In the recent legal spotlight, the Bollywood trio of Shah Rukh Khan, Akshay Kumar, and Ajay Devgn have come under scrutiny for their involvement in Vimal ads. But here's the twist – this isn't a novel tale in the world of surrogate advertising; it's an age-old script with a fresh set of characters. In the past, we have seen Akshay Kumar apologising for a Tobacco ad and Amitabh Bachchan not only withdrawing from an ad but also filing a case against the tobacco brand.

But what is Surrogate advertising? Let's break it down: Surrogate advertising is like a substitute teacher stepping in when the regular one can't make it. It's a clever trick used by brands when they can't directly advertise certain products on TV or in the papers because of rules set by the Advertising Standards Council of India (ASCI) or other laws like the Cigarette and Other Tobacco Products Act, 2003 that ban direct and indirect advertisements of tobacco products in India.

So, instead of showing the banned product, they bring in another one, kind of like a disguise, all under the same brand name. It's like playing hide and seek with ads. Frequently, we observe alcohol companies promoting mineral water, and tobacco products masquerading as breath fresheners. Liquor brands seamlessly blend into the music scene, utilizing CDs, short films, and grand music festivals to extend their brand reach. Such a marketing strategy helps brands keep their primary product in the peripheral vision of the consumer.

The recent legal notice to Bollywood superstars has led to a debate once again over the use of surrogate ads by companies and celebs to promote unhealthy products by violating the law.

Are Celebrities Liable?

People often worship the ground celebrities walk on and try to imitate everything they are seen doing or recommending in the public eye. The question arises: Are celebrities accountable for the products they endorse in surrogate advertising?

Angel Investor and Business Strategist Lloyd Mathias emphasizes the substantial responsibility borne by influencers and celebrities due to their pervasive influence on the masses. He emphasizes that celebrities, especially big stars, should exercise caution in their endorsements. He chuckles, 'I am only surprised at the stature of the big stars doing this. This class of celebrities doesn't need to resort to these kinds of advertising; they have other revered brands to promote.'"

While celebrities have an enormous influence on the common people, there has been an overall shift in consumer awareness and a growing reluctance to blindly follow influencer endorsements. Brand Consultant and Founder of RGC ConsuMark, Ruchika Gupta chimes in “Consumers are becoming more discerning and vocal, and influencers, being aware of their significant impact, should indeed make informed decisions. In today's socially connected world, transparency in endorsement is vital. It not only builds trust with their audience but also protects their brand image.”

Aalaap Desai, Founder and CCO, TGTHR provides a slightly different perspective, stating that actors are hired for a job and that disassociation is not the solution. He shares “From their perspective, they are doing their job, but in India, we worship actors. If they enjoy the fame, they should accept the responsibility, too. If they lay down the rules about the kind of content they will endorse in case of surrogate advertising, then advertising will be created according to it. Having the celebrity there is more important than the kind of content produced, so it should control the endorsement once the ground rules are set.”

Vani Gupta Dandia, Founder of CherryPeachPlum Growth Partners sheds light on the dual nature of the law surrounding celebrity endorsements in this category and says “The problem with celebrity endorsement in this category is that the law itself is two-faced. Celebrities look at such endorsements as commercial engagements - if the law allows advertising for glasses, water CDs, etc then why should a celebrity looking to encash on their famedom not take advantage?" She acknowledges the celebrity perspective but urges caution: "Yes, celebrities must bear in mind that their own image is at stake when they partner with insidious brands like pan masala etc in the name of elaichi or bottled water. Consumers are more intelligent than we give them credit for." 

However, for Ambi Parameswaran, Founder of Brand-Building.com, the onus lies upon the brand and it is ridiculous to blame the celebrities endorsing legally permitted products because we hold them to a higher standard and expect moral responsibility out of them. He adds, “The bigger problem is a perfectly legal loophole - I can make Pan Masala or whiskey and I'm allowed to use the same brand name for selling a mouth freshener or whiskey glasses or music CDs and spend a disproportionate amount of money on advertising. No one is asking questions about that. Celebrity endorsement is secondary. They have the right to endorse any product that gives them money, it may one day erode their brand value but it is their problem.”

Where Should Brands Draw a Line?

The recurring controversies surrounding surrogate advertising prompt questions about where brands should draw the line between legitimate brand extensions and the promotion of products not allowed direct advertising.

Mathias suggests that responsible brands should carefully influence consumers within permissible spaces like bars or events that could be genuine extensions, avoiding the exploitation of surrogate advertising loopholes. "Using a celebrity to convey to a lot of people is always something that brands should be far more sensitive about”, says Mathias.

Gupta supports the need for brands to set clear internal guidelines, distinguishing permissible brand extensions from products restricted from direct advertising. Gupta tells Pitch, “However, in cases of ambiguity or potential backlash, prioritizing consumer trust and regulatory compliance over immediate gains is crucial. Basically - keep consumers belief in the brand at the core and then decide.”

Desai offers a perspective that underscores the need for clarity and responsibility in advertising. He states, "While brands need advertising to survive, it doesn’t mean surrogate advertising should always be playing in the grey areas." Desai cautions against forcing agencies and actors into ambiguous spaces, emphasizing that such practices erode trust with the masses. He asserts, "The approach of finding a loophole on their end needs to be abandoned," conveying the necessity for ethical advertising practices. He believes that if brands abstain from seeking loopholes, the need for guidelines becomes obsolete, providing a clear path toward responsible advertising.

Balancing Act: Maximizing Visibility with Ethical Standards

In the intricate world of surrogate advertising, the challenge is apparent: Can brands truly strike a balance between enhancing their visibility and adhering to unwavering ethical standards?

Parameswaran is unequivocal in his stance, asserting, "You cannot. If tobacco products are not to be advertised, you cannot advertise." He emphasizes the fundamental question of whether these products or brands should even be permitted to advertise. Proposing a stringent regulation, he suggests, "There can be a regulation that says brands that sell tobacco, cigarettes, or liquors cannot be selling products with the same name in any other category except as an endorser where this brand cannot be more than 10% the size of the sub-brand." Despite the potential for it to seem stringent, Parameswaran underscores the necessity of implementing such rules.

Transparent communication is paramount, according to Gupta as she highlights: “Clear messaging and disclaimers ensure transparency to consumers”' Gupta stresses the vital need for collaboration among influencers, brands, and regulatory bodies, asserting, “Collaboration between influencers, brands, and regulatory bodies is vital for ethical advertising practices.” For Gupta, the guiding force through the complexities of surrogate advertising lies in upholding transparency, authenticity, and ethical standards. She states, 'There is no other way from my POV!'"

Dandia applauds the marketing that Johnnie Walker indulges in, in this particular category of products, and suggests brands take a few notes from them. Dandia points out the formidable challenge faced by marketing teams in the alcohol and similar categories, emphasizing the need to craft distinctive assets that transcend the product, all while promoting the brand responsibly. She adds “Putting all the onus on the company in itself is unfair. The truth is that the government pretends to do good when in fact they are salivating over the truckloads of money these categories bring in. So realistically.. the surrogacy and hypocrisy start there.”

Desai contends that actors, embodying what the masses aspire to be, must adhere to clear criteria. “One clear criterion that should be laid down is that actors will not even, in indicative ways, be celebrating the use of such products.” He emphasizes the need to control portrayals of being a winner or deriving joy from product usage, recognizing the influential impact on the masses. Desai advocates for dismantling this shortcut to emulation, stating, 'After all, if the actors do it, the masses feel they should do it too. It’s a shortcut to becoming their idols. We can surely do away with it.”