SURROGATE ADVERTISING: LEGITIMATE OR LOOPHOLE IN THE SYSTEM?

ABSTRACT- 

Surrogate Advertising is a form of Advertisement, where products which are Banned/Illegal by the Government, or any Authorized Statutory Body, Such as Tobacco, Cigarettes/Liquor are advertised in a manner with their Doppelganger products as their substitutes to promote their original product, which is illicit to promote, this is a kind of Loophole in the system  by having a face of a legalized products. This kind of advertisements are also referred as False Advertisements, which have ulterior motive to target the audience for the branded products ultimately their objective is to sell their illicit products. This type of Advertisements are broadcasted to give a kind of subliminal message to purchase their product, now this is a proven psychological fact that if someone who is used to that particular product, sees that product ad or sees anyone consuming around him, his urge to consume that product rises, where the hormonal/mood factor come in and finally he’ll consume, for example “Watching others smoke makes smokers plan to light up”. The motive of a surrogate advertisement fulfilled, so this is how companies are targeting their actual audiences. Ever heard this phrase, like “tell me who you are without telling me who you are” – Surrogate Advertisements revolves around this phrase in Advertising Industry. In this Article we are going to understand like What are these advertisements, are they even legal, what is the main agenda behind these advertisements and why are these advertisements marketed by this way. The surveys and studies conducted reveals that through this Surrogate Advertisements 42 out of 50 have a direct impact on consumer behavioural change. We are going to understand this whole setup by the Advertisers. This Article also includes case studies involving branding techniques all around the Globe, brands which are recognised, produced and consumed all over world. 

KEYWORDS-

Surrogate Advertisements, Illicit products, Branding, Integrated Marketing Strategies, Agenda, Celebrity Endorsements, Brand Extensions.

INTRODUCTION-

The term Advertising/Advertisements comes from Latin verbs Ad- “towards”, Vertere-” turn to” combining these two words; {to turn one’s attention to something}. It is defined as “a picture, short film, song, etc. that tries to persuade people to buy a product or service”.  Advertising can date back to the Egyptians era where political campaigning and commercial posters have been found, it was also seen in the ruins of Pompei, same was discovered in ancient Arabia and same with goes with ancient Greece and ancient Rome. The advertising is not a new subject to the world, it’s just that time to time the techniques have been improved or being upgraded, in ancient times we have observed that advertising through paper, posters, announcements, by people themselves going to much crowded place for promotion of their products, for this kind of advertising back then there were proper professionals who were named as Town Crier and Bellman, this kind of advertising could be seen till date in our country especially in rural India. These practices have seen over a century in modifying of techniques in Advertising/Advertisements. In late 18^th century advertisements were seen first time in weekly newspapers of England, which were used mainly to promote books and newspapers, which became increasingly affordable with advances in the printing press; and medicines, which were increasingly sought after.    

Fast forward to 20^th century, Likely the term “Surrogate Advertisements” was seen in between 1960’s-70’s, when people’s knowledge of the danger of Tobacco’s use to their health was in increase. Back in Britain when Housewives were seen protesting these liquor advertisements, protests rose to the level when governments had to impose complete ban on sale and promoting of any liquor products. Governments started passing stronger laws against Tobacco’s advertising in response. The Regulations on the promotion of alcoholic beverages were also prompted by worries due to its addictive nature and after consumption it would lead to alcohol abuse. Due to the Regulations imposed on these businesses, companies started to Route for unique strategies to sell their liquor and tobacco, companies would opt for variety of advertising techniques, like the brand owners used to sell fruit juices and soda under the brand names, later this concept became as surrogate advertisements. Present scenario- 21^st century became millions of dollar market on international level.  

What are Surrogate Advertisements/Advertising?

In simple terms Surrogate Advertising is a form of advertising technique which uses legitimate products to promote their branded products which fall under banned/prohibited category authorized by the Law. As the term “Surrogate” itself depicts of being substituted. In India, surrogate advertisements are common and used across several media platforms whether be it digital or any broadcasting channels. Most of us had seen liquor brands using their brand names and logos to promote products like music CDs, soda, and more. While the targeted audience knows a particular brand’s niche, Surrogate Advertising helps you get your message across in a subtle and legal way. Talking about Surrogate Advertising vs. Direct Advertising, the difference lies only in the products being advertised. Everything else, from the use of logos of branded companies to production value, remains the almost same. The Surrogate products promoted by a brand may or may not be related to the product it is restricted from advertising. For example, a liquor company may choose to sell soda bottles or music CDs through surrogate advertising. These kinds of cases have seen a lot in India as well as Globally.

Stringent action if Surrogate Advertisements rules not followed: Consumer Affairs secretary

Need to curb surrogate ads across industries to protect consumer rights: Government

We have seen these kind of news articles getting limelight, but only warnings could set the things right, then it would have been much easier for governments, but the reality is very much far from the Illusion. The Cable TV Regulation Act banned liquor and cigarette advertisements, thus India gradually adopted surrogate advertisements. Advertisements for liquor and cigarettes have been banned since 1995.

Types of Surrogating Advertisements:

1. Brand Depiction:

The TV commercials that mention the product for which company is not known as a way of bringing up the idea of a product for which company is known.

For Example;

1. Alcohol- Related Products.
2. Tobacco- Related Products.
3. Product Placements in Movies.  
4. Event Promotion:

Sponsoring Events and Sporting teams is also another set of examples. As in India if we are talking about the sports, Cricket has the large number of audience where the consumers are in a huge size.

3. Digital/Online Marketing:

Online/Digital Marketing is a trend in this decade where everyone is using platforms like Facebook, YouTube, Instagram and other various digital platform available on the internet to promote their brand and even sell products on such Platforms.

4. Videos and Albums of Music:

This kind of technique is very subtle where a branded liquor/tobacco/ any other product is placed (which is illegal/banned) and not even getting noticed of such act, this kind of technique was introduced because of the rise of music industry and the Digital media Influencing by Influencers. 

Pros of Surrogating Advertisements:

1. One of the highest revenue earners for the government, by the ways of taxes and duties. Also, high revenue earners for television channels and Broadcasting companies.
2. Surrogate Advertisements are helpful in building a better brand image and awareness, this branding concept provides a good value for money to the broadcasters. And this could allow the marketers of banned products to get market exposure.
3. Brand Promotion Without Violating Regulations, this is depicted but that is what a loophole represents by-passing the regulations imposed and promoting the illegal products.

Cons of Surrogating Advertisements:

1. The biggest disadvantage of Surrogate Advertisements is that the public is not so naive that it will favour the product just because it is evoking an image in the audience’s mind associated with your product. probably, laws were made against advertising your product because the public’s opinion was already opposed to it. Laws, after all are just an extension of pre-existing views held by most of the people.
2. Most of the branded liquor companies even cigarette companies and tobacco companies would pay huge amount of money in order to create awarenesses and promote their branded products to a large number of audiences, motive to sell the products and spread the brand name as much as possible. Some of the companies have complete department dedicated to the marketing Strategy for the brand endorsements.
3. Another Disadvantage of this Surrogating Advertisement’s Technique is that the consequences of the promotion leading to consumption which will bring an unnecessary Behavorial change in the consumers as side effects proved in scientific studies. As brand companies would not care about the consequences but only to make profit out of the consumers. 

Branding Techniques (case studies) through surrogating Advertising:

1. Same-Same but Different:

Ever heard of Rajniganndha, Kamal Pasand, Pan Vilase, Veemal, Pan Bahaar, Imperal Blue, Royale Stag, Kingfesher, Hayewards, Bag Pipre etc… there is long list of these brand names. The reason why I have taken all these names is that these names represents different products on Television/Advertisements but  all these Advertisements have a similar branding Technique, which is under same brand name of the product like Kamal Pasand represent as Mouth freshener but in reality also has another product which is an original and actually that product is illicit and banned to promote or to even advertise, even a small hint towards banned product could attract legal charges in violation of The Advertising Standards Council of India (Regulations). 

S.no.	Brand Name	Actual Product (Banned)	Surrogate Product
	Kamal Pasand	Tobacco	Mouth Freshener
	Rajnigaandha	Tobacco	Elaichi
	Royale Stag	Liquor	Music CD’s
	Kingfesher	Liquor	Bottled Water, Airlines
	Imperal Blue	Liquor	Music CD’s
	Hayewards 5000	Alcohol	Soda
	Veemal	Tobacco	Mouth Freshener
	Pan Bahaar	Tobacco	Elaichi

Like these there are many surrogate advertisements, the origin for this Technique is- Hindustan Unilever Limited (HUL), where we all have heard and seen Boost, Horlicks, Clinic Plus (Shampoo) Kwality walls (Cornetto), these products are owned by same parent company but manufactured by different brands and different products which is not an illegal act but there is a similar factor between these commercials and those Tobacco/Liquor Surrogate Advertisements.  

2. Manikchandd:

This brand Rasiklal Manikchandd Dhariwal (RMD) is popularly Known for Tobacco (Gutkha) as Manikchandd in market, so earlier before the ban i.e. may-2003 this brand used to sell and promote their product (Gutkha) as in one sachet/packet but post-banning by Government, they developed a unique idea by packing the Gutka/tobacco in different packet and the mouth freshener. The two packets are of same company/brand but one clearly labels of containing Gutkha/Tobacco and other packet label specifies of not containing Gutkha/tobacco in it. This strategy was later criticised because Government made complete ban on such products in India.

3. Bolo Zubaan Kesari:

Many of us heard this phrase infact some of us use this phrase to tease our friends in a lighter moment or pet a nickname but at the same time most of us know from whom we have learnt this i.e. so-called celebrity and their advertisements. Yes, here comes the angle of Celebrity Endorsements/Influencing, Now-a-days influencing has become a viral sensation especially among youth, where influencers have many followers. Back in late 20^th century Actors/Stars of top movies had huge number of following where haircut, fashion and even the voice/style of those actors was a trending factor, but in 21^st century the so called digital era of Facebook, YouTube, Instagram, Twitter, every day the general public / commoner is likely to get the fame and with fame comes huge fan following. The companies used Actors/Actresses to pitch their products but these days the companies are using the fan base of influencers by approaching with huge deals. Commercial Advertisements are different, but the product placement technique is way more dangerous than the surrogate advertising, these influencers when take-up these deals, they are not advised for any kind of commercial advertising, but they are told to use these branded products in their social media handles.

4. Events/Sponsorship/Branding:

There isn’t a single person who is unaware of IPL- Indian Premiere League, where different teams from different parts of country a play T-20 Cricket match for this money/sponsorship is a vital aspect to even begin. Now here comes those companies with huge contracts for endorsing their brand names on the teams and players. Similar had happened with well-known Liquor Brand Royal Challenge, a Delhi-based NGO (Non-Government Organization) HRIDAY complained against the team to Information and Broadcasting Ministry. The complaint was that the team openly promotes the alcohol by endorsing the Brand name on the jerseys of players and Umpires. But the response to this was that the team’s name was Royal Challengers. Like these there many cases which have been seen violating governmental regulations a kind of by-passing by finding a loophole in the system and exploiting for their personal gains. The Need for stronger laws is going the only way to end these kinds of loopholes. 

5. Red bull gives you wings:

Guess what, a person named Benjamin Carethers, US citizen sued the company for false advertising of Red bull giving wings to those who consume it, this had happened back in 2013. Causing 13-million-dollar defamation case on company had to change its tagline by just adding more 3 i’s to the tagline; “Red bull gives you wiiings”. This is how companies evade the regulations.

What are the Laws on Surrogate advertisements?

First of all, there is no Stringent laws which prevents Surrogate Advertising there are guidelines which directs the advertisers/companies/regulatory bodies on proper broadcasting. Advertising Standard Council of India (ASCI) is a voluntary self-regulatory organization of the advertising industry in India., which monitors advertising across media platforms and addresses complaints from consumers and stakeholders. How ever there are no proper laws regarding prohibition on Surrogate Advertisements, but some statutes like the Cable Television Networks (Regulation) Act-1995 of Rule 7(2)(viii)(a) provides “No Advertisements shall be permitted which promotes directly or indirectly production, sale or consumption of cigarettes, tobacco products, wine, liquor, alcohol or other intoxicants”. Food Safety and Standards (Prohibition and Restrictions on sales) Regulations-2011. The bodies which monitor the advertising industry are like Central Board of Film Certification (CBFC), Department of Consumer Affairs, Ministry of Information and Broadcasting (MIB), Trademark Authority. Central Consumer Protection Authority has clearly defined the Surrogate Advertisements in Guidelines for prevention of Misleading advertisements and Endorsements for Misleading advertisements-2022, Section-2(h); “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”. Despite these guidelines the market for surrogate Advertisements is growing rapidly through the loopholes.

RESEARCH METHODOLOGY:

This Research paper is prepared by using analytical method to appreciate the existing literature resources, primarily which includes sources like legislations, regulatory-guidelines, precedents, case studies and secondary sources like journals, new article, research papers and books.

REVIEW OF LITERATURE:

1. Surrogate Advertising in India

This research study itself proves that how weak our legislations are in the subject-matter of Surrogate Advertisements and suppresses the issue of consumption of banned products like Liquor/Tobacoo through this kind of branding technique. This research paper was based on empirical evidence observed by the author.

2.  Surrogate Advertisements: India’s response towards International Regulations

The author has done an outstanding work in this article by compiling information available on International Surrogate Advertisement and Indian Surrogate Advertisement markets. Differentiating how the Surrogate advertisements impact on society both internationally and on national level. This Article also supresses that existing laws are outdated in India; soon new legislations must be proposed by legislatures. 

3. Surrogate Advertisements and its impact.

In this article, authors point out the issue related to Surrogate advertising techniques being unethical and demoralising which should be objected and accountable. The effortless works and reports and studies submitted by the authors are unimaginable, the data collected on Advertising industry touching the mark of annual turnover of trillion-dollar market. 

METHOD:

Surrogate Advertisements of many plain pan masalas or products with names similar to tobacco products had been observed on television, as well as in print media. Two major television new channel of India were observed to be showing large number of advertisements of pan masalas or other products bearing similar names as the gutka/chewing tobacco/bidi products.

The YouTube (digital platform) had observed surrogate advertisements of veemal (pan masala), significantly advertise of around 40 to 50 seconds. Even the print media like Deccan Chronicles was also seen promoting an advertisement of RMD (pan masala) even though there was no direct advertisement of the product was mentioned but the logo and the colour of the sachet presented was very similar and resembles the actual tobacco sachet which is known to every addictive consumer in the market .

 Various research papers, studies and reports have been observed and then considered to be penned down and made this content available to the public through various Publications and Journals on this subject. The sole purpose of researching and publishing journals is to make awareness among people and governments. The reason why I have chosen this method is that I felt there is an enormous data available in form of news article, research papers and journals on internet itself which have been peer reviewed by the experts in the field of researching and have genuinely put it down on the papers. The study conducted on human Behavorial, and addictiveness of the tobacco/ alcohol has proven scientifically and with these studies and reports help we can understand much better than previous decades.

SUGGESTIONS:

The Laws for prohibition of Surrogate Advertisements should laid down in such a way that wherever the substitute products or the products which have been branded have the names of liquor/tobacco in nature should be banned. Zero tolerance policy should be adopted in this matter, infact rules/guidelines won’t matter unless a statutory body had formed under a statute, governments play a crucial role in making any laws  

CONCLUSION:

The Companies successfully run their Surrogate advertisements like they want to get their message across, the people are mostly aware about the concept of surrogate advertisement and there are not much differences in the awareness levels of Females and Males, while a larger number of females do not know about the concept of Surrogate advertisements, their perception regarding these advertisements is not much different from their male counterpart. Most of the people respond exactly in a way how these companies want them to, while there are still many people who are not aware of surrogate advertisements and many people even after being aware are not able to understand the product and ulterior motive of the company.

These Surrogate Advertisements are not only misleading but also false and dishonest in many cases. This Branding Technique is used by the corporate mafia only because the legislatures perform a half-hearted job in controlling this menace. If the legislature and the government really want to get a good grip on this menace it should implement its intentions in a more spirited manner and it should be done without the customary loopholes. If the government really wants to tackle this problem, it should either ban the products completely and remove it from the market or make some provisions which makes it practically impossible for the companies to use or even invent these kind of branding techniques and make a mockery of the legislation. 

With the surrogate advertising so vast spread, the time has passed where sterile warnings and penalties are being imposed, now is the time to tackle the problem head-on by making stringent laws in order impose complete ban. Public awareness is also a vital factor, by issuing and coming up with innovative ideas to make known these kinds of brand extensions method to general public. Arming the ASCI with a Statutory power and advising to monitor a close eye on the violators. Establishing a mechanism coordinating on national and international level of Advertising markets.

Submitted by

C. Mohd. Zohaib Taimoor,

Dr. Br. Ambedkar Law College.