BMI Exclusive: Will take action against alcohol brands advertising directly on digital, says CCPA's Nidhi Khare

Last week, the government released guidelines around misleading ads. In those, it specified that surrogate advertising is banned, but brands prohibited by law to advertise directly can continue advertising brand extensions by matching the criteria for legitimate brand extensions.

They also lay down the guidelines around brand endorsement, conditions for bait advertising and free claims, advertising targeted at children and more.  

Since then, there have been many critics and appreciations hovering general conversations in the advertising and marketing fraternity. Some have praised the government for taking real action on the ground around misleading ads and surrogate advertising, while others have raised doubts around there being no clarity around brand extensions, what constitutes junk food, and the need for more guidelines around other issues related to advertising. 

Therefore, BestMediaInfo.com caught up with Nidhi Khare, Chief Commissioner, CCPA (Central Consumer Protection Authority), to get more clarity on the new ad guidelines. 

In the interview, she said that surrogate advertising was already banned, and the new guidelines are just a reiteration of the existing provisions of surrogate advertising. No new addition has been made there. 

Nidhi said that these guidelines cover all mediums of communication and CCPA will take action against alcohol brands advertising directly on the digital medium. She also spoke about influencers coming under the government radar, advertising targeted towards children and gender portrayal in ads. 

Excerpts: 

Surrogate advertising is banned for a long time now. There are already government guidelines in place for bait advertising, endorsement and advertising to children as mentioned in the Consumer Protection Act. What is the thought behind re-iterating these guidelines again?

We’ve been taking action against misleading ads as the Central Consumer Protection Authority since the time it had been set up in July 2020. As such, there was no need for the guidelines. Anyways, we were taking action against misleading advertising. We have penalised some of the very important brands, including Sensodyne and Naaptol. We have also issued orders against more than 40 very big names like Asian paints, Burger paints, Siyaram Fabric, Zodiac shirts, Kent RO and others. 

With these guidelines, we wanted advertisers, advertising agencies, manufacturers, etc, to become aware of what is a valid advertisement and what are the dos and don’ts. Everybody is required to do due diligence before they create an ad. 

In some way, it is a re-iteration. Anything which is missed out and has not been mentioned in the guidelines doesn’t mean it will not be covered. Consumer Protection Act already explicitly mentions what constitutes a misleading advertisement. 

Does that imply there is no new addition to the advertising guidelines around surrogate advertising? Rules around surrogate advertising remain the same as mentioned in various laws and rules of the government? 

If there are any other rules or regulations in any other department or by any other authority, this is not a derogation of their authority. 

There are many times reiterations of the commonly held nuances and along with whatever other authorities or other departments have issued guidelines; this is basically with regards to the misleading advertisement towards consumers in general.

There are so many brands advertising alcohol directly on the digital medium for so many years now. Wouldn’t CCPA take action against such brands?

It is very clear that the guidelines are applicable across mediums. We will take action against brands directly advertising alcohol be it any medium, including digital. 

Does that also mean that brands who have already put so much content directly about alcohol on digital, will have to pull down their ads?

Yes, they should. They must go through the guidelines. These are basically for their own guidance, otherwise, CCPA is free to take action.

According to the COTPA Act, tobacco brands cannot even advertise brand extensions. In order to be able to advertise, tobacco brands have removed tobacco from their base product and sell it and tobacco separately. This legitimises tobacco brands to advertise brand extensions. Shouldn’t there be stricter guidelines or smart ways to combat such ads? 

Think of yourself as a consumer. Can a tobacco brand not sell any other thing but tobacco? Legally, they can diversify into selling any brand. ‘Elaichi’, which most of these tobacco brands sell, doesn’t contain tobacco or anything like that. Therefore, no one can stop them.

Let us take the example of Kingfisher, which also ran airlines. Can anybody have stopped it by saying that this is their brand extension? Similarly. there are so many such brand extensions. There have been so many judgments on this from Supreme Court to various High Courts and it's very clear. I don't see why there should be any confusion around brand extensions. 

Guidelines around advertising for children state that junk food, including chips and carbonated beverages and other such snacks, should not air during programmes meant for children. The guidelines lack clarity on what all could fall under junk food?

Everybody knows what junk food is. 

Asking this question because ‘Too Yumm’ produces baked chips, which are healthy. So, would it be counted under junk food? Would a Subway also fall under the definition of junk food?

We’ll start examining as and when cases come in. Many consumer organisations and the Ministry of Women and Child Welfare have raised concerns around obesity amongst children in our country, which is only on the rise. A major reason is attributed to the consumption of non-nutritious food, which is being very attractively sold through ads, and particularly when children are watching their programmes. So many times, these products are compared with the traditional food, which is not shown in a very good light in ads. Any child can get attracted to such products through ads.  

There has to be a certain kind of restraint and responsibility shown by advertisers and brands. They don’t do all this in developed countries because the law there is very strict. In our country, I think people start nit-picking and they just want some kind of loopholes so that they can continue to remain irresponsible towards society. 

Shouldn’t junk food be put under the guidelines for harmful advertising and not misleading, because these are harmful products and not misleading. Brands in this category can challenge the guidelines or find loopholes to continue advertising to kids. 

We’ll see to it. 

Do guidelines around brand endorsers also cover social media influencers?

We have not categorised endorsers into celebrities, bloggers or influencers. The guidelines clearly state that anyone endorsing a brand, be it an influencer, celebrity or even a blogger, if caught misleading consumers and has not done his/her due diligence around the product and service he/she is advertising for, then that person has an equal responsibility to undertake.

Would CCPA also come up with some specific guidelines for crypto brands advertising or do they fall under disclaimer and bait advertising provisions of the ad guidelines?

For any goods or products which are being sold to consumers, there has to be a truthful and honest declaration. This is a simple premise and anybody who is misleading, through wrongful facts or is trying to exaggerate or trying to make it such that it actually appears to be an unfair trade practice or conceal important information, all will constitute misleading advertisements. 

There have been consumer activists, consumer organisations and ordinary citizens who have been writing to us against misleading ads. Now when the advertising guidelines are out for advertisers to adhere to, we will take action against brands misleading consumers. 

Recently, ASCI released guidelines around gender portrayal in advertisements. Would the government also be introducing a set of rules around gender portrayal? 

We only see the Consumer Protection Act from the point of view of the consumer and if any brand is misleading them. Are the people who work in the industry not well-read and qualified? Can they not regulate themselves? Can they not have some self-restraint? Can they not have some code of ethics for themselves? Do you want the government to regulate each and every activity of yours? 

Would the agencies, publishers and platforms also be penalised if they don't follow these guidelines?

They are the service providers. We’ll only take action against the ones who are getting the publication done, the ones who are gaining from the publication of ads on the platforms. Somebody who's just renting out a space is not really the culprit. 

Is there something else you would want to convey to the industry?

It is time for the industry to become responsible. It is time for the endorsers to do due diligence in what they are endorsing. It is time for respecting consumer rights and it is important to be truthful and honest with whatever claims one is making about the goods or services being promoted. We are not against the industry. In fact, we would want greater consciousness among all the different partners. We would definitely want a change in the way things were operating after the guidelines have been issued.

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