Section 5 of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 prohibits the advertisement and promotion of Cigarettes and other tobacco products. It is illegal to place advertisements for cigarettes or other tobacco-related products which includes advertisements in Newspapers, TV Ads/Radio Ads, Online Ads, etc. Such Ads may include banners on buildings, distribution of pamphlets, handbills, or other types of documents. Exceptions to this rule include Advertisements inside the warehouse and shops where tobacco products are sold and on the packages in which they are sold.
It comes under the public policy of the government. The sole motive behind this being, to protect public health by reducing the number of people who smoke.
Consequence Of Violation Section 5 Of COTPA Act
In a case where there is a contravention of the provision (Section 5), Punishment may include imprisonment, fine, or both. If a person convicted for this offense is a first-time offender, he may be imprisoned for a term which may extend up to 2 years or a fine of Rs. 1000 or both. In case of a habitual offender or someone who has committed that offense before, shall be liable for an imprisonment which may extend up to 5 years in addition to it a fine which may extend up to Rs. 5000. In addition to this such products will be forfeited and disposed of in accordance with the rules of the Act.
Surrogate Advertisements In India
To escape the restriction imposed on advertisements, companies generally take the path of surrogate advertisement where the brand indirectly promotes such products by promoting or advertising another product or brand with the same name or logo. The products may be so similarly packaged that there is no significant difference in appeal between them. For Example- Pan Masala Companies often use the sale of Elaichi as a surrogate advertisement. Legally selling Elaichi is not an offense and hence it doesn’t constitute a crime, but on the other hand, the brand’s actual product is not Elachi but Tobacco.
The purpose of an Advertisement is brand recall value that is brand awareness, to maintain the visibility of the brand, and such is achieved very well by such advertisement. Further, such technique is also used by Alcohol companies by advertising soda water or music CDs, etc. To further add to the problem such companies pay money to big movie stars and use their influential power to connect more with people by way of portraying them as using such surrogate products (Elaichi or Mouth Fresheners), it further creates credibility in the minds of the general public.
Governments Guidelines Regarding Surrogate Advertisements In India
Under Section 21 of the Consumer Protection Act, 2019, Central Consumer Protection Authority (CCPA) can impose a penalty of Rs. 10 lakh to 50 lakh, on manufacturers, advertisers, and endorsers for misleading advertisements. Recently Government has issued new guidelines to target surrogate advertisements, it aims to bring transparency to disclaimers in advertisements. The consumer affairs ministry has also directed that the endorsees must carry out due diligence.
Guidelines on Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022
The objective of these guidelines, issued by the government are to protect customers from misleading advertisements which make unsubstantial claims, exaggerated promises, misinformation, and false claim. According to Section 6 of the Notification issued by the Central Consumer Protection Authority dated 9th June 2022, An advertisement shall be considered a surrogate advertisement if such an advertisement suggests directly or indirectly to the consumers that it is an advertisement for goods, products, or services whose advertisement is prohibited or restricted by law, or such advertisement uses any brand name, logo, color, layout, and presentation associated with such goods or services whose advertisement is prohibited or restricted by law. Although the mere use of the same brand name or company name will not be considered Surrogate Advertisement, if such advertisement is not otherwise objectionable as per the provision of the guidelines issued under the Official Gazette of India.
“Smoking Kills” is a common statement we hear every day but it is equally very true. It is something to be taken very seriously. If we look at the graphs, it is evident that there is an increase in the sale of cigarettes. Our country is moving towards a sad future. With the increase in the number of smokers in our country, it is essential for the government to take serious steps and address the issue on an urgent basis. Spreading Awareness although very important is not enough to combat the situation, the problem needs to be dealt with aggressively. A person addicted to tobacco will not stop smoking just because he is made aware that it is bad for his health or the price of cigarettes has been increased. The basic science behind addiction proves that addiction makes a person helpless and makes him choose irrationally, a person might still smoke, say 4 cigarettes a day, and cut expenses in other areas of expense or might switch to a cheaper alternative (For example- Bidi), such steps are largely ineffective in combating the situation.
We as a society need to help people who want to get out of such addiction but are unable to do so on their own, government must enforce such programs which help people combat addiction. The taboo or mentality of society towards people taking part in such programs or asking for help needs to change and must be seen in a brighter light. A smoker doesn’t only cause death to himself but to his family and to the people around him. Numerous types of research show the harmful effect of passive smoking. We as a country must move towards a smoke-free environment and a healthier lifestyle. The loopholes in the laws prohibiting the promotion and advertisement of such products must be filled and must prevent surrogate advertisements. There is a need for legislative, judicial as well as administrative strictness to deal with the issue at hand.
This article is written and submitted by Suryansh Sharan during his course of internship at B&B Associates LLP. Suryansh is a B.B.A. LLB 5th year student at ICFAI University Dehradun.