Elaichi ads or chewing tobacco surrogates?

The prevalence of surrogate advertising for chewing tobacco during the IPL is raising questions about who is responsible for oversight and enforcement

The television broadcast of the IPL on Star TV is currently awash with elaichi ads. Amitabh Bachchan and Ranveer Singh are aggressively selling silver-coated elaichi from Kamla Pasand. This is despite the fact that in October 2021, Mr Bachchan terminated his contract with Kamla Pasand. His office released a statement then stating, “When Mr Bachchan became associated with the brand, he wasn’t aware it falls under surrogate advertising. Now, he has terminated the contract with the brand, has written to them about his termination, and has returned the money received for the promotion”. No one knows what transpired in the past two years for Mr Bachchan to change his mind and go back to peddling chewing tobacco masquerading as silver-coated elaichi.

Ajay Devgn, Shahrukh Khan and Akshay Kumar all come together on the IPL telecast repeatedly for “Bolo Zubaan Kesri” in the Vimal elaichi ads. This despite Akshay featuring in the Government of India’s “Zindagi Chuniye Maut Nahi” anti-tobacco campaign since 2018.

Tiger Shroff and Mahesh Babu sell “the heritage elaichi” day-after-day on television, claiming it to be “Pehchan Kamyabi Ki” for Pan Bahar. And our favourite Salman bhai gyrates in every match telecast to “Tashan ka jashan” for “fans and followers” in the Rajshree elaichi ad.

The moot question that begs an answer is whether these are really ads for the humble elaichi or just clever surrogates for chewing tobacco? What does the Law say?  The recent Guidelines for Prevention of Misleading Advertisements and Endorsements, 2022, released by the Department of Consumer Affairs, stamped down very heavily on surrogate advertising, stating upfront that, “No surrogate advertisement or indirect advertisement shall be made for goods or services whose advertising is otherwise prohibited or restricted by law,” but left the door wide open by also saying that, “ … mere use of a brand name or company name, which may also be applied to goods, product or service whose advertising is prohibited or restricted shall not be considered to be surrogate.”

The loophole has been adequately abused in all the elaichi ads that show the product in packaging that is exactly the same as the chewing tobacco sold under the same brand name. This is despite the fact that The Cable Television Networks (Regulation) Act, 1995, Rule 7(2)(viii) clearly prohibits the direct or indirect promotion and advertisement of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants, where the advertisement are not to use particular colours and layout or presentations associated with the prohibited products.

So who should be blamed for overlooking an obvious and very visible contravention of the law? The official broadcaster, Star TV? The ethical advertising watchdog, the Advertising Standards Council of India (ASCI)? The Ministry of Consumer Affairs? The Food Safety and Standards Authority of India? The Censor Board? Well, all of these august entities have some or the other role to play in allowing chewing tobacco to be sold under the garb of elaichi.

Such advertising actually amounts to an offence of cheating under Section 415 of the Indian Penal Code, 1908, especially if it intentionally induces the person so deceived to do or omit to do anything that he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. A case can even be made, if the authorities so desire, for abetment under Section 107, which, “…by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.” But then when the law keepers themselves decide to turn a Nelson’s eye to a deliberate violation under a flimsy garb, then who can really right the wrong?

In all this elaichi advertising everyone has also forgotten that in accordance with law, in-store availability of the “pass-off” must be at least 10 per cent of the leading brand in the category that the product competes, or sales turnover must exceed Rs  5 crore per annum, or Rs 1 crore per annum, in each state it is distributed in. It must have a valid certificate from an independent organisation for such turnover and distribution data. Advertising for such brand extensions cannot feature what is prohibited by law or banned products. But then, who cares? The tobacco lobby is very influential.

My war on surrogate advertising dates back to 2018, when I started pummelling ASCI on misleading liquor ads. I wrote open letters to its chairpersons. I wrote to government authorities. I took the war on surrogates to high gear. Finally, last year, the ASCI was shamed into taking action and red-flagged 14 liquor brands. I stand vindicated as this year IPL is totally liquor-free.

Alas, now liquor surrogates have made way for subterfuge by chewing tobacco brands. Will the ASCI act?     

The writer is managing director of Rediffusion