Surrogate advertising, a dance of shadows within the marketing arena, is a sophisticated pas de deux between ingenuity and regulation. Herein lies the tale of brands that reach beyond their tangible offerings, shaping cultural narratives and embedding themselves into the fabric of everyday life. The premise of this narrative is not one of mere advertising, but a complex ballet of brand endurance under the stern gaze of legal restrictions.
At the core of surrogate advertising is the indomitable spirit of a brand that extends its reach through the promotion of alternate products, circumnavigating the legal prohibitions against direct advertising of alcohol and tobacco. This practice is steeped in creativity and controversy alike, as it employs the art of suggestion to maintain consumer awareness of a primary product indirectly.
This strategic marketing ploy exploits the robust identity of a brand by advertising other permissible products or sponsoring events that bear the brand’s name, thereby keeping the primary, often restricted product, in the peripheral vision of the consumer. Such artful indirection ensures that the main brand remains relevant and resonant without breaching advertising laws. For instance, an alcohol brand might venture into fashion apparel or purified water, leveraging its logo and brand equity to maintain its presence in the consumer’s psyche.
This dance of discretion has been particularly choreographed within the Indian subcontinent, where strict legislative measures have been in place since the Cable Television Networks (Regulation) Act of 1995, which prohibited direct advertising of certain products. The narrative further thickened with the Consumer Protection Act of 2019, which introduced stringent provisions against misleading advertising and took a more robust stance against surrogate advertising.
The efficacy of these legislative efforts has seen a spectrum of outcomes. Judicial recognition of surrogate advertising came to the fore when the Delhi High Court identified the surrogate nature of a club soda that shared its brand with a whiskey label. On the other hand, the Supreme Court of India exhibited a more nuanced approach by not intervening in the use of a name for a cricket team in the Indian Premier League that resonated with a whiskey brand, highlighting the complexities of the legal interpretation surrounding this subject.
The role of self-regulation has also been pivotal, with the Advertising Standards Council of India (ASCI) setting guidelines to differentiate between legitimate brand extension and surreptitious surrogate advertising. These guidelines scrutinize the volume of the surrogate product’s genuine market presence and look for implicit cues in the advertising that may point to the restricted product.
Despite robust regulatory frameworks, surrogate advertising thrived until the latest set of guidelines was issued by the Central Consumer Protection Authority in June 2022. These guidelines aimed to strike at the root of surrogate advertisements in India, curbing the subliminal promotion of alcohol and tobacco.
The continuing saga of surrogate advertising unfolds within a dynamic interplay of legal frameworks and market strategies. It exemplifies the lengths to which marketers go to navigate the maze of advertising laws while simultaneously igniting debates on the ethical implications of such practices. Detractors argue that, although surrogate advertising may not overtly contravene the law, it perpetuates the allure of harmful substances, potentially influencing young minds and subverting the public health agenda. The criticism lies in the notion that such advertising deftly sidesteps the essence of legal statutes designed to protect public welfare.
Conversely, from an economic standpoint, surrogate advertising represents the resilience and adaptability of companies faced with regulatory adversity. It enables brands, especially those barred from advertising their primary products, to sustain visibility and engage with their audience. This not only bolsters the brand but also stimulates economic activity within the advertising industry and its related sectors.
As the vigilance of regulatory bodies intensifies globally, with a keen eye on India, the reins on surrogate advertising are tightening. The dynamic between marketers and regulators resembles a perpetual dance – one that intricately weaves creativity with accountability. Striking a delicate balance, this dance endeavours to align the liberties of commerce with the imperative of public health protection.
The chronicle of surrogate advertising extends beyond a narrative of marketing tactics. It is an impetus for continual dialogue on the ethical and societal impacts of advertising. It mirrors the broader societal challenge of harmonizing economic liberty with the welfare of the community. As market dynamics and regulatory oversight progress, so too will the techniques that companies employ to keep their brands pulsating within the public conscience.
In its essence, surrogate advertising is a compelling chapter in the broader discourse on the interrelations among advertising, ethics, and regulatory control. It is a testament to the ever-evolving and sometimes contentious interplay between economic interests and societal health. As we journey forward, the phenomenon of surrogate advertising stands as a touchstone for debate, an evolving issue that will persistently engage and provoke thought among marketers, regulators, and society at large.
(The author is an advocate of Gauhati High Court. All views and opinions expressed in the article are the author's own)