Surrogate Advertising

Surrogate advertising is the indirect promotion of a product whose advertising is prohibited or restricted by law. It presents itself as an advertisement for a lawful product or service, but its branding, imagery or overall design is intended to preserve recall and demand for the prohibited-product brand.

How surrogate promotion works

A surrogate advertisement uses a permissible product, service or activity as a vehicle for promoting the identity of a restricted product. The legal inquiry therefore concerns the advertisement's substance and effect, not merely the product named in it.

• A common brand name, logo, colour scheme or slogan can connect the advertisement with the restricted product.
• The ostensibly advertised product may function mainly as a cover for maintaining the prohibited brand's visibility.
• The Central Consumer Protection Authority Guidelines, 2022 prohibit both surrogate and indirect advertisements for goods or services whose advertising is otherwise prohibited or restricted.

Regulatory framework

The regulation operates through consumer-protection law and sector-specific restrictions. The Central Consumer Protection Authority, established under the Consumer Protection Act, 2019, can act against advertisements that violate its guidelines.

• Rule 7 of the Cable Television Networks Rules, 1994 restricts advertisements that directly or indirectly promote cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants on cable television.
• Section 5 of the Cigarettes and Other Tobacco Products Act, 2003 prohibits advertisement of cigarettes and other tobacco products, subject to limited statutory exceptions.
• These controls operate alongside restrictions applicable to particular products and advertising media.

Genuine brand extension and surrogate advertising

The mere use of a brand name or company name for another lawful product does not automatically make an advertisement surrogate. Under the 2022 Guidelines, such use is permissible only where the advertisement is not otherwise objectionable and genuinely promotes the lawful product rather than indirectly promoting the restricted one.

• Regulators may examine the advertisement's visuals, language, brand associations and connection with the product supposedly advertised.
• A genuine brand extension must stand on its own as promotion of the unrestricted product.