Surrogate Advertising In India :Is CBFC Certification mandtory?

We are all familiar with the quirky and satirical advertisements of ‘Men Will Be Men’ for Seagram’s Imperial Blue Superhits Music CDs. Needless to mention, the brand “Imperial Blue” is in fact a popular brand of Indian whisky, owned by Pernod Ricard and launched in the year 1997. Since Indian law prohibits advertisements that promote, directly or indirectly, the production, sale, or consumption of cigarettes, tobacco products, alcohol in India, these products are advertised through surrogate advertising or brand extension.

Time and again there have been numerous case laws, Court rulings, and Govt. notifications prohibiting/regulating the advertisement of these products in India. ASCI, the self-regulatory body of advertisements in India, has been playing a proactive role in this regard thereby keeping all these ads in check.

Evolution of Surrogate Advertising in India

In India, the Ministry of Information and Broadcasting (I&B), through The Cable Television Networks (Regulation) Act, 1995 (‘Act’) and The Cable Television Networks Rules, 1994 (‘Rules’) as well as other policies and guidelines issued from time to time, has been regulating content on private satellite channels, a network of multi-system operators, and local cable operators (LCOs).

Rule 7 of the Rules prescribes the advertising code which has to be conformed to by cable operators while broadcasting advertisements through their cable service. Rule 7(2) specifically enlists advertisements that cable operators would not be allowed to broadcast. Rule 7(2) prohibits advertisements that “promotes directly or indirectly production, sale or consumption of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants.”

 A proviso to the above Rule was inserted through an amendment on August 9, 2006 [G.S.R. 469 (E)]1, which permitted advertisements of products that use a brand name or logo, which is also used for cigarettes, tobacco products, wine, alcohol, liquor, or other intoxicants, subject to conditions that (i) the storyboard or visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner; (ii) the advertisement must not make any direct or indirect reference to prohibited products; (iii) the advertisement must not contain any nuances or phrases promoting prohibited products; (iv) the advertisement must not use particular colours and layout or presentations associated with prohibited products; (v) the advertisement must not use situations typical for promotion of prohibited products when advertising the other products:

“Provided further that all such advertisement shall be previewed and certified by the Central Board of Film Certification (CBFC) suitable for unrestricted public exhibition prior to telecast or transmission or retransmission.”


Timeline of Various Orders by the Government Pertaining to Surrogate Advertising

  • A notification2 issued by the Ministry of I & B on February 27, 2009, had stated that such ads found to be “genuine brand extensions” shall be previewed and certified by the CBFC.
  • Another directive3 that was issued on June 17, 2010, was quite blunt on the rules as it directed all TV channels to stop carrying any ad of a product that even used a brand name or logo used for wine, alcohol and liquor. According to this directive, it looks that even though any other product was being advertised, the ad will be prohibited if it contained the name of an “alcoholic beverage”
  • Recently, the Ministry of I & B on September 15, 2020, issued an advisory4 with a view to curb surrogate advertisements, saying that such ads are to be previewed and certified by the CBFC to ascertain whether they are suitable for unrestricted public exhibition and are in accordance with stipulated This is the latest order by the government in this regard.

Is the Advisory binding in nature?

  • The question which arises here is that whether such “advisories” issued by the Ministry of I & B are binding on the Court in the case of Kritika Padode v. Union of India & Anr.5 had established that an advisory is not a legally binding order. The court had mentioned that they were just “mere advice to the private satellite TV channels”.
  • Also, in the 2019 Allahabad High Court Judgement, Struggle Against Pain v. State of U.P.6 where the main issue pertained to “Surrogate Advertisement”, there was no mention of a CBFC certificate being


Rule 7 sub-rule (9) was amended7 on August 2, 2006, which made the Advertising Standards Council of India (ASCI) Code compulsory for the regulation of television advertisements. The ASCI is however a self-regulating body for the advertising and primarily has the power to pull up an advertiser for any violations against the advertising code. The Code does not though explicitly mention the requirement of a CBFC certificate to advertise something “surrogate”.

The ASCI8 has provided guidelines for the qualification of brand extensions, which are:

  1. The product or service should be registered with an appropriate government authority eg Central Value Added Tax (CENVAT)/ Value Added Tax (VAT)/ Food and Drug Administration (FDA)/ Food and Safety Standards Authority of India (FSSAI)/ Trade Marks Registry (TM).
  2. The availability of the surrogate product in the market must be at least 10% of the leading brand’s market share as measured in metro cities where the product is being
  3. The sales turnover of the product or service should exceed Rs 5 crore per annum pan-India or Rs 1 crore per annum per state where the distribution has been
  4. A valid certificate must have been obtained from an independent organisation such as AC Nielsen or a category-specific industry association before

This has yet again been notified in a Press Release recently issued by ASCI on November 2, 20208. The Press Release reiterated that advertisements for brand extensions could not feature anything prohibited by law or that pertained to banned products nor could it refer to or hint at such products. The Press Release was issued to keep a check on advertisements that were being broadcasted during the IPL. Further, the IPL broadcaster also confirmed that all advertisements were checked for CBFC clearance so that they are not in violation of the Act.


The ASCI further sought responses from advertisers, within 7 days, to validate their claims of their product or service being a genuine brand extension, which included sales, distribution, and market share data certified by an independent body. The advertisement was to be allowed to continue only if it met the criteria for a genuine extension. However, if no response was received, then order would be passed ex-parte.

ASCI Rulings 

The Consumer Complaints Council (CCC) set up by ASCI handles complaints pertaining to advertisements that come before the ASCI. On perusing complaints for the year 2019-2020, there were 12 rulings related to surrogate advertising and brand extensions. Based on the cases, it may be inferred that ASCI places emphasis on adherence to its Guidelines for Qualification of Brand Extension Product or Service.

Consumer Protection Act, Rules & Guidelines

The draft Central Consumer Protection Authority (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines, 2020, was issued in August 2020, by the Central Consumer Protection Authority (CCPA) in the exercise of the powers conferred by clauses (c) and (d) of sub-section (1) of section 18, read with clause (l) of sub-section

(2) of section 18 of the Consumer Protection Act, 2019 (Act 35 of 2019) (CPA).

The draft guidelines have been framed for the prevention of false or misleading advertisements as well as due diligence to be carried out for endorsements. Hence, the scope of the guidelines pertains to all advertising/ marketing communications regardless of form, format, or medium and apply to manufacturers/service providers whose products/services are the subject of the advertising/marketing communications, as well as to advertisement agency and endorser (wherever applicable) of the product/service9.

The draft guidelines under Rule 8 have also included Surrogate Advertising. Further, the guidelines state that the provisions of the CPA would apply for any violations of the provisions of the guidelines. Hence, we can gather that should there be any contraventions to the guidelines once it is notified, the CPA would have the power to impose penalties on the manufacturers or endorsers.


It may be noted from the Cable TV Act & Rules that the amendment was made to permit surrogate advertisements for genuine brand extensions, but solely with such advertisements being compliant with the requirements provided therein and in the ASCI Code. Hence, one such prerequisite is that the advertiser needs to obtain a certificate from the Central Board of Film Certification (CBFC) for such advertisements to be allowed on the cable service. This has again been reiterated in several notifications issued by the Ministry of I & B and ASCI.

From the above rulings and the press release, it can be gathered that ASCI has come down heavily on advertisements for even the slightest of references to banned products (such as alcohol and the like) in their surrogate advertisements. Hence, adhering to such requirements provided in the Rules, Code and other related guidelines/notifications issued from time to time may be the way to ensure that such advertisements are displayed to the public. The ASCI being a self-regulatory body has no powers to penalize the advertisers and may only have them modify or remove their advertisements should they not comply with their Code. However, under the draft guidelines issued by CCPA, which has defined surrogate advertisements, directions could be issued, and penalties could be imposed against false or misleading advertisements by manufacturers/endorsers. Based on this, we would have to wait and watch on how both bodies would work together or if the powers of the ASCI for false and misleading advertisements would decrease.






5 2016 SCC OnLine Del 4360

62019 SCC OnLine All 4624






Image Credits: Photo by Mohammad Shahhosseini on Unsplash  

From the above rulings and the press release, it can be gathered that ASCI has come down heavily on advertisements for even the slightest of references to banned products (such as alcohol and the like) in their surrogate advertisements. Hence, adhering to such requirements provided in the Rules, Code and other related guidelines/notifications issued from time to time may be the way to ensure that such advertisements are displayed to the public.


The football transfer: How the Barcelona – Messi matter turned murky

“In Barcelona, on 14 December 2000 and the presence of Messrs Minguella and Horacio (Gaggioli), Carles Rexach, Director of Football of F.C.B., hereby agrees under his responsibility and regardless of any dissenting opinions, to sign the player Lionel Messi, provided that we keep to the amounts agreed upon.”


Carles Rexach, the then Director of Football of F. C. Barcelona, scribbled this on a napkin to sign up a young Argentinian wonder kid, Lionel Messi, as he had never seen such a talent before and did not want to lose out on him. Thus, began the fairytale journey of Messi’s tryst with Barcelona and as history suggests this gamble that played out 20 years ago, turned out to be the most profitable for the club and rewarding for Messi.

Messi has been the Messiah for the club on several occasions, wriggling the club out of tough situations with his magic touch. With Messi on their side, Barcelona established itself as a formidable force that won everything that world football could offer. As all good things inevitably come to an end, this fairytale match appeared to have come to an end when Messi formally notified the club of his intention to unilaterally terminate his contract.

The events that transpired after the news broke out of Messi’s intention to leave highlight some troubling issues that are currently plaguing the football transfer market; in particular, the breakdown of relationships between a club and a player at the instance of their squabbling over better wages and contracts. Messi’s dispute with Barcelona revolves around the unique nature of a football contract and the role relationships play in such contracts.


In order to understand the dispute better, one must first have a formal understanding of the football transfer market.


What is a football transfer? Generally, a transfer in football is like any other business transaction that takes place between two football clubs and involves the transfer of a player who is under a contract with one club to another club in consideration of a fee known as a transfer fee.


A transfer is considered complete when the buying and selling clubs agree on the terms of sale and when the buying club enters into a contract with the player.



How does football transfer work?

If a transfer has to take place, the buying club must first approach the selling club and inform in writing before entering into negotiation with the player. This is legally mandated under Article 18(3) of the FIFA Regulations on the Status and Transfer of Players (the ‘Transfer Regulations’).


It is important to note however that the ultimate bargaining power in a transfer still lies with the selling club.



What is a transfer request?

A player, who is dissatisfied with his current club and finds himself in a position wherein the club has rejected all transfer bids from other clubs, may put in an official transfer request to the club. The only drawback is that such a request has no legal bearing and the club may choose to reject the plea.



When can a football transfer happen?

A transfer can take place during the “registration periods” which are provided by the governing bodies of the respective national associations.

In Europe, there are officially two periods during which transfers can take place – summer (July 1st – August 31st) and winter (January 1st – 31st) transfer window.


What is the duration of contracts between the players and the clubs?

The duration of a contract entered into by a player with the club may vary from short term to long-term depending on a variety of factors such as the age of the player, their skill, commercial value, potential growth and injury risk of the player. The term of a contract is determined mostly by these factors.

According to Article 18 (2) of the Transfer Regulations, the minimum term of a contract shall be from its effective date until the end of the season, while the maximum term of a contract shall be five years. Players under the age of 18 may not sign a professional contract for a term longer than three years.


Having garnered a basis of what and how a football transfer works, it is necessary to understand the terms of the contract between Messi and FC Barcelona that enables him to leave Barcelona on a free transfer and the reason behind the current situation between two.


What enabled Messi to leave Barcelona for free? Messi extended his contract with Barcelona in 2017 for a duration of 4 years, which was a deal that would enable him to retire at the club. However, on the insistence of Messi, an additional clause was added in the contract, which granted Messi the right to unilaterally terminate the contract at the end of each season and leave for free, provided that he notified the club prior to June 10th.



What was the legal issue involved in their dispute?

The legal issue involved the interpretation of the terms of the unilateral termination clause in light of the unprecedented COVID–19 pandemic that led to the interruption and the subsequent extension of the season.


Messi claimed that since the pandemic had suspended the season temporarily and it restarted only after June 10th (La Liga re-started on June 11th, 2020), it was impossible for him to exercise such a right before June 10th. Messi thus wished for the terms of the contract to be viewed liberally in light of the unprecedented events.


The Barcelona Board however contested that the terms of the contract strictly mentioned June 10th, hence Messi could not unilaterally terminate the contract post that date. The issue therefore would depend on whether the terms of the contract specifically mention a “specific date” or whether it is termed as the “end of the season”. In any case, according to Article 16 of the Transfer Regulation, a contract cannot be unilaterally terminated during the course of a season.



Relationship v Contract: what matters more?

The reason behind this issue turning unpleasant is largely due to the long-standing relationship that Messi had with Barcelona ever since he was a young boy. On a deeper analysis, the issue throws light on an important question – what is the nature of a football contract; is it purely a business transaction or does it involve the building of a relationship of trust, faith and respect?


Generally, the nature of any football contract is such that a player is associated with a club for a period of 3-4 years. It is unlike a business transaction of sale wherein it involves a single transaction. Instead, football contracts bind a player to the club for a considerable period of time and hence building a definitive relationship with the club is essential for the success of the contract. While the contract may describe the legal relationship, the true essence of the deal is the personal relationship.


Therefore, if a football contract failed to build a human connection between the player and the club, it would only increase the chances of the player leaving mid-contract and create a hostile environment for both parties.




In this case, Barcelona should have gauged the reasoning behind Messi’s intention to include a clause to unilaterally terminate his contract at the end of each season. Adding to the misery, the club management seems to have created a situation, which ultimately drove him to the point of making a decision to leave.


Barcelona’s actions, post Messi’s notification to leave, has been criticized as a tactical move to ensure that Messi had no other option but to stay at the club or could only leave provided the Club received his hefty release amount of € 700 million.


While Messi decided not to take the matter to Court, Barcelona seems to have made a big commotion out of it by forcing him to change his decision and stay with the club, perhaps until next June, thereby destroying the long-standing relation between the two.


Image Credits: Photo by Connor Coyne on Unsplash

If a football contract failed to build a human connection between the player and the club, it would only increase the chances of the player leaving mid-contract and create a hostile environment for both parties.