My email inbox and WhatsApp were inundated with congratulatory messages all weekend as friends, clients and associates wrote to me to say that my “crusade” against surrogate advertising had finally succeeded. . The Central Consumer Protection Authority Government of India on 9th June 2022 issued Notification F. No. J-25/4/2020- CCPA (Reg) under Section 18 of the Consumer Protection Act 2019 (35 of 2019) and has published guidelines for the prevention of false or misleading advertisements.
Specifically, in the definitions, 2.(h) focuses on “surrogate advertising”, which “means advertising for goods, products or services, the advertising of which is otherwise prohibited or restricted by law, circumventing this prohibition or restriction and presenting it as advertising for other goods, products or services, the advertising of which is not prohibited or restricted by law”.
In the notification, point 6 says precisely this about the ban on alternative advertising:
No substitute advertising or indirect advertising shall be made for goods or services the advertising of which is otherwise prohibited or restricted by law, circumventing such prohibition or restriction and presenting it as advertising for other goods or services, the advertising is not prohibited or restricted. restricted by law.
An advertisement will be considered a substitute advertisement or an indirect advertisement, if – (a) such advertisement directly or indirectly states or suggests to consumers that it is an advertisement for the goods, products or services the advertisement of which is prohibited or restricted by law; (b) such advertisement uses a brand name, logo, colour, layout and presentation associated with such goods, products or services the advertising of which is prohibited or restricted: provided that the mere use of a name trademark or company name that may also be applied to goods, products or services the advertising of which is prohibited or restricted shall not be considered substitute advertising or indirect advertising, if such advertising is not otherwise objectionable in accordance with the provisions set out in these guidelines.
My war on surrogate advertising began in 2018 when I wrote an open letter in Country to the then Chairperson, Advertising Standards Council of India (ASCI), Mrs. Abati Sankaranarayan, asking if she was sleeping? ! I wrote to him saying: “The ongoing Indian Premier League (IPL) tournament has more booze ads than I can count. There are adverts for Seagram’s Royal Stag, Royal Challenge, Signature, Black & White and Chivas. I may have missed a few. Abanti-ji, why do you and ASCI turn a blind eye to this charade of substitute advertisements that openly sell alcohol, and nothing else? Black & White advertises something called “Gettogethers”. Abanti-ji, what exactly do you think Black & White sells? Royal Challenge has Indian cricket captain Virat Kohli peddling a ‘sports drink’. I tried to buy the drink at my local grocer. He was unavailable. Tried the local supermarket. He was unavailable. I tried the Internet. He was unavailable. Abanti-ji, can you help me buy a bottle of Royal Challenge “sports drink”, please? The signature consists of “selling” (or simply promoting) the spirit (pun intended) of “Start-ups”. Ask yourself why? Abanti-ji, would you know if Signature is now the newest venture capitalist in town? Royal Stag simply sells music CDs. Just like Chivas Regal. It must be a very lucrative business for them to afford IPL TV spots at Rs. 9.5 lakhs per 10 seconds. Abanti-ji would you have an idea of the number of music CDs sold by Royal Stag or Chivas?
My open letter made a lot of noise. In fact a tumult.
My daughter, Carol Goyal, a lawyer by training, then attempted to file a complaint against various alternative advertisements with ASCI. She just walked around and nothing really came of her efforts. His appointment with ASCI is detailed in a long article by Country as of July 11, 2018. All email exchanges with ASCI were reproduced and documented in the article but an inert and stubborn ASCI refused to act.
My battle with ASCI simmered over the next two years when I again took cudgels with the arrival of publicity man Subhash Kamath as the new president and wrote to him in Country on October 12, 2020 saying that I had pointed out to Abati Sankaranarayan that, “The Cable Television Networks (Regulations) Act 1995, Rule 7(2)(viii) clearly prohibits the direct or indirect promotion and advertising of cigarettes, tobacco products, wine, liquor, alcohol or other intoxicants and where advertising does not use colors and special layouts or presentations associated with prohibited products. In all the advertisements mentioned above (already mentioned in this article), the exact logos and styles of the alcohol brands are used as is. There is no attempt to hide. Or pretend. Or even “pass”. Brand graphics of alcohol brands are used in toto by them in so-called substitutes. But the reality is that surrogates don’t actually exist.
I then explained to President Kamath: “In the current IPL, there are also a lot of alcohol ads… Royal Stag (selling Mark of Purity), Sterling Reserve (packaged water), Chivas (music CD), Blenders Pride (music CD) and more… there’s also SNJ 10000 (beer) and British Empire (beer) logos on the team shirts. I won’t go into the claims of each of the brands, but I checked Chivas music CDs in stores in Chandigarh, Delhi, Jaipur, Bangalore and Mumbai, but couldn’t find any on sale. I went online to check availability. Flipkart’s website had a list of 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”..”
Department of Consumer Affairs Secretary Rohit Kumar Singh, IAS, has done an outstanding job in presenting this new CCPA notification. It could have done well to double reiterate the existing standards that: in-store availability must be at least 10% of that of the leading brand in the category against which the product competes, or sales must exceed Rs 5 crore per annum or Rs 1 crore per annum in each state in which it is distributed. It must have a valid certificate from an independent body for this turnover and distribution data. Advertising for these brand extensions may not feature what is prohibited by law or prohibited products. In addition, all advertising must be accompanied by a valid CBFC certificate.
A brief clarification has, you may have noticed, been incorporated into the provision that a mark used for “prohibited” goods/services could be used for other goods as long as it does not otherwise infringe the guidelines. This, in our view, is slightly vague and may need to be read together with Rule 7(2)(viii) of the Cable Television Network Rules, 1994, which sets out under what circumstances use of the same mark as used on “prohibited” networks goods may be advertised in the context of other permitted goods/services. I think that’s fair.
Overall, my “crusade” over the past four years on alternative advertising has been pretty lonely – I guess all crusades, by definition, are lonely. But I’ve had friends, associates, and colleagues in advertising itself who have accused me of moralistic biases against alcohol because I’m a sober myself. But this 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 circumvented. Over the past few years, alcohol substitutes have done just that – and blatantly so. ASCI was only a mute spectator. Finally, it is good that the law has been reformulated and reiterated so that there is no ambiguity. Well done, Rohit Kumar Singh! You are the true embodiment of a good bureaucrat.
Dr. Sandeep Goyal has worked in advertising and media for over 38 years now. He is currently managing director of Rediffusion.