May 10, 2024 | 6 minute read

Riding the Wave: A Look at Moment Marketing in India and Its Legal Landscape

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Sharad Vadehra

Managing Partner

Aakriti Vadehra

Get in touch

Sharad Vadehra

Managing Partner

Aakriti Vadehra

Moment marketing, the art of capitalizing on real-time trends and events to create engaging content, has become a popular strategy for brands in India. With India's digitally savvy audience, where social media spreads trends like wildfire, moment marketing has become a favorite tool, allowing brands to forge authentic, real-time connections. But in a market such as India, where sensitivity is paramount, brands must tread carefully, balancing creativity with legal awareness to avoid potential controversies and regulatory pitfalls.

This blog explores the rise of moment marketing in India, its legal considerations, and the potential rewards and pitfalls for brands.

What is Moment Marketing?

Moment marketing involves crafting quick, creative messages that resonate with current events, social media trends, or cultural happenings. Driven by FOMO, brands leverage the buzz surrounding these moments to connect with consumers and build brand awareness. A well-timed moment marketing campaign can generate significant social media engagement and positive brand sentiment.

Recently, there have been multiple instances of moment marketing in India. Brands like Zomato, Swiggy, Amul, and JSW Paints have all leveraged trending topics, with mixed outcomes.

The most recent and the most controversial example of moment marketing comes from the Bombay Shaving Company (BSC) that featured Prachi Nigam, a girl who topped the class 10 exams of one of the biggest states in India. The ad was criticized for exploiting Nigam's vulnerability (facial hair) and capitalizing on her success for BSC's commercial gain, without her consent. The newspaper ad intended to support Nigam, with a message stating, "Dear Prachi, they are trolling your hair today, they'll applaud your A.I.R [All India Rank] tomorrow" and "We hope you never get bullied into using our razor." Naturally, the ad backfired significantly and received backlash on social media with users condemning the ad as insensitive and accusing the company of low-class advertising.

Manisha Kapoor, CEO of ASCI, commented on one of the posts on LinkedIn, "ASCI has taken note, and will progress on this. Moment marketing is usually a monumental disaster if not done well.”

In line with Kapoor’s comment, moment marketing is not illegal. However, when moment marketing is not executed with careful consideration of the ASCI Code or the Consumer Protection Act it can lead to legal repercussions. Additionally, if the ad misses the mark on ethical considerations or exploits sensitive situations, it can damage a brand's reputation and backfire spectacularly.

Legal Framework Governing Moment Marketing

While there are no dedicated guidelines, rules or regulations governing moment marketing in India, ASCI Code prohibits misleading advertisements, promotes social responsibility, and emphasizes decency in communication. These are the key principles of the ASCI Code for moment marketing:

Truthfulness and Honesty: The Code prohibits misleading claims and deceptive practices. Moment marketing campaigns must ensure factual accuracy and avoid exaggerating product benefits to capitalize on the trend.
Decency and Social Responsibility: The Code discourages offensive or insensitive content. Humor or social commentary used in moment marketing campaigns should be carefully evaluated to ensure it doesn't exploit sensitive topics or offend cultural sensibilities. A moment marketing campaign that uses false claims, exploits a sensitive event, or is generally offensive could be challenged by ASCI.
Legal Compliance: The Code emphasizes that advertisements must comply with all applicable laws and regulations in India, including privacy laws which can be a concern if moment marketing involves real-time data or images of individuals who have not consented.

While not a legal enforcement agency, ASCI's Consumer Complaints Council (CCC) can help identify and addressing potentially unethical marketing practices. If the CCC finds the advertisement violates the ASCI Code, they might recommend the advertiser modify or withdraw the campaign. Most advertisers comply with ASCI's recommendations to avoid reputational damage and potential consumer backlash. Compared to the redressal mechanism under the Consumer Protection Act (discussed below), ASCI's complaint mechanism offers a quicker and less expensive way to address concerns about moment marketing campaigns. However, ASCI's recommendations are not legally binding. While most brands comply, some might choose to ignore them, especially for short-lived marketing campaigns. Moreover, ASCI lacks the authority to impose fines or penalties for violations.

The Consumer Protection Act (CPA) provides legal teeth to enforce consumer protection. The two frameworks work in tandem. An advertisement that violates the ASCI Code might not necessarily be illegal, but it could still be challenged under the CPA if it misleads consumers or employs unfair trade practices. Here's how the CPA plays a role in regulating moment marketing:

Misleading Advertisements: The CPA prohibits misleading advertisements. In the fast-paced world of moment marketing, there's a risk of making exaggerated claims or using deceptive visuals to capitalize on a trend. The CPA ensures brands don't mislead consumers about the product or service being advertised.
Unfair Trade Practices: The CPA protects consumers from unfair trade practices like false or misleading representations, denial of essential information, and aggressive sales tactics. Moment marketing campaigns need to transparent about the product or service being promoted and avoid pressuring consumers into impulse purchases based solely on the fleeting nature of the trend.
Endorsements and Testimonials: Any endorsement or testimonial used in moment marketing must truly reflect the genuine opinion of the endorser, and there must be evidence to prove that the claims made are verifiable. The CPA requires that endorsements or testimonials must not be presented in a way that is likely to mislead consumers.
Accountability of Celebrity Endorsements: Celebrities who endorse any product or service through moment marketing must also ensure that the claims made in the advertisements are not misleading. Under the Act, both the endorsers and the manufacturers/service providers are held accountable for any false claims.

The CPA provides a mechanism for consumers to file complaints against misleading or unfair marketing practices. If a moment marketing campaign violates the CPA, the Central Consumer Protection Authority (CCPA) can impose penalties on manufacturers, advertisers, or endorsers involved in misleading advertisements. For the first contravention, the penalty can extend up to ten lakh rupees (12,000 USD approx.). For subsequent contraventions, the penalty can extend up to fifty lakh rupees (60,000 USD approx.). The CCPA can also either order the discontinuation or modification of the misleading advertisement or prohibit the endorser of a misleading advertisement from endorsing that particular product or service for up to three years.

The Do’s and Don’ts of Moment Marketing in India

The Do’s

Prioritize Truthfulness: Abide by the ASCI Code's principles of truthfulness and honesty. Avoid misleading claims or exaggerating product benefits to capitalize on the trend.
Maintain Decency: Respect cultural sensitivities and avoid offensive or insensitive humor. A moment marketing campaign that goes viral for the wrong reasons can have lasting negative consequences.
Adhere to Legal Standards: Comply with all relevant laws, including those concerning consumer protection, advertising standards, and data privacy. Ensure your advertisements do not contravene any laws or regulations.
Plan and Act Quickly, But Ethically: While speed is essential, prioritize responsible marketing practices. Ensure the campaign complies with the ASCI Code and doesn't violate the CPA.
Align with Brand Values: Ensure your moment marketing campaign aligns with your brand's core values and messaging. A forced connection to a trend can appear inauthentic and damage brand trust.
Monitor Brand Sentiment: Use social media listening tools to monitor brand sentiment throughout the campaign. Be prepared to adapt or pull the campaign if negative sentiment arises.

The Don’ts

Make Misleading Claims: Don't use deceptive visuals or information to promote your product or service. The CPA strictly prohibits misleading advertisements.
Employ Unfair Trade Practices: Avoid pressuring consumers into impulse purchases or using aggressive sales tactics. This could potentially violate the CPA's provisions on unfair trade practices, as well as the ASCI Guidelines on Dark Patterns in Advertising.
Ignore ASCI Guidelines: While self-regulatory, ASCI's guidelines provide valuable guidance for ethical moment marketing. Ignoring them could lead to reputational damage and potential sanctions.
Exploit Sensitive Situations: Avoid capitalizing on tragedies, social unrest, or personal misfortunes for marketing purposes. This can be seen as insensitive and exploitative.
Rush Without Research: Don't jump on a trend without proper research and understanding the context. A poorly timed or irrelevant message will fall flat.

Conclusion

In a country as diverse and vibrant as India, understanding the cultural pulse while adhering to legal standards like the ASCI Code and the Consumer Protection Act can transform moment marketing from a “monumental disaster” to a strategic asset. By doing so, brands can ensure that their ingenious moments of marketing brilliance are not only effective but also cherished by consumers.

A campaign should not only aim to capture the fleeting attention of consumers but also contribute positively to the brand’s reputation and relationship with its audience. This means making informed decisions that avoid exploiting sensitive topics and ensuring all advertising content is both truthful and respectful. In essence, successful moment marketing is not just about being in the right place at the right time—it's about being right in how you speak to the heart of the moment, with integrity and respect for the consumer.