Bollywood actors get show-cause notice over Vimal Elaichi ad; what is surrogate advertising and what does the law say

Bollywood actors Shah Rukh Khan, Ajay Devgn, and Tiger Shroff have come under scrutiny after Maharashtra's Food and Drug Administration (FDA) issued show-cause notices to them last week, alleging that their advertisement for Vimal Elaichi amounts to surrogate advertising for Vimal Pan Masala.

Bollywood actors get show-cause notices: Here's what we know

News agency PTI, citing the FDA, reported that the use of the expression "VIMAL Elaichi" in the advertisement seems to create an association with the Vimal Pan Masala brand and could mislead consumers while indirectly promoting the prohibited product.

In the notice issued on 11 August, the FDA's Greater Mumbai division noted that the issue was particularly serious and sought responses from the three actors within 15 days.

The FDA described the notice as a “final warning”, stating that the advertisement appeared, prima facie, to be misleading and in violation of the Food Safety and Standards Act, 2006, and the regulations framed under it.

The agency also flagged possible violations regarding surrogate or indirect advertising under other laws and guidelines. Additionally, the FDA directed the actors to immediately discontinue their association with and participation in the Vimal Pan Masala/Elaichi advertisement and remove the promotional content from their official social media handles, websites, and other digital platforms under their control.

What is surrogate advertising?

Surrogate advertising is a form of marketing that involves promoting a legally restricted or prohibited product indirectly by advertising another product carrying the same brand name, logo, or visual identity. The strategy is commonly used for products such as alcohol, tobacco, and pan masala to maintain brand recognition among consumers, The Indian Express reported.

What does the law say on surrogate advertising?

Under the current guidelines, "surrogate advertising" is defined as "an advertisement for goods, product or service, whose advertising is otherwise prohibited or restricted by law, by circumventing such prohibition or restriction and portraying it to be an advertisement for other goods, product or service, the advertising of which is not prohibited or restricted by law”.

In 2022, the Central Consumer Protection Authority (CCPA), under the Department of Consumer Affairs, introduced the “Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements” to curb deceptive advertising and safeguard consumer interests. Set up under Section 10 of the Consumer Protection Act, the CCPA oversees issues involving consumer rights violations, unfair trade practices, and advertisements or endorsements that are false or misleading and may harm the interests of consumers and the public.

According to a Press Information Bureau (PIB) release dated 10 June 2022, "the guidelines seek to ensure that consumers are not being fooled with unsubstantiated claims, exaggerated promises, misinformation and false claims. Such advertisements violate various rights of consumers such as the right to be informed, right to choose and right to be safeguarded against potentially unsafe products and services.”

Under Section 2(28) of the Consumer Protection Act, 2019, a misleading advertisement is defined as an advertisement related to any product or service that meets certain specified criteria:

(i) provides an inaccurate description of the product or service;

(ii) makes a false assurance or could mislead consumers about the product or service’s nature, composition, quantity or quality;

(iii) makes an explicit or implicit claim that, if made by the manufacturer, seller or service provider, would amount to an unfair trade practice; or

(iv) intentionally withholds material information.

The guidelines have also set out requirements for disclaimers in advertisements, covering the disclosure of material information, the language used and the appropriate font size. They also specify the responsibilities of manufacturers, service providers, advertisers and advertising agencies, including the due diligence required before an endorsement is made.

Penalties for violating these guidelines are also clearly outlined. CCPA can impose a penalty of up to ₹10 lakh on manufacturers, advertisers and endorsers for misleading advertisements. For subsequent contraventions, CCPA may impose a penalty of up to ₹50 lakh. CCPA can prohibit the endorser of a misleading advertisement from making any endorsement for up to one year, and for a subsequent contravention, the prohibition can extend up to three years.

The show-cause notices highlight the regulatory scrutiny celebrities and brands face over advertisements that could indirectly promote restricted products.

(with agency inputs)