Maharashtra FDA Notices to Actors

GS-II: Governance | Consumer Protection | Regulatory Bodies | Public Health
GS-III: Food Safety | Tobacco Control | Health Regulation

Context

• Maharashtra FDA action: The Maharashtra Food and Drugs Administration (FDA) has issued notices to Shah Rukh Khan, Ajay Devgn and Tiger Shroff over their endorsement of ‘Vimal Elaichi’.
• Core allegation: The advertisements may amount to surrogate or indirect promotion of Vimal Pan Masala, a tobacco-related product.
• Legal basis: The notices invoke provisions of food safety, consumer protection and tobacco-control laws.
• Response: The actors have been asked to respond within 15 days.
• Advertisement removal: The FDA has also directed removal of content associated with the advertisement.

Why Does the FDA See the Advertisement as Surrogate Promotion?

• Brand identity: The FDA has examined the identity of the brand used in the advertisement.
• Visual presentation: The visual elements, dialogue and product presentation are relevant to determining the nature of the advertisement.
• Market identity: The market identity of the VIMAL brand is an important consideration.
• Consumer association: If the use of the VIMAL brand under the name of Elaichi maintains, reinforces or enhances consumer association with pan masala/tobacco-related products, it may constitute indirect promotion.
• Core concern: The advertisement may not merely promote an independent Elaichi product but could function as a means of promoting a prohibited/restricted tobacco-related product indirectly.

Which Laws Are Invoked?

1. Food Safety and Standards Act, 2006

• Section 24: Restricts advertisements and prohibits unfair trade practices relating to food, including misleading advertisements.
• Regulatory framework: The Act is supplemented by rules and regulations governing food advertising and claims.

2. Food Safety and Standards (Advertising and Claims) Regulations, 2018

• Truthful advertising: Food Business Operators and marketers must ensure advertisements are truthful, unambiguous and not misleading.
• Excessive consumption: Advertisements cannot make claims that encourage excessive consumption of a particular food.

3. Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011

• Health concerns: The regulations deal with substances that may be injurious to health.
• Pan masala: Pan Masala is treated as a regulated food product under the FSSAI regulatory framework.
• Compliance: Its manufacture, marketing, sale and advertisement must comply with applicable legal provisions.

4. Consumer Protection Act, 2019

• Misleading advertisements: The framework provides powers to address false or misleading advertisements and endorsements.
• CCPA: The Central Consumer Protection Authority can direct the discontinuation or modification of such advertisements.

5. CCPA Guidelines, 2022

• Misleading advertisements: The 2022 guidelines deal with prevention of misleading advertisements and endorsements.
• Endorser responsibility: They provide a regulatory framework for endorsements and seek to prevent consumers from being misled.

6. COTPA, 2003

• Full name: Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.
• Objective: Prohibits advertisements relating to cigarettes and other tobacco products and regulates their trade and distribution.
• FDA allegation: The advertisement has also been alleged to violate provisions relating to prohibited tobacco advertising.

What is the Penalty for Violating the Rules?

• First contravention: Under Section 21 of the Consumer Protection Act, 2019, the CCPA can impose a penalty of up to ₹10 lakh on an endorser.
• Subsequent contravention: The penalty may extend to ₹50 lakh.
• Endorsement ban: The authority can prohibit the endorser from endorsing products for up to one year.
• Subsequent violations: The prohibition may extend to three years.

Do the Actors Have to Appear in Person?

• No: Personal appearance is not mandatory.
• Written explanation: They can submit a written explanation either personally or through a duly authorised representative.
• Documentary evidence: The explanation must be accompanied by relevant documentary evidence.
• Personal hearing: If they wish to be heard personally, they can request a hearing.
• Natural justice: The opportunity for personal hearing is to be provided in accordance with the principles of natural justice.
• Failure to respond: If they fail to respond within the stipulated period, or their response is found unsatisfactory, action may be taken under the Food Safety and Standards Act, 2006.
• Presumption: In the absence of a satisfactory explanation, the FDA may presume that they have nothing further to state.

Key Issues

• Surrogate advertising: The case highlights the difficulty of distinguishing between promotion of a legitimate product and indirect promotion of a prohibited product.
• Brand extension: Use of the same brand identity for permitted and restricted products can potentially create consumer association with the restricted product.
• Celebrity responsibility: Celebrity endorsements can significantly influence consumer behaviour, creating questions regarding endorser accountability.
• Consumer protection: Advertising regulation seeks to ensure that consumers are not misled through indirect or deceptive communication.
• Public health: Regulation of tobacco-related promotion is closely linked with the objective of protecting public health.

Way Forward

• Strict enforcement: Existing laws governing tobacco advertising and misleading endorsements should be effectively enforced.
• Clear guidelines: Regulators should provide clearer standards for determining when brand-extension advertising becomes surrogate advertising.
• Endorser due diligence: Celebrities should undertake adequate legal and factual due diligence before endorsing products.
• Consumer awareness: Greater awareness can help consumers distinguish between genuine product promotion and indirect brand promotion.
• Regulatory coordination: Food safety, consumer protection and tobacco-control authorities should ensure coordinated enforcement.

Conclusion

The Maharashtra FDA action highlights the regulatory challenge posed by surrogate advertising, particularly where a permitted product uses a brand strongly associated with a restricted tobacco-related product. Effective regulation must protect consumer interests and public health while ensuring that advertising restrictions are applied through clear, transparent and legally sustainable standards.

UPSC Mains Practice Question

Q. “Surrogate advertising can undermine the objectives of tobacco-control laws by allowing prohibited products to retain consumer visibility through permissible brand extensions.” Discuss in the context of India’s food safety, consumer protection and tobacco-control framework.