From 2012 gutkha crackdown to celebrity notices: Maharashtra FDA takes on surrogate advertising again

Fourteen years after Maharashtras Food and Drug Administration FDA launched a crackdown on gutkha pan masala and scented supari advertising the battle over surrogate promotion has resurfaced this time involving three Bollywood starsFormer Maharashtra FDA Commissioner Mahesh Zagade who led the 2012 crackdown says the action forced gutkha and pan masala brands to pull advertisements from television and hoardings and dried up their sponsorship of Ganpati mandals in Mumbai and PuneNow the FDA has issued showcause notices to Shah Rukh Khan Ajay Devgn and Tiger Shroff over their endorsement of Vimal Elaichi alleging that the campaign is a surrogate front to promote Vimal Pan MasalaAnother screengrab from Vimal Elaichi ad featuring the three actors against whom showcause notices were issuedThe notices were delivered to Khans Mannat residence in Bandra Devgns bungalow in Juhu and Shroffs production firm The actors have been asked to place their explanations on record and pull down promotional material from their social media and digital channels within 15 daysThe FDA has invoked Sections 24 and 53 of the Food Safety and Standards FSS Act 2006 along with provisions of the Consumer Protection Act It has alleged that the use of identical brand identity dialogues and presentation creates deceptive brand recall for a prohibited productlsquoWe banned them in 2012rsquoZagade said the issue was tackled during his tenure more than a decade ago ldquoWhen I banned gutkha pan masala and scented supari back in 2012 it was the first time such a blanket ban was imposed in Maharashtra The moment the ban took effect all promotional advertisements were immediately taken off air and stripped from hoardingsrdquoA copy of the showcause notice issued by the Maharashtra FDA to the actors over the advertisementThe surrogate trapAdv Jamshed Mistry Bombay High Court said Section 5 of the Cigarettes and Other Tobacco Products Act COTPA 2003 prohibits direct and indirect advertising of tobacco products ldquoSurrogate advertising is strictly prohibited under the Cigarettes and Other Tobacco Products Act COTPA 2003 Section 5 prohibits direct and indirect advertising of tobacco products and the statutory rules explicitly recognise the use of a tobacco productrsquos name or brand to promote other goods services or events as indirect advertising If an ad for a product like elaichi is used as a vehicle to promote a banned brand it attracts regulatory scrutinyrdquoWhen the ads disappearedZagade said the crackdown also hit corporate sponsorship of Ganpati mandals ldquoBack then Ganpati mandals in Mumbai and Pune were heavily sponsored and flooded with hoardings by gutkha and pan masala giants That year their funding dried up completely Many mandals approached me seeking exemptions but I refused pointblank For the next two years during my tenure not a single ad appeared If these ads crept back in subsequent commissioners clearly failed to pursue the enforcement stringentlyrdquoHe said the FDA had also acted against celebrities over misleading endorsements ldquoI had issued personal notices to top actors for misleading endorsementsmdashincluding fake jointpain oilsmdashand registered over 450 cases against fictitious claims under food and drug laws When one veteran actor was confronted he immediately withdrew Groundlevel action has to be sustained and systemic not just occasional media hyperdquoThe due diligence questionThe case also raises questions about how much responsibility celebrity endorsers have to investigate the brands they promote particularly where a brand is also associated with a restricted or prohibited product Adv Behzd Irani and Adv Ruchika Sharma Advocates Bombay High Court said the advertisement would have to be assessed as a wholeldquoThe FDArsquos allegation essentially raises the question of whether the advertisement of an otherwise permissible product is being used to indirectly promote a prohibited product under the same brand umbrellardquo they said ldquoLegally the mere use of a common brand name may not by itself establish surrogate advertising The advertisement has to be considered in its entirety including its presentation packaging brand recall and the overall impression it creates upon the consumer Importantly a showcause notice is an initiation of regulatory proceedings and should not be equated with a conclusive finding of contraventionrdquoThey said celebrity endorsers should exercise greater due diligence when a brand has an established association with a restricted or prohibited product ldquoIn such circumstances due diligence should extend beyond verifying the legality of the product being advertised and should include an assessment of whether the campaign could reasonably be construed as indirect or surrogate promotionrdquoThe lawyers said the actors should cooperate with the FDA and submit relevant agreements legal clearances and duediligence material They added that unless removal has specifically been directed a showcause notice itself does not amount to a final finding of illegality though continuing the campaign would require caution15 days to explainThe actors have been given 15 days to respond to the FDArsquos noticesThe regulator has soughtgtgt Endorsement contractsgtgt Fee structuresgtgt Duediligence recordsgtgt Explanations from the actorsgtgt Removal of promotional material from social media and digital platformsThe notices initiate regulatory proceedings they do not by themselves establish a final finding of illegalitylsquoElaichi is fully licensed no law brokenrsquoLegal representatives argue that the mouth freshener is a separate and legitimate product Adv Vivek Vidyarthi Supreme Court of India said ldquoMerely having a namesake product does not establish subtle or indirect promotion of an entirely different product The product being endorsed mdash elaichi mdash itself is not banned Endorsement has been carried out under valid statutory licenses and complies with legitimate intellectual property parameters Nonviolation of statutory compliance does not merit removing or suspending the endorsed content It is nowhere in conflict with Section 5 of the COTPA Actrdquo2026 Three stars one brandThe latest FDA action centres on Vimal Elaichi advertisements featuring Khan Devgn and ShroffThe regulator allegesgtgt The campaign indirectly promotes Vimal Pan Masalagtgt The brand identity is identicalgtgt The dialogues and presentation create recall of the prohibited productgtgt The campaign therefore amounts to deceptive promotionThe FDA has also sought the actorsrsquo endorsement contracts fee structures and duediligence records