The ‘Vimal Elaichi’ promotion question

Why in the News

The Maharashtra Food and Drugs Administration (FDA) has issued notices to actors Shah Rukh Khan, Ajay Devgn and Tiger Shroff over their endorsement of Vimal Elaichi, alleging that the advertisements could amount to surrogate promotion of Vimal Pan Masala, a prohibited tobacco-related product in the State. The action moves enforcement from the manufacturer to the celebrity endorser, using food safety, consumer protection and tobacco-control law together.

What is surrogate advertising?

1. About: Surrogate advertising promotes a prohibited or restricted product indirectly, by advertising a legally permitted product that carries the same brand name, packaging identity and visual grammar.
2. How it works: The permitted product acts as a carrier for brand recall, so consumer attraction built around the prohibited product is maintained without the prohibited product ever appearing in the advertisement.
3. Why it exists: Direct advertising of tobacco products is prohibited by law, so a manufacturer extends the brand to a permitted category such as cardamom, mineral water or music to keep the name in circulation.
4. The legal test applied: The question is whether the communication is an advertisement for an independent product or whether it is intended to maintain, reinforce or enhance the brand identity associated with the prohibited product.

What is the Central Consumer Protection Authority?

1. About: The Central Consumer Protection Authority is the regulator created under the Consumer Protection Act, 2019 to protect and enforce the rights of consumers as a class, with powers over false or misleading advertisements and unfair trade practices.

Why does the FDA treat this advertisement as surrogate promotion?

1. The eight elements weighed: The notice assesses the nature of the advertisement, the identity of the brand, its presentation, its visual elements, the dialogue, the product name, the market identity of the brand and the context in which the advertisement is presented.
2. The brand identity test: The notice asks whether the use of the Vimal brand under the name of Elaichi or a similar product is intended to maintain, reinforce or enhance the brand identity and consumer attraction associated with pan masala and tobacco-related products.
3. The consequence if the test is met: Such communication would not merely constitute an advertisement for an independent product, but would amount to indirect or surrogate promotion of a prohibited or restricted product.
4. Status of the underlying product: Vimal Pan Masala is a prohibited tobacco-related product in the State, which is what makes the brand extension legally significant.
5. Interim direction issued: The FDA has directed the removal of all content associated with the advertisement, alongside the notices to the endorsers.

Where does the tension lie between a brand extension and a prohibited promotion?

1. The manufacturer’s position in law: Cardamom is a lawful food product, and advertising a lawful product under a lawful trademark is ordinarily protected commercial activity.
2. The regulator’s position: Legality of the advertised product does not settle the question, since the advertisement’s function may be to sustain recall for a different product that cannot be advertised at all.
3. The shift in the enforcement target: The notices proceed against the endorsers rather than the manufacturer, which places liability on the person lending recognition to the brand.
4. Pan masala’s regulatory position: Pan masala is a regulated food product under the Food Safety and Standards Authority of India framework, so compliance with all provisions relating to its manufacture, marketing, sale and advertisement is mandatory.
5. What remains unsettled: The notice frames the surrogate question as a serious question that arises rather than as a finding, so the determination follows the actors’ response.

Which laws does the notice say the advertisement violates?

1. Food Safety and Standards Act, 2006: The notice invokes various sections of the Act and the rules and regulations framed thereafter, including Section 24, which restricts advertisements and prohibits unfair trade practices relating to food, including misleading advertisements.
2. Food Safety and Standards (Advertising and Claims) Regulations, 2018: Food Business Operators and marketers must ensure that their advertisements are truthful, unambiguous and not misleading, and are prohibited from making claims that encourage excessive consumption of a particular food.
3. Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011: These pertain to substances that may be injurious to health, and are the route through which States prohibit tobacco-bearing pan masala.
4. Central Consumer Protection Authority guidelines, 2022: The advertisement is said to violate the 2022 guidelines on the prevention of misleading advertisements and endorsements for misleading advertisements.
5. Cigarettes and Other Tobacco Products Act, 2003: The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 is invoked for its provisions prohibiting tobacco advertisements.

What penalty can follow a misleading endorsement?

1. Statutory basis: Section 21 of the Consumer Protection Act, 2019 governs action against false or misleading advertisements and against the endorsers of such advertisements.
2. Direction power: The Central Consumer Protection Authority can direct the discontinuation or modification of a false or misleading advertisement.
3. First penalty: It can impose a penalty of up to Rs 10 lakh on the endorser.
4. Repeat penalty: For subsequent contraventions, the penalty may extend to Rs 50 lakh.
5. Endorsement ban: The authority can prohibit the endorser from endorsing any product for up to one year, and for subsequent contraventions the ban may extend to three years.

What procedure must the endorsers now follow?

1. Response window: The notices ask the actors to respond within 15 days.
2. Mode of response: They need not appear in person and may submit a written explanation either in person or through a duly authorised representative, along with documentary evidence.
3. Personal hearing: If they wish to be heard in person they may indicate it in the written explanation, and an opportunity of personal hearing, in person or through a duly authorised representative, is to be afforded in accordance with the principles of natural justice.
4. Consequence of silence: Failure to respond within the stipulated period, or an unsatisfactory response, may attract action under the Food Safety and Standards Act, 2006 without any further reference or notice.
5. The presumption: In the absence of a satisfactory explanation, it shall be presumed that the endorser has nothing to state in the matter.

Challenges to Enforcement Against Surrogate Advertising

1. Proving intent: Regulators must show that a lawful product’s advertisement was intended to promote a prohibited one, which turns on inference from brand identity rather than on a direct statement. Eg. Notices in this case rest on presentation, dialogue and market identity rather than on any reference to pan masala in the advertisement itself.
2. Split jurisdiction: Food safety, tobacco control, consumer protection and broadcasting law sit with different regulators, so a single advertisement attracts overlapping and slow proceedings. Eg. The present notices invoke the Food Safety and Standards Act, 2006, the Consumer Protection Act, 2019 and the Cigarettes and Other Tobacco Products Act, 2003 simultaneously.
3. State variation in prohibition: A product prohibited in one State is lawfully sold in another, so a national advertisement cannot be uniformly assessed. Eg. Gutkha and tobacco-bearing pan masala have been banned by successive State notifications under the 2011 sales regulations, with renewal cycles differing across States.
4. Penalty scale against advertising budgets: A ceiling of Rs 10 lakh on the endorser is small relative to the value of a national campaign, which weakens deterrence. Eg. Pan masala brands are among the largest advertisers during high-viewership sporting events.
5. Digital and influencer channels: Enforcement designed for television and print struggles with content distributed through social platforms and regional influencers. Eg. The Central Consumer Protection Authority had to issue separate endorsement disclosure guidelines for social media influencers in 2023.
6. Cross-border and streaming content: Advertisements and product placement travel through streaming services and platforms hosted outside the regulator’s reach. Eg. Anti-tobacco warning requirements had to be extended to over-the-top streaming content through separate rules notified in 2023.
7. Health burden after prohibition: Prohibition of sale has not removed consumption, since smokeless tobacco moves through informal retail. Eg. Smokeless tobacco use remains widespread in States where gutkha has been banned for more than a decade.

Conclusion

The notices turn on a single legal question: whether an advertisement for a lawful cardamom product functions as indirect promotion of a prohibited tobacco-related product carrying the same brand identity. The FDA has invoked food safety, consumer protection and tobacco-control law together and directed the removal of the associated content. The actors have 15 days to file a written explanation with documentary evidence, and may seek a personal hearing.

“[2018] Consider the following statements:

1. The Food Safety and Standards Act, 2006 replaced the Prevention of Food Adulteration Act, 1954.

2. The Food Safety and Standard Authority of India (FSSAI) is under the charge of Director General of Health Services in the Union Ministry of Health and Family Welfare.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2