Every cricket season in India arrives with a familiar spectacle. A leading alcohol brand announces its association with the tournament. Its logo appears on television, stadium hoardings, and digital platforms, but the advertisement is for music downloads, packaged water, or playing cards. The product being advertised bears the exact font, the exact colour palette, and the exact celebrity ambassador as the alcohol brand. Everyone watching knows what is being sold. The law, however, is less certain.
Surrogate advertising is the practice of using a legitimately marketed product to advertise a restricted product indirectly. The Central Consumer Protection Authority (CCPA), through its Guidelines for Prevention of Misleading Advertisements and Endorsements, 2022, defined surrogate advertisement for the first time in Indian law as an advertisement that promotes a product or service that is otherwise prohibited from being advertised by using a different product or service. This definition was significant because it established a statutory basis for regulating the practice beyond administrative guidance. Before 2022, the legal framework was divided and inconsistent: the Cable Television Networks (Regulation) Act, 1995 and its accompanying Rules banned direct or indirect promotion of alcohol and tobacco through television but permitted advertisements for brand extensions where the unrestricted product was genuinely sold at scale.
The fragmentation is structural. At least five distinct instruments govern the field. The Cable Television Networks Rules, 1994 prohibit surrogate advertising on broadcast channels but allow brand extension advertisements subject to conditions. The Cigarettes and Other Tobacco Products Act (COTPA), 2003 bans all direct and indirect advertising of tobacco products across all media. The Consumer Protection Act, 2019 provides a general framework for misleading advertisements. The ASCI Code permits genuine brand extensions subject to objective financial thresholds, specifically that the brand extension must achieve a net sales turnover of Rs. 20 lakhs per month and demonstrate fixed asset investments of not less than Rs. 10 crore. The CCPA Guidelines, by contrast, do not recognise brand extension at all, providing only a vague exception for a brand used for a genuinely different product. The result is not merely a regulatory gap, it is a contradiction between the ASCI framework and the CCPA framework that governs the same set of advertisements simultaneously.
The ASCI criteria for genuine brand extension were designed to create an objective commercial threshold. In theory, if a whisky company genuinely runs a music streaming service that crosses the financial benchmarks, it may advertise that service even though the brand identity connects the consumer to alcohol. In practice, however, the thresholds have been manipulated systematically. Academic and practitioner commentary has repeatedly noted that brands maintain shell operations in soda, water, and event management specifically to meet the revenue and asset thresholds while the primary commercial purpose of the advertisement remains alcohol promotion. The law, in its current form, rewards companies that invest minimally in a genuine product line while permitting the full power of brand recognition to serve the prohibited product.
Enforcement adds a third layer of incoherence. The ASCI operates as a self-regulatory body whose decisions are recommendatory in nature. Non-compliance attracts no statutory penalty. The CCPA, which has statutory enforcement powers under the Consumer Protection Act, 2019, including fines up to Rs. 10 lakhs for misleading advertisements, has issued advisories and notices but has not yet produced a consistent string of penalty orders specifically targeting the surrogate advertising of major alcohol brands. The Ministry of Information and Broadcasting issued directions requiring self-declaration certificates for all advertisements, which was a step forward in creating an accountability trail. But the self-declaration mechanism places the burden on the advertiser to certify compliance, not on any regulator to independently verify it.
The constitutional dimension of the debate is rarely engaged but genuinely relevant. Article 19(1)(g) protects the right to carry on a trade or business, which courts have held extends to commercial speech and advertising. Any restriction on advertising, including restrictions on surrogate advertising, must therefore satisfy the test of reasonable restriction in the public interest under Article 19(6). Restrictions justified by public health considerations, specifically, preventing the promotion of products whose consumption causes serious disease, have a strong constitutional basis. The question is not whether surrogate advertising can be restricted, but whether the current regulatory patchwork constitutes a coherent restriction or an invitation to regulatory arbitrage.
What India needs is a single, consolidated statutory provision that defines surrogate advertising, sets clear standards for what constitutes a genuine brand extension, vests exclusive enforcement jurisdiction in a single authority, and provides meaningful penalties for violation. The Law Commission and the Parliamentary Standing Committee on Commerce have both previously recommended legislative consolidation in this area. The CCPA, with its consumer-facing mandate and statutory enforcement powers, is the appropriate lead regulator. Its definition of surrogate advertising is sound. What it lacks is exclusive jurisdiction, clear evidentiary standards for the brand extension defence, and institutional capacity to monitor digital advertising at scale.
Until that consolidation occurs, the alcohol and tobacco industries will continue to exploit the gap between the ASCI's financial thresholds and the CCPA's definitional framework. Courts, when approached, have generally taken the position that one may not do indirectly what cannot be done directly, and have declined to protect surrogate advertising arrangements that are transparent proxies. But judicial intervention is episodic. It cannot substitute for a statutory framework that is clear enough to be enforced at the volume and velocity at which digital advertising now operates. The public health stakes are not abstract. Alcohol and tobacco together account for a substantial proportion of the non-communicable disease burden in India. A regulatory framework that is internally contradictory is, in practice, no framework at all.