Surrogate ads: Who’ll bell the cat?

Guest Column: Strategic Marketing & Media Consultant Chintamani Rao opines that ASCI's ban on surrogate ads for liquor brands is welcome, but the only effective solution is legislation

e4m by Chintamani Rao
Updated: Feb 3, 2021 5:24 PM
Chintamani Rao

ASCI’s move to proscribe “surrogate ads” of 12 liquor companies is big in its scope and scale. Of course, the IPL is over and both the advertisers and the broadcaster have reaped the benefits of the ads, but it is at least a public expression of disapproval and just may have some effect on future advertising of this kind. 

The grounds for proscription were that the featured products did not appear to be genuine brand extensions, clearly because it could not be established that they actually exist and that one could buy them. That reminds me of when, in the late 1980s, McDowell was hauled up by the then Monopolies and Restrictive Trade Practices Commission for its ads for Diplomat ice cube bags, very obviously a surrogate for its Diplomat whisky. Vijay Mallya, the young Chairman of the group, appeared in person. When it was pointed out that the expenditure on advertising was, suspiciously, far greater than the sales turnover of the advertised product, which was not even readily available, Mallya did not defend or deny that. He said, “I suppose I’m a bad businessman, but that is not against the law,” or words to that effect. He’s always had chutzpah. 

The phenomenon of surrogate ads goes back to the early-mid 1980s when a rash of liquor companies and brands entered the Indian market. It was all in oblique references, visual and verbal, expectedly playing on words like ‘spirit’. Amid all this came a print ad for Old Monk, its central visual the distinctive bottle, complete with the label, partially buried in the sand. The brand name was clearly visible, and only the words ‘XXX Rum’ were just about covered with sand. In shock and horror we, as his advertising agency, took the ad to Mallya and suggested he advise his counterparts in the liquor industry to exercise discretion or the government would clamp down. 

Far from being concerned, Mallya was delighted. He said he hoped others would follow Old Monk’s lead and become increasingly bold and blatant, and force the government’s hand. If there were no advertising, he pointed out, new entrants would find it hard and legacy brands and companies like his would have the advantage. To his credit, he did not urge us to push his advertising in that direction. 

It was not all that long ago that advertising of liquor on TV was actually allowed. (On TV, but not in print. Don't ask me why.) Anyone over 40 should remember the iconic Bacardi commercial, with the jingle that went, “Nothing is as nice as finding paradise and sipping on Bacardi rum.” Yes, it said rum, not juice or mineral water or soda. There was a watershed time – 10 pm, if I remember right – after which liquor ads were permitted. 

But we are workaround experts: give us a rule and we’ll find a way to circumvent it. Liquor ads began to appear at all times of the evening. When asked, broadcasters and agencies explained them as bonus spots. (And of course, viewers can tell bonus spots from paid spots, and don't get influenced by them.) The actual schedule of paid spots was all for post-10 pm, you see, and bonus spots are telecast at any time according to availability and the broadcaster’s convenience. So either the broadcasters were filling early evening inventory with bonus spots, or in a wink-wink-nudge-nudge arrangement, liquor ads were carried in prime time but not shown on the record as having been booked and scheduled as such. Of course, the government clamped down and the party came to an end, and it was back to surrogate advertising. 

The Indian Broadcasting Foundation (IBF) then took it upon itself to exercise some level of supervision, and member broadcasters were told to carry only ads approved by it. Commercials had to be submitted to the IBF for approval, along with samples of the products being advertised, to establish that the products did in fact exist. The conference room in IBF’s basement office in South Extension was littered with golf bags, juices, mineral water, CDs and what-have-you. This brave attempt fell by the wayside at some point, and it was back to business as usual. 

There is, strangely, no law directly governing broadcasters and broadcasting content in India. The only law is the Cable Television Networks Regulation Act of 1995, which actually seeks to regulate distribution networks, rather than broadcasters. The rest is a raft of policies and guidelines, not laws. Specifically, on content the Cable TV Act requires compliance with a Programme Code and an Advertisement Code and, essentially, places that onus on distribution platform operators (DPOs). 

Sometime around 2006-07, as a result of a cross-industry initiative, ASCI’s comprehensive Code for Self-Regulation of Advertising in India was incorporated into the Advertisement Code, which since then provides that, “No advertisement which violates the Code for self-regulation in advertising, as adopted by the Advertising Standards Council of India (ASCI), Mumbai, for public exhibition in India, from time to time, shall be carried in the cable service.” So it is only in this oblique manner – compliance with the ASCI Code is required by the Advertisement Code, compliance with which is required by the Cable TV Act, which governs DPOs, not broadcasters – that there is any measure of regulation of advertising. But a code is not a law: the difference is that observance of a code depends on intent. Wilful disregard of the code is not illegal and suits everyone in the value chain including the broadcaster, who is beyond the scope of the only law governing broadcasting content. 

As of 2012, the ASCI Code has a specific section on brand extensions, categorically mentioning liquor and tobacco as examples and defining criteria to assess the legitimacy of a purported brand extension. It is on these criteria that the recent ruling was based. Though the Cable TV Act asks, in its own complicated way, for compliance with the ASCI Code, it took ASCI itself to actually act on it. 

Welcome as ASCI’s action is, it is – and can only be – ad hoc. The only real, effective solution is legislation, and there is one uncomplicated way: a law, or an amendment to an existing act (I am no expert) that bans advertising of anything – product, service, or event – that has a name or trademark which has been registered and approved for liquor or a tobacco product anywhere in India. But that will affect three powerful sectors: alcohol, tobacco and the media – two rich, the third influential. Which government will bell that cat?

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