When a banned product cannot be advertised directly, can its brand still appear through something else?
A celebrity promotes “elaichi”, a company advertises a “mouth freshener”, or a familiar brand logo appears on a completely different product. On paper, the advertisement may be for a legal product. But if the real objective is to keep a banned product in the public eye, the advertisement enters the controversial territory of surrogate advertising.
A recent case involving Vimal Elaichi has once again brought this question into focus. Maharashtra’s Food and Drug Administration issued show-cause notices to Shah Rukh Khan, Ajay Devgn and Tiger Shroff over their alleged role in an advertisement that regulators suspect could indirectly promote Vimal Pan Masala, a prohibited product in the state.
What exactly is surrogate advertising?
Surrogate advertising is essentially the promotion of a restricted or prohibited product through another product, service, brand or activity.
The classic example is a tobacco or alcohol brand advertising an apparently permissible product such as elaichi, soda, mineral water or music CDs while retaining the same brand identity, visual language or promotional appeal associated with the restricted product.
The problem is not merely what the advertisement claims to sell. The deeper question is what the advertisement actually communicates to consumers.
What does Indian law say?
India does not treat surrogate advertising as merely an ethical issue.
The Consumer Protection Act, 2019 provides the broader framework against misleading advertisements, while the CCPA’s Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 specifically prohibit surrogate advertising. The Department of Consumer Affairs lists these guidelines as part of India’s consumer-protection framework.
The guidelines define surrogate advertising broadly. An advertisement cannot circumvent a legal restriction on advertising a particular good or service by presenting itself as an advertisement for another unrestricted good or service.
This is important because it shifts the focus from the label attached to the advertisement to its actual promotional effect.
The celebrity is not automatically outside the law
The 2022 CCPA framework also places responsibilities on endorsers. An endorsement cannot simply be treated as harmless because the celebrity claims that they were advertising a different product.
The guidelines require due diligence in endorsements and provide for penalties for violations. The CCPA can impose penalties of up to ₹10 lakh for a first contravention on manufacturers, advertisers or endorsers, with higher penalties for subsequent violations. It can also restrict an endorser from making endorsements for a specified period.
Maharashtra’s stricter position
The issue becomes particularly significant in Maharashtra because the state has prohibited the manufacture, storage, distribution, transport and sale of certain tobacco-containing products.
This creates a regulatory paradox: if the underlying product cannot legally be promoted, can its brand identity nevertheless be promoted through another product?
The answer increasingly appears to be no, particularly where the supposedly legal product functions as a vehicle for maintaining the visibility of the prohibited brand.
The law is not new, but enforcement is evolving
The Directorate General of Health Services had issued notices in 2018 concerning alleged indirect advertising of tobacco products, showing that authorities have been concerned about this practice for years.
What is changing is the willingness of regulators to scrutinise the entire advertising ecosystem: manufacturers, advertising agencies, brand owners and celebrities.
That is crucial in the age of social media, where a brand can achieve enormous visibility without explicitly displaying the prohibited product.
What can India learn from the world?
The international experience provides an important lesson: partial bans are often insufficient.
The World Health Organization’s Framework Convention on Tobacco Control treats tobacco advertising, promotion and sponsorship broadly. Its Article 13 guidelines recommend comprehensive restrictions because companies can shift promotional expenditure from prohibited forms of advertising to indirect methods such as brand stretching, brand sharing, sponsorship, product placement and digital marketing.
The WHO specifically recognises brand stretching and brand sharing as forms of indirect tobacco promotion.
1. Regulate the brand, not merely the product
One of the strongest international lessons is that regulators should examine whether a supposedly legal product is being used primarily to promote a prohibited brand.
The UK’s advertising rules provide a useful example. Where a non-tobacco product shares a name, emblem or other feature with a tobacco product, additional safeguards apply. The advertisement cannot reference or promote smoking and cannot use design elements that could associate it with the tobacco product.
India could adopt a similarly explicit test.
2. Look beyond television
Modern surrogate advertising is no longer limited to television commercials.
The WHO’s framework covers print, television, radio, films, games, internet and mobile communication, as well as brand-marking, sponsorship and point-of-sale promotion.
Therefore, enforcement should extend to:
• television and OTT platforms;
• social-media influencers;
• YouTube and short-video platforms;
• sports sponsorships;
• outdoor advertising;
• celebrity appearances;
• brand merchandise;
• digital campaigns; and
• event sponsorship.
A ban that covers only conventional advertising can easily be bypassed.
3. Examine the commercial reality
A particularly useful regulatory principle is to ask whether the advertised substitute product is genuinely being marketed as an independent product.
India’s draft CCPA framework on surrogate advertising proposed examining factors such as whether the unrestricted product is produced and distributed in reasonable quantities relative to the scale of advertising, whether the advertisement contains indications linking it to the restricted product, and whether the overall presentation makes it an indirect advertisement.
This is a sensible approach because it prevents companies from simply creating a nominally legal product solely to keep a prohibited brand visible.
4. Make celebrity due diligence meaningful
Celebrities possess enormous influence, particularly among young audiences.
The Indian regulatory framework already recognises the importance of due diligence by endorsers.
International best practice suggests that this principle should be strengthened through contractual transparency. Before accepting an endorsement, celebrities and agencies should verify:
• the complete product portfolio of the brand;
• whether the brand sells prohibited products;
• whether the advertised product genuinely exists as an independent commercial product;
• the registration and ownership of the brand name;
• the intended media strategy; and
• whether the advertisement could reasonably create an association with a prohibited product.
“I did not know” should not become the default defence for high-profile endorsements.
5. Close the digital loophole
The WHO warns that modern tobacco marketing increasingly uses indirect and sophisticated promotional techniques. A comprehensive ban must therefore cover digital and cross-border advertising as well.
This is particularly relevant for India because a television advertisement can quickly become a social-media reel, meme, influencer post or YouTube clip.
The regulator therefore needs to regulate the campaign, not merely the individual advertisement.
The larger public-health question
At its heart, the surrogate-advertising debate is about more than advertising law.
The WHO notes that tobacco promotion can associate tobacco with glamour, success and entertainment, and that exposure to tobacco advertising can influence young people. It therefore recommends comprehensive bans covering both direct and indirect promotion.
This explains why celebrity endorsements attract particular attention.
When a famous actor repeatedly appears alongside a particular brand identity, consumers may remember the brand even if the advertisement technically displays another product.
That is precisely why the legal test should not stop at the words spoken in the advertisement.
The way forward for India
India already possesses important legal tools through the Consumer Protection Act, the CCPA advertising guidelines, tobacco-control legislation and food-safety regulations. The challenge is coordination and enforcement.
A stronger framework could include:
First, a unified definition of surrogate advertising across relevant laws.
Second, a clear brand-association test based on visual identity, trademarks, advertising history, product portfolio and commercial reality.
Third, mandatory due diligence for celebrities, advertising agencies and media platforms.
Fourth, stronger monitoring of digital and influencer advertising.
Fifth, meaningful penalties for repeat offenders.
Finally, greater transparency regarding the actual products being advertised and the companies behind them.
Conclusion
Surrogate advertising survives because it exploits the space between what an advertisement legally claims to promote and what it practically succeeds in promoting.
The Vimal Elaichi controversy illustrates why that distinction matters. The Maharashtra FDA notices show that regulators are increasingly willing to question whether an apparently permissible advertisement is actually functioning as an indirect promotion of a prohibited product.
The international lesson is even clearer: if the objective of an advertising ban is public health, restricting only the obvious advertisement is not enough.
The most effective regulatory approach is one that follows the brand, examines the commercial reality and covers direct as well as indirect promotion.
In the end, the real question is not simply “What product does the advertisement show?”
It is:
“What product does the advertisement make consumers remember?”
That is where the future of India’s fight against surrogate advertising will ultimately be decided.
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