NATIONAL AND INTERNATIONAL REGULATIONS

 NATIONAL AND INTERNATIONAL REGULATIONS

CIGARETTES AND OTHER TOBACCO PRODUCTS(PROHIBITION OF ADVERTISEMENT AND REGULATION OF TRADE AND COMMERCE, PRODUCTION, SUPPLY AND DISTRIBUTION) ACT, 2003 ("COTPA"):

Section 5 of the Act prohibits the advertisement of "Tobacco products" by both direct and indirect means. Sub-clause (i),(iii) and (iv) of Rule 2 of COPTA Rules, clearly sets out that the use of a name or brand of Tobacco products for marketing, promoting or advertising other products would constitute a form of "indirect advertisement". Accordingly, surrogate advertising carried out by tobacco companies would constitute a form of indirect advertisement and would consequently be prohibited under Section 5.

THE CABLE TELEVISION NETWORKS (REGULATION) ACT,1995

Rule 7(2)(viii) of the Cable Television Rules clearly prohibits the direct or indirect promotion and advertisement of "cigarettes, tobacco products ,wine ,alcohol, liquor or other intoxicants"; However the proviso to this rule also runs as:

"Provided that a product that uses a brand name or logo, which is also used for cigarettes, tobacco products, wine, alcohol, liquor, or other intoxicants, may be advertised on cable services subject to the following conditions that-

• the story board or visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner;

• the advertisement must not make any direct or indirect reference to prohibited products;

• the advertisement must not contain any nuances or phrases promoting prohibited products;

• the advertisement must not use particular colors and layout or presentations associated with prohibited products;

• the advertisement must not use situations typical for promotion of prohibited products when advertising the other products"

The rules therefore provide a clear leeway for such surrogate advertisements under the cover of brand-extensions

THE ADVERTISING STANDARDS COUNCIL OF INDIA("ASCI")

ASCI is a voluntary self-regulation council, registered as a non-profit company under the Companies Act. It is formed to safeguard against the indiscriminate use of advertising for the promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large.

Section 6 of the ASCI code states :

'Advertisements for products whose advertising is prohibited or restricted by law or by this code must not circumvent such restrictions by purporting to be advertisements for other products the advertising of which is not prohibited or restricted by law or by this code. In judging whether or not any particular advertisement is an indirect advertisement for product whose advertising is restricted or prohibited, due attention shall be given to the following:

• Visual content of the advertisement must depict only the product being advertised and not the prohibited or restricted product in any form or manner.

• The advertisement must not make any direct or indirect reference to the prohibited or restricted products.

• The advertisement must not create any nuances or phrases promoting prohibited products.'

This section specifically prohibits surrogate advertising along with laying down the criteria for deciding whether an advertisement is an indirect advertisement.

FRAMEWORK CONVENTION ON TOBACCO CONTROL(FCTC)

India ratified the convention on 5th February,2004 and the Convention came into force on 27th Feb,2005. The convention seeks to protect present and future generations from devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke by providing a framework for tobacco control measures.

Article 13 of the Convention is titled as Tobacco advertising, promotion and sponsorship. This article recognizes the fact that a comprehensive ban is necessary and imperative. The framework gives the parties the freedom to introduce a comprehensive legislation banning all tobacco advertising, promotion and sponsorship.