How 'surrogate' is 'Surrogate Advertising' ?

What is 'surrogate advertising'?
Countries world wide have laws to ban tobacco, alcohol and other narcotic products from advertising. This is obviously intended towards discouraging the consumption of such products in the overall interest of a healthy society. 'Surrogate advertising' is referred to those advertisement campaigns which are projected as ads of products or services whose advertisement is not prohibited but intended to promote the brand which in fact is of prohibited products. Eg. a popular alcohol brand advertising music cassettes and CDs, which music cassettes ans CDs you never find in your neighbourhood music store or a very popular Scotch brand advertising its 'apple juice' which you never find on the shelves of any super markets !

Why companies resort to Surrogate Advertising?
Obviously because that's the only way they can probably get away by advertising their brands which are popularly associated with prohibited products is through surrogate advertising.

What is the latest trend on Surrogate Advertising?
'Surrogate Advertising' per se is prohibited and the government often comes heavily on these advertising practices. ASCI and other advertising bodies have adopted regulations to discourage/prohibit surrogate advertising.

What the companies which make and market prohibited products are resorting to?
Companies are increasingly resorting to brand extensions wherein they will tie up with a genuine product or service providers and launch co-branded products or services. Typically one can see these tie ups happening with music publishers, travel websites etc. where the companies make an attempt portray as if the advertisement is being done for genuine product which in fact contributes to minuscule part of its revenue, if at all it has any overflows after paying the other parties.

There is also a trend where brand extension are more genuine and large scale e.g. ITC launching 'Wills Lifestyle" or Kingfisher launching the 'Kingfisher Airlines'. This serves two purposes; one is to collectively further the brand and two is to de-risk the business from the risk associated with the prohibited products.

How do one distinguish a 'surrogate advertisement' from a genuine 'brand extension'?
The emerging law on this topic seems to be taking the following factors into consideration while deciding on the surrogate nature of an ad campaign;

1. Trade Mark registration certificate/application if any made with respect to the brand extension ;
2. Arrangement with the co-branded entity; and
3. Documentary proof to establish the existence of a distribution channel for the product/service; and
4. Documentary proof to establish the availability of the product in the market where the advertisement campaign is launched;
5. Whether the creative of the advertisements clearly state the products which are being advertised in a large font;
6. Whether all the advertisements in question display the products in the creative of the advertisement. For example if the advertisement is for the Cassettes and CDs, the advertisement in addition to clearly stating the products and services also displays the picture of the cassettes and CDs.
7. With respect to the services, whether the ad clearly describes the service. For example, an ad for the ‘holiday packages; should clearly state the same.

The question of whether an ad campaign is surrogate or genuine is always a subject matter of facts and will depend on case to case. However, in the meantime, it appears that the surrogate advertising continues unabated.