Opinion: The Conundrum of Alcohol Surrogate Advertising

In the intricate realm of advertising, particularly concerning the alcohol industry, the distinction between permissible brand extensions and surreptitious surrogate advertisements can often perplex even the most astute observers. This puzzle takes center stage, especially during major sporting events like cricket matches, when alcohol brands seemingly undergo a transformation, disguising themselves as innocuous products on our screens. The collective cry of "Surrogate!" rises from viewers, igniting a compelling debate. Are these surrogate ads, or do they operate within the confines of the law?

The answer to this riddle is far from straightforward and resides in the complex legal framework that governs alcohol advertising in India.

Navigating the Legal Maze:

The first layer of complexity in this puzzle arises from the fragmented legal landscape that oversees alcohol advertising. Surprisingly, India lacks a comprehensive centralized law to regulate alcohol advertising, instead deferring to individual State Excise Laws. Within the central regulations, the Central Consumer Protection Authority (CCPA) guidelines issued in June 2022 point to a paradox that tends to confuse many people. While the guidelines state that "no surrogate advertisement or indirect advertisement shall be made for goods or services whose advertising is otherwise prohibited or restricted by law," they introduce a caveat that says that “the mere use of a brand name or compan name, which may also be applied to goods, products, or services whose advertising is prohibited or restricted, shall not be considered a surrogate advertisement." In simpler terms, alcohol brands can legitimately diversify into unrelated categories, such as water, soda, cassettes, glassware, or even airlines, and promote these products, provided they refrain from alluding to their alcoholic origins.

Another layer of regulation is found in The Advertising Code embedded in the Cable TV Network (Regulation) Act, governing television advertising. This code unequivocally bans both direct and surrogate alcohol advertising, yet permits brand extensions under specific conditions. The Central Board of Film Certification (CBFC) is entrusted with pre-clearing all TV ads based on qualifyin criteria jointly developed by them, the Ministry of Information and Broadcasting (MIB), and the Advertising Standards Council of India (ASCI) to distinguish between brand extensions and surrogate advertisements.

These criteria are explicit and stem from two key principles:

1. The brand extension advertisement must refrain from implying or alluding to the alcohol category.

2. The brand extension must genuinely operate as a business and not as a facade, substantiating its credibility through substantial sales, distribution, or investment.

Ads that meet these criteria qualify as genuine brand extensions, while those that do not clear these hurdles are labelled as surrogates and could face prohibition under an array of laws. While the CBFC pre-clears TV ads, ASCI undertakes the task of scrutinizing advertisements appearing on other media In the last three years, ASCI has looked into 40 advertisements that were in potential violation of ASCI’s brand extension guidelines across mediums.

The surge in digital advertising and the borderless nature of the internet have blurred the jurisdiction of State Excise Laws, making it increasingly challenging to regulate ads that overtly or covertly promote liquor consumption. In 2021, ASCI identified and reported over 250 direct liquor advertisements to various ministries and state excise departments for further action. The absence of a nationally applicable digital code for online ads associated with potentially harmful products compounds this regulatory complexity.

Greater clarity would ensure that the interests of brands, platforms, and viewers are well balanced.

Proactive Surveillance:

To unravel this web of intricate regulations and promote responsible advertising within the alcohol industry, proactive measures are imperative. ASCI has assumed a vigilant stance, particularly during high viewership events such as cricket matches featuring the Indian cricket team. In the first two weeks monitoring the ICC Cricket World Cup 2023, ASCI has already pinpointed eight advertisements requiring further investigation to determine their status as surrogate ads or genuine brand extensions. Daily advertising feeds undergo meticulous scrutiny to identify potential breaches of the ASCI Code.

The Underlying Rationale:

The alcohol industry operates within a unique environment where the production and sale of alcoholic beverages are widely permitted across the country. However, stringent advertising restrictions stem from legitimate concerns related to public health and safety, underage drinking, and excessive consumption. Promoting alcohol consumption to underage individuals poses a significant risk, potentially leading to early initiation and abuse. Nations worldwide enforce varying degrees of limitations on alcohol advertising, reflecting their priorities and cultural attitudes towards liquor. Some countries impose comprehensive bans on all forms of alcohol advertising, while others place specific constraints on when and where such advertising may occur. In specific regions, ads necessitate pre-approval by self-regulatory bodies before they can be broadcast.

A need for rationalization and harmonization:

In the labyrinthine world of alcohol advertising, deciphering the fine line between brand extensions and surrogate advertisements requires meticulous scrutiny rather than a casual conclusion. The multitude of legal frameworks, both at the state and central levels in India, amplifies the complexity. While advertising regulations strive to strike a balance between the interests of the alcohol industry and the imperatives of public health and safety, effective enforcement and interpretation remain formidable challenges. Harmonizing the various laws and voluntary regulations and the creation of a strong central framework could provide some reason to cheer.

This article is penned by Manisha Kapoor, CEO and Secretary General, ASCI & is a part of a monthly article series for raising awareness.

Disclaimer: The article features the opinion of the author and does not necessarily reflect the stance of the publication.