What counts as a surrogate ad
The 2022 CCPA guidelines say a surrogate ad is an ad for goods that the law bans or restricts. It gets around the ban. It presents itself as an ad for other goods that are not restricted.
The guidelines call an ad surrogate if it suggests that it promotes the restricted product. The hint can be direct or indirect. They also look at the brand name, logo, colour and layout. Any link to the restricted product counts.
A proviso adds a limit. A brand or company name may also belong to a restricted product. Using it does not, by itself, make an ad surrogate. The ad still has to be otherwise acceptable.
The ASCI Code adds two questions for brand extensions. First, is the other product really made and sold, in amounts that fit the ad? Second, does the ad give cues that link it to the restricted product?
What the cable TV rules say
The Advertising Code under the Cable Television Networks Rules, 1994 bars ads for cigarettes and tobacco. This includes indirect ads. It bars them for wine, alcohol, liquor and other intoxicants too. This is Rule 7(2)(viii)(A), as the Ministry of Information and Broadcasting reads it.
A 2009 amendment allows a genuine brand extension, with conditions. The ad must show only the other product. It must not refer to the restricted one, directly or indirectly. It must avoid colours, layouts and situations tied to it. The advertiser files a copy with a chartered accountant's certificate. The Central Board of Film Certification then previews and certifies each ad before it airs.
In a September 2020 advisory, the Ministry told channels to follow these rules strictly. It has said it acts against channels when it finds a breach.
A made-up example
Say a brand called Royal Peak sells whisky. It also sells a soda under the same name. Royal Peak wants to advertise the soda on TV.
- If the ad shows the soda, with no whisky bottle, colours or party scenes, it is likelier to be genuine.
- If the ad shows a bottle that looks like the whisky, the cues may point to the whisky. The same goes for the look, music and setting of the whisky ads. So does a name shown larger than the soda.
- If the soda is hardly sold anywhere, the scale of the ad may raise questions.
Both brand and product are made up. Real cases turn on detail, so ask a lawyer.
The alcohol section: what to know
- Cable TV: the code bars direct and indirect alcohol advertising, with the brand extension route above.
- Other media: the cable rules do not expressly cover social media, according to one commentary. That does not make anything allowed. Other laws, platform rules and the ASCI Code can still apply.
- States: alcohol is regulated by each state's excise rules, and they differ. Check the rules of every state where you advertise.
- Tobacco: a separate law governs tobacco advertising. Ask a lawyer.
- Events and sponsorships: the same cue test tends to apply, so check the look, name and message.
What happens if an ad breaks the rules
The Ministry says it acts against TV channels when it finds a breach. It does not act against advertisers or manufacturers. The CCPA, set up under the Consumer Protection Act, 2019, can act against misleading ads. The Act lets it impose a penalty on a manufacturer or endorser. It is up to ₹10 lakh, and up to ₹50 lakh for a later breach (section 21). Confirm the current text.
ASCI can also ask for an ad to be changed or withdrawn.
A checklist before you run an ad
- Is the product real, on sale and made in sensible quantities?
- Does the ad show the product itself, and not the restricted one?
- Does it avoid the colours, layout, logo, music, people and settings tied to the restricted product?
- Does the brand name sell the product, and not link to the restricted one?
- Has a lawyer cleared it for each medium and state?
- Have you kept records: sales, distribution and approvals?
If you plan an ad in a regulated space, share this list with your lawyer and your agency at the start.
