Why in news?

Maharashtra's Food and Drug Administration (FDA) issued show-cause notices to actors Shah Rukh Khan, Ajay Devgn, and Tiger Shroff, alleging that their advertisement for Vimal Elaichi amounts to surrogate advertising for the banned Vimal Pan Masala brand.

This marks the first instance of the regulator examining surrogate advertising, even as it intensifies its crackdown on tobacco-containing products.

What’s in Today’s Article?

• What Is Surrogate Advertising?
• What the FDA Notices Allege?
• What the Actors Have Been Asked to Do?
• The Legal Framework on Misleading and Surrogate Ads
• Past Regulatory History

What Is Surrogate Advertising?

• Surrogate advertising promotes a product under a different, permitted brand name, logo, or visual style.
• It is used for goods like alcohol, tobacco, and pan masala, which face advertising bans or restrictions.
• The technique keeps the original brand visible in consumers' minds despite the restriction.

What the FDA Notices Allege?

• The FDA claims the Vimal Elaichi ad's presentation, dialogue, product name, and market context raise a "serious question" over whether it indirectly promotes Vimal Pan Masala — a product currently prohibited in Maharashtra.
• Maharashtra has banned gutkha and pan masala containing tobacco or nicotine since 2012 under Section 30(2)(a) of the Food Safety and Standards (FSS) Act, 2006.
  • This prohibition is renewed annually.
• The FDA has invoked:
  • Section 24 of the FSS Act — restricts misleading and deceptive food advertisements.
  • Section 53 of the FSS Act — penalty of up to Rs 10 lakh for anyone "party to the publication" of a misleading advertisement.
  • The Food Safety and Standards (Advertising and Claims) Regulations, 2018.

What the Actors Have Been Asked to Do?

• The FDA has given the actors 15 days to respond with written explanations and has directed them to:
  • Immediately discontinue participation in and endorsement of the ad, and remove it from their social media handles.
  • Submit their endorsement contracts, campaign briefs, product information, and payment details.
  • Disclose details of the due diligence carried out before endorsing the product.
  • Furnish evidence on whether Vimal Elaichi is an independently sold product or a surrogate/brand extension of Vimal Pan Masala.
  • Disclose any material connection with the advertiser or brand owner, as required under the CCPA (Central Consumer Protection authority) Guidelines, 2022.

The Legal Framework on Misleading and Surrogate Ads

• The Central Consumer Protection Authority (CCPA), established under Section 10 of the Consumer Protection Act, 2019, notified guidelines in 2022 to curb misleading advertisements and endorsements.
• Under Section 2(28) of the Consumer Protection Act, 2019, a "misleading advertisement" includes one that falsely describes a product, gives false guarantees, implies an unfair trade practice, or conceals important information.
• The guidelines define "surrogate advertisement" as one that circumvents a legal prohibition by advertising a permitted product to indirectly promote a prohibited one.
• Penalties under Section 21 of the Consumer Protection Act, 2019:
  • Up to Rs 10 lakh for a first violation, and up to Rs 50 lakh for subsequent violations.
  • The CCPA can bar an endorser from making any endorsements for up to 1 year (first violation) or up to 3 years (subsequent violations).

Past Regulatory History

• In 2018, the Directorate General of Health Services (DGHS), under the Union Health Ministry, issued show-cause notices to Vishnu Pouch Packaging Pvt Ltd (the brand's promoter) under the Cigarettes and Other Tobacco Products Act, 2003, alleging indirect tobacco advertising.
• In January 2024, the Delhi High Court dismissed DGHS's appeals, allowing the company to continue advertising its tobacco-free product, while observing that businesses have a "fundamental right to carry on business" involving pan masala without tobacco, so long as it has constitutional sanction.

Conclusion

The Vimal Elaichi case highlights the persistent regulatory challenge of distinguishing genuine product advertising from surrogate promotion of banned substances.

As Maharashtra tightens enforcement against tobacco products, this episode could set an important precedent for celebrity accountability and brand-endorsement due diligence under India's consumer protection framework.