Surrogate Advertising in India: Rules, Celebrity Endorsements and Regulatory Scrutiny

Surrogate Advertising Latest 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 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.

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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.

Source: IE | N18