​Due diligence: On surrogate advertising

Maharashtra Food and Drug Administration (FDA) Commissioner Tukaram Mundhe’s attempts to disrupt the marketing chain, by targeting the celebrities who prop up the brand recall of manufacturers’ products, is an encouraging counterpoise to the consumer goods advertising landscape of today. This landscape has long suffered the consequences of a gross asymmetry: the person with the persuasive power suffers almost none of the economic downsides of consuming certain goods, a situation sustained as much by uncritical endorsement as by inequities in the public health-care system. But the FDA must still prove its suspicions. According to it, Vimal Elaichi — which Shah Rukh Khan, Ajay Devgn and Tiger Shroff have endorsed — does not have a market identity independent of its association with tobacco and that endorsing it amounts to a surrogate endorsement of tobacco products. While this seems a reasonable reading of the Cigarettes and Other Tobacco Products Act (COTPA) Rules, the Delhi High Court, in DGHS vs Som Pan Product Pvt. Ltd. (2024), had held that the state had a responsibility to prove a case of surrogate advertising. That is, neither could brand registration alone prove surrogate advertising nor could the mere existence of a technically legal product permit a particular advertisement.

While Mr. Mundhe’s efforts are commendable, the FDA should follow through with inquiries under COTPA and the Food Safety and Standards Act 2006 that withstand scrutiny. India bears the world’s largest burden of oral cancer, and the FDA is right to treat certain advertisements as unfair trade practices with significant consequences for consumer health. The endorser liability created by the Consumer Protection Act 2019, together with hefty financial penalties, has also undermined celebrities’ ability to invoke ignorance of a manufacturer’s intentions as a defence. The FDA’s decision to have celebrity endorsers explain their decision-making is a logical extension of this principle in the domain of enforcement. The problem exemplified by tobacco also extends to products making unsubstantiated claims (e.g., “boosts immunity”), and educational and financial products. Unfortunately, India’s regulatory regime is fragmented across a slew of Acts and Rules; problematic advertisements often invoke legal and administrative instruments to draw the judiciary’s intervention. Penalties or bans in the FDA’s case could significantly narrow the space exploited for surrogate advertising. If the FDA fails to act fairly, however, it could become yet another example of regulatory overreach that strengthened the practices it sought to end.