfilled. The conditions are as follows:

It is important to ban the advertisements directly as well as indirectly. Otherwise, the producers of these substances take the help of indirect means to advertise their products if only the direct advertisements are banned.

THE ADVERTISING STANDARDS COUNCIL OF INDIA(ASCI)

The advertising standards council of India is a voluntary self-regulating council. It is a body registered and working as a non-profit company under the Companies Act. It is established to safeguard against the ethically wrong use of advertising for the promotion of products that are regarded as hazardous and harmful to the society or to individuals to such a degree or extent that it is unacceptable to the general public or society at large.[4]

Section 6 of the code states almost the same thing as the cable rule. This section of the code purposefully prohibits surrogate advertising along with laying down the conditions for deciding whether an advertisement is an indirect advertisement or not.

FRAMEWORK CONVENTION ON TOBACCO CONTROL(FCTC)

The convention was ratified by India on 5th February 2004 and the Convention came into force on 27th Feb 2005. The aim of the convention is to protect the present and future generations from the disastrous health, societal, environmental and economic consequences of tobacco consumption and exposure to smoke by tobacco by providing a framework for tobacco control measures.

Article 13 of the Convention is known as Tobacco advertising, promotion, and sponsorship. This article recognizes and realizes the fact that a comprehensive ban is necessary and needful. The framework gives the parties the freedom to introduce a comprehensive law banning all tobacco advertising, promotion, and sponsorship.

LEGAL PERSPECTIVE OF SURROGATE ADVERTISING IN INDIA

In the year 2008, the Government banned surrogate advertising of liquor companies in print, electronic and outdoor media. However, in the year 2009, the I&B Ministry issued a notification amending the Rule to allow advertisements of products that shared a brand name or logo with any tobacco or liquor product with the conditions mentioned above too. The conditions are common in many rules and conventions are as follows: The advertisement in visual means or in storyboard must only depict the product meant to be advertised and not the prohibited products in any form or manner, the advertisement must not make any kind of, express or implied reference to prohibited products, the advertisement must not contain any terms or phrases leading to promotion of the prohibited products, the advertisement must keep away from using the specific colors or layout and presentations associated with promotion of the prohibited products and the advertisement must not use circumstantial promotion typically used for promotion of prohibited products when advertising the other products.

In 2014, a social activist filed a PIL in the Delhi High Court to seek a ban on surrogate advertisements. She argued that the Cable Television Network Rules of 1994 must require the conditions that all advertisements found to be genuine and honest extensions by the Ministry of Information and Broadcasting must be reviewed and certified by the CBFC. This PIL was later withdrawn was reasoned unknown. It is evident from the aforementioned existing laws and regulations that any direct or indirect advertising of the prohibited products is restricted in India.[5]

While a Government of the year 2009 (Feb, 27) allows advertisements of products that share a brand name or logo with any tobacco or liquor product but at the same time it also mentions that no direct or indirect reference could be made to the prohibited products in any form.

NEEDED MEASURES TO COMBAT SURROGATE ADVERTISING

  1. It is essential to make clear and unambiguous transparent laws banning surrogate advertisements for different products under a single brand name.
  2. It is important to create consumer awareness programmers to help people understand the evil impacts of this kind of advertisement.
  3. More power should be provided to the Advertising Standards Council of India to encourage it to take action against false and misleading advertisements and keep an observance over clever evasion of the law.
  4. It is needful that a mechanism for the effective implementation of international and national regulations be established.
  5. NGOs such as HRIDAY or Health-related information dissemination amongst youth and SHAN or Student Health Action Network led campaigns appealing the Government for a comprehensive and wide ban on tobacco advertising. The role of NGOs in combating the ills of surrogate advertising should be given recognition and they should be given more power to work on such issues.[6]

CONCLUSION

In my conclusion, I would like to state that these substances are a subject in the State List under the Seventh Schedule of the Constitution of India. Therefore, the laws governing them vary from state to state. Liquor in India can be found almost anywhere and everywhere from liquor stores to restaurants to hotels, bars, and clubs. Cigarettes and tobacco are sold in every little roadside shop. The easy availability of alcohol, tobacco, and cigarettes is another reason for increased substance abuse in the country from the past many decades. Alcohol and cigarettes have become more of a social luxury, a symbol of high class and hence, along with the lower classes the higher and educated classes also enjoy and feel a sense of pride in the consumption of these things. The legal drinking age varies from state to state. Where in some states it is 18 or 21, in others it is 25. Alcohol is banned in states like Nagaland, Gujarat, in Lakshadweep Islands and most recently in Bihar but despite restrictions and various laws in the country, the percentage of people who consume it in the country had been on the rise.

These substances are slow poison and it does nothing but ruin lives. It feels good at first and you start to get in a grip of it, you feel good as you start to fit in with the high class as you drink and smoke regularly in clubs, late-night parties and in social gatherings and it does not seem to be a very big deal or wrong at all. Everyone’s life has problems, small or big, doesn’t matter but when you use these substances on a regular basis and you face some tensions or stress in your life, the consumption of these substances tends to increase and slowly the victim loses control over it. That’s when it becomes a real problem. Substance abuse can turn your most loved person into someone you can start hating, it can turn even the most perfect of relationships sour and it gives rise to all the negative emotions one can think of like pain, anger, helplessness, fear, anxiety and it tests once patience and cool.

Hence, I feel the control of these substances must be taken in control by the center and banned once and for all. Not just banned, it must be taken care of by the center that there is no consumption of these substances. The Centre must take strict actions to remove the production, sale, and consumption of these substances from the country and ban surrogate advertising too.

Substance abuse is not just a physical disease, it is a disease that brings out all the mental tensions a person can have. It does affect the victim in most of the ways but when it comes to mental tension then more than the person itself, the sufferer is the victim’s family and friends, people who are really close to the alcoholic. They are the ones on whom the mental tensions are inflicted upon the most, the ones who are looked down upon by many in the society.

[1]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[2]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[3]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[4]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[5]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

[6]SharbaniRaut, Surrogate Advertisements In India, http://www.mondaq.com/india/x/606974/advertising+marketing+branding/CROSS+BORDER+INSOLVENCY+A+NEW+REGIME.

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