This article has been written by Sahil Arora, a student of Guru Nanak Dev University. Surrogate advertising is a marketing strategy used by brands to promote certain products through advertisements that appear to be promoting another product. It is commonly used in industries such as tobacco and alcohol, where advertising is heavily restricted or banned. This article will explore the various aspects of surrogate advertising and its effectiveness in building brand awareness and consumer loyalty.

it has been published by Rachit Garg.

Abstract

What comes into our mind when we hear the lines like “Men Will Be Men” or “Aaj Manao No.1 Yaari”; any CD or Soda bottle. The majority of us will say no because these lines remind us of some liquor. But what if we came to know that whatever we were seeing and understanding was incorrect, or it is better to say that we were intentionally made to see and understand those things via advertisements incorrectly. 

Also, all the things written in this article are taken from different sources like newspapers or the internet and the sources of those things are provided at the end of this article under the “references” heading.

Introduction

In India, as per the Cable Television Network Rules, 1994 (CTN Rules), any sort of advertisement which promotes any intoxicant such as alcohol or tobacco, in any form is strictly prohibited. But if this is the case and moreover if there are rules specifically prohibiting these advertisements also, then how do people in general come to know about any new alcoholic beverage that comes in the market or how these hard drinks and pan masala manufacturers are able to sell their products? Not only just selling, these companies are also profiting handsomely. So how are they able to run their business? Are they doing all this illegally? If it was going on a small scale, then we might have thought of and considered it as an illegal business. But unfortunately, it is not so. In U.S., advertising is a major contributor in the country’s economy. The advertising industry contributes around 20% to the U.S. GDP [1]. Although India doesn’t spend much on advertising as compared to developed nations, but this does not mean that it does not have much influence on people’s mind. This is only advertising which motivates people to spend more, which in turn helps the economy to run and rise.  

These manufacturers are using a loophole in these advertising regulation acts, which is called “surrogate advertising” and the purpose of this article is to create awareness regarding the deceptive practise of surrogate practise prevalent in the advertising industry now a days for promoting intoxicant products. 

Meaning of surrogate advertisement

Surrogate, in simple words, means “replacement” or “taking place of somebody or something else”. Similar to the concept of surrogate mother, where a woman who cannot herself reproduce and then takes the help of another woman (surrogate mother)  to carry forward or extend her family by different medical procedures, the companies who manufacture the products which are prohibited by the government and then advertise under the name of a similar but different product, is called surrogate advertisement. 

In simpler terms, surrogate advertising is performed by companies whose products are prohibited or banned but now substitute or surrogate the brand name with another product. The motive behind doing so is to ensure that the customers can be recalled the original product in the disguise of another advertised product. This process is also called as “brand extension”.

For example, in case of tobacco products like ‘Vimal Gutka’ or ‘Pan Parag Gutka’, they are advertised in the disguise of elaichi (cardamom). Another example in case of liquor is of ‘Haywards’ or ‘Mc Dowells’ which are disguised as soda or ‘Officer’s Choice’ which is advertised as social obligation towards society. Here ‘Vimal and Pan Parag Gutka’, ‘Haywards’, ‘Mc Dowells’ and ‘Officer’s Choice’; these are all surrogate products.

How it is different from normal advertisement

In any normal advertisement, the product which is advertised is the same product which the company wants that the consumers buy and consume. The ad directly and in clear terms describe about the product and will take its generic name again and again does not talk about any irrelevant or unconnected dialogues with that product. For example- if ‘Bisleri’ runs any ad then it will take about water simple and will use the word “water” too in their ad.

But in case of surrogate advertisement, the product which is advertised is not the product which the companies and advertisers want the consumer to buy and consume. They want that through the advertisements, the consumer connect with the surrogate product and whenever they heard or see the name of that brand, they are reminded of that surrogate product only. These ads don’t openly talk about the product regarding which the ad is going on because they don’t want to divert the focus of the consumers from their surrogate products. That’s why their ads also don’t talk much about the generic product regarding which the ad is going on and they use phrases which are not much connected with the advertised product. Example-‘Mc Dowells’ products are advertised like they are of water or soda, but throughout their ad they nowhere use those words. Instead of it they use phrase like “Aaj Manao No.1 Yaari” or “Jashan Yaari Ka”. These lines are nowhere able to describe that how yaari (friendship) is connected to soda. These lines are just made to make the consumer remember the brand and their surrogate product. And how this happens is described in below sub-headings.

History of surrogate advertisement

Traces of surrogate advertisements can be gathered from Britain. In earlier times, there used to be advertisements which attracted the men’s to consume liquor. Seeing the bad effects of the liquor on their husband’s; the housewives started protesting against those advertisements. A ban was imposed on those ads but those liquor companies started selling fruit juices under the same brand name in which they used to sell the liquor. This was in the disguise of fruit juice that the companies were able to sell the liquor ( the surrogate product ).

Although there’s no data which can accurately tell that how much proportion does surrogate advertising constitute in the whole advertising industry, but as per a report around 2.3 billion people are currently drinkers and worldwide around 27% of all 15-19 years old are also drinkers [2]. In the year 2020, 1.3 billion people i.e. 22.3% of the world population uses tobacco products [3]. This shows that the market for surrogate advertisement could also be huge and it includes such products which are not at all beneficial to anyone.

What’s wrong with it

On the surface level, it seems like there’s only cheating or misinformation done to the consumers and the one who is of mature mind will not fall in their trap. But as shown in the start of this article, the lines used by those brands remind a common man of the surrogate product only instead of the product which is being advertised actually. A survey was also conducted in which it was found that out of 50 people watching such ads, 42 believed that they were watching a whisky or tobacco ad and thought that it is legal to advertise such products. This way not only adults but youngsters also get attracted towards these intoxicants and by seeing their favourite actors or actresses in those ads, they started believing that by consuming that product they might become like them. It is sad that the common man didn’t know and also can’t differentiate whether those actors are not aware that they are promoting a product which falls under surrogate advertising or they themselves voluntarily advertising it. There are few instances when some actors after knowing that they are promoting a banned product refused to continue with that brand. Bollywood actor Amitabh Bachchan terminates his contract with a pan masala brand and also returned the fees of that ad [4]. Similarly, actress Sunny Leone has also refused to endorse any pan masala product after the Delhi government’s appeal [5]. But still, there are many actors, cricketers, etc. who are endorsing these products even after so much criticism from the general public. 

At the start of every film no doubt there are warning ads and in between also if any smoking or alcohol-consuming scene comes there is a warning displaying that it is injurious to health. But honestly, it is not showing any positive effect. Rather by seeing such smoking and alcohol-drinking scenes, people are getting more encouraged to consume those products considering it cool. Thus, it is clear that some more stringent measures are required to be taken to curb this problem of surrogate advertisement and ways by which people not get attracted towards these products.

Effects of surrogate advertisements

In spite of the ban on the advertisement of liquor, India is the 4th largest consumer of alcohol beverages in the world. This shows that this form of advertisement is completing its objective. People without knowing the harmful effects or sometimes even after knowing but still consuming these intoxicants because of addiction or peer pressure or sometimes just to have fun. Although a simple google search can provide a list of harmful effects of liquor, tobacco and pan masala. A few of them are as follows:-

• impact work performance
• financial problems due to excessive spending on these substances
• reduced sexual performance
• serum testosterone levels are decreased
• causes cancer, loss of appetite, gum disease, tooth decay, and heart problems
• pregnancy complications
• and, in a worst-case scenario, it can even result in death.

Apart from health problems on an individual level, the economy of India suffers a loss of 1% of its GDP because of diseases and early deaths from tobacco [6]. 

Thinking that brands by doing surrogate advertisements only, i.e. by showing different products under the same name, mislead the common public is not the complete truth. Not only do the brands provide misleading information, but in a few cases some brands are also found which provide wrong information. For instance, in the case of some pan masala products, their packaging shows that their products are nicotine free, but a test by National Tobacco Testing Laboratories (NTTL) found that they are actually nicotine positive [7]. This way even those people who consume these pan masala products thinking that it will not affect them are misled no matter they consume these products after seeing those surrogate advertisements or not.  

Legal steps are taken to tackle this issue

• Item number 51 clause (a) of the State List of the Indian Constitution talks about ‘alcoholic liquors for human consumption’ and thus it gives the state legislature the power and right to make laws related to the alcohol business in the state.
• Article 47 of the Indian Constitution which falls under the Directive Principles of State Policy (D.P.S.P.) puts a duty on the State to improve the health of the public. To achieve it the State should make endeavour to bring about prohibition of the consumption of intoxicating drinks which are injurious to health.
• “ASCI (Advertising Standard Council of India)”, a non-profit company formed under the Companies Act to safeguard against the indiscriminate use of advertising for the promotion of products which are regarded as harmful to society or to individuals. Clause 6 of this ASCI Code specifically prohibits surrogate advertising along with laying down criteria for deciding whether an ad is ad indirect advertisement or not. 
• Some regulations for such advertisements are also prepared by ASCI, which are as follows:

1. The surrogate advertisements cannot make hint towards any banned product. 
2. Product extension must be genuine, which means that the things which the companies are advertising should be the one displayed in those ads and should exist in reality also.
3. The product sold under the brand extension must have at least 10% in-store availability of the leading brand in the product category.
4. The brand extensions must be registered with a government authority like the FDA or FSSAI.
5. These brand extensions must be audited by independent organisations like NielsenIQ.
6. Net sales turnover from the product must be at least Rs. 5 crores per annum nationally or Rs. 1 crore per annum per state where distribution has been established.
7. Asset investment proof can also be shown, which must be made for that product with a value of at least Rs. 10 crore.

• As per Rule 7(2)(viii) of “The Cable Television Networks Rules, 1994 (CTNR Rules),”  it prohibits advertisement which directly or indirectly promotes the sale, production or consumption of liquor, tobacco products, cigarettes, alcohol or other intoxicants.
• 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 the advertisement of tobacco products via direct or indirect means.
• A Bill named “The Prohibition of Publication or Telecast of Vulgar, Obscene and Surrogate Advertisements and Re-mix songs by Print and Electronic Media Bill, 2004” is also pending but this contains definitions and provisions related to surrogate advertising and also restrictions on the publication of the substitute ads.
• “The Ministry of Information and Broadcasting (MIB)” of India issued an advisory to private satellite TV channels and instructed them to ensure that any sort of intoxicant like liquor or tobacco is not advertised directly or indirectly on their channels, in violation of the existing law, namely the CTNR.    
• “WHO Framework Convention on Tobacco Convention” was also developed in response to the globalization of the tobacco epidemic. This convention protects and reaffirms the rights of the people to the highest standard of health. India also ratified this Convention on 5th February, 2004 and the Convention came into force on 27th February, 2005.
• At ground level also authorities are working to control this issue. The Patna state health department imposed a comprehensive ban on 12 brands of pan masala when it was found that they contained harmful chemical ingredients.
•  Prohibition has been imposed on the manufacture, production, import, export, transport, sale, distribution and advertising of e-cigarettes.
• A petition was also filed in the High Court of Delhi to ban the sponsorship of the ‘Wills’ brand which was a cigarette manufacturer under ITC. During the pendency of this petition only, ITC voluntarily withdrew its sponsorship from the Indian Cricket Team in 2001 [8].   

Other steps taken and/or required to be taken

• Sponsorships and events organised by these brands should be banned.     
• Recently, BCCI bans certain brand categories from sponsoring Team India while inviting tender for sponsor rights. The category includes alcohol products and tobacco also.
• Many actors, as mentioned above, are now withdrawing from doing any sort of ads which promotes any intoxicant substance.
• The general public and cricketers, including ex-cricketers like Gautam Gambhir, are becoming aware and now also criticizing persons who are doing pan masala ads.
• The actors who are shown smoking or drinking in the films should come forward in the ads played during the interval of the films and urge viewers not to get attracted by those scenes and stay away from such products. 
• Those actors who are not consuming real intoxicants in the films should be made known to the public.
• And at best, if possible, no such scene should be shown in the films at all.
• No doubt from these products the government is earning taxes and running its other important operations. But risking the lives of its natives in exchange of money is not a good deal in any sense. So the government should also instead of declaring those products as illegal, should totally or gradually ban them in every aspect.
• Also, if the issue of brand extensions can’t be solved in these product cases, then a rule should be made that the products should not come under a single brand name or in similar packaging because of which confusion is created in the minds of consumers and the advantage of this is taken by those brands.   

Loopholes

• There are no restrictions on internet sales or the sale of small packets of cigarettes or other tobacco products.
• In spite of the ban on the manufacture and all of e-cigarettes, there is no restriction on their use.
• There’s no law under which an authority is empowered to regulate the contents of cigarettes. It is not required for manufacturers and importers to disclose to the government authorities the contents and emissions of their products.
• Also, the Centre is deciding to put a ban on the sale of loose or single cigarettes, but nowhere is it told how they will a check that this rule is being implemented.
• Even though a condition is imposed that 85% of tobacco products are to be covered with health warning labels, not much impact can be seen on the consumers. 
• Although surrogate advertising is banned for tobacco products, it is legal in the case of alcohol.
• Although ASCI has time and again banned surrogate advertisements of some liquor companies, but at the same time it has been told that the advertisements against which complaints have been upheld could be published if they are suitably modified [9].    
• Similar is the case where products which were found to be nicotine positive but actually advertising as nicotine free, the brands were told that if they come with confirmation that contaminations have been removed and they will follow FSS Act norms, then they can be allowed to do business. This shows that how easy it can be for such brands to go on by just making a few modifications in their ads and products [10]. 
• The brand extension products are also many times not available in the market which shows that the regulations of ASCI are also not being properly followed.
• Few courts in their judgements are also lifting the state-imposed ban on the sale of chewing tobacco by calling the prohibitions illegal and unjustified [11]. And a few state health departments are also considering appealing against the orders of the court regarding the prohibition on the sale, manufacture or transport of tobacco-based product [12]. 

Conclusion

Although much effort are being done by every part of society including the government, NGOs, courts and individuals at different levels but till the time the government not ban these products completely, i.e. ban them in every aspect, from production and all to consumption and use, there will be no stoppage from companies in promoting and advertising their intoxicated products. For instance, only declaring cigarettes illegal in India will not have much effect on its consumption. Because direct advertising of such products is prohibited by the government, these brands and companies will keep on finding one or other loophole to sell their products and consumers will also consume these intoxicants.

References

1. https://www.ana.net/content%20/show/id/37679#:~:text=%E2%80%9CThe%20very%20fact%20that%20this,not%20subjected%20to%20a%20tax
2. https://www.who.int/news/item/21-09-2018-harmful-use-of-alcohol-kills-more-than-3-million-people-each-year–most-of-them-men#:~:text=An%20estimated%202.3%20billion%20people,Europe%20and%20the%20Western%20Pacific
3. https://www.who.int/news-room/fact-sheets/detail/tobacco 
4. https://indianexpress.com/article/entertainment/bollywood/amitabh-bachchan-terminates-contract-with-pan-masala-brand-returns-fees-7564906/ 
5. https://m.economictimes.com/magazines/panache/sunny-leone-supports-delhi-government-refuses-to-endorse-pan-masala/articleshow/50636020.cms 
6. https://www.who.int/india/news/detail/09-02-2021-india-loses-1-of-its-gdp-to-diseases-and-early-deaths-from-tobacco-use-finds-who-study 
7. https://timesofindia.indiatimes.com/city/patna/nicotine-found-in-7-pan-masala-brands/articleshow/71248360.cms 
8. https://www.itcportal.com/media-centre/press-releases-content.aspx?id=248&type=C&news=ITC-decides-voluntarily-withdraw-sports-sponsorships 
9. https://m.economictimes.com/industry/cons-products/liquor/asci-bans-surrogate-advertising-of-12-liquor-companies/articleshow/80328835.cms 
10. https://timesofindia.indiatimes.com/city/patna/health-dept-bans-12-harmful-pan-masala-brands-in-state/articleshow/70916468.cms 
11. https://theprint.in/feature/hard-won-gutka-ban-is-now-under-threat-this-time-from-courts/1369611/ 
12. https://m.timesofindia.com/city/chennai/tamil-nadu-to-appeal-hc-order-on-gutka-sale/amp_articleshow/97388917.cms 

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