Article 1:Due diligence
Why in news: Maharashtra FDA Commissioner Tukaram Mundhe has targeted celebrity endorsements of products allegedly linked to tobacco, raising questions about surrogate advertising, endorser liability and consumer protection.
Key Details
- FDA action: Maharashtra FDA questioned celebrities endorsing Vimal Elaichi, alleging that it promotes tobacco indirectly through surrogate advertising.
- COTPA: The action draws on the Cigarettes and Other Tobacco Products Act (COTPA) Rules, which restrict tobacco advertising and promotion.
- Judicial scrutiny: In DGHS vs Som Pan Products (2024), the Delhi High Court held that the government must prove surrogate advertising.
- Celebrity liability: The Consumer Protection Act, 2019 makes endorsers accountable for misleading advertisements and imposes significant financial penalties.
- Broader concern: The issue extends to unsubstantiated health, educational and financial claims, highlighting gaps caused by India’s fragmented regulatory framework.
Disrupting the Marketing Chain
- Maharashtra FDA Commissioner Tukaram Mundhe has targeted celebrities who promote products linked to tobacco brands.
- This approach challenges the strong role of celebrities in creating brand recall.
- It is important because celebrities often face little of the health or economic consequences associated with the products they endorse.
Issue of Surrogate Advertising
- The FDA argues that Vimal Elaichi, endorsed by Shah Rukh Khan, Ajay Devgn and Tiger Shroff, lacks an identity independent of its association with tobacco.
- Therefore, promoting the product could amount to surrogate advertising of tobacco.
- However, the FDA must establish this link with clear evidence rather than relying only on suspicion.
Judicial Safeguards
- In DGHS vs Som Pan Products Pvt. Ltd. (2024), the Delhi High Court stressed that the government must prove surrogate advertising.
- Mere brand registration does not establish that an advertisement promotes tobacco.
- Similarly, the existence of a legally permitted product does not automatically make every advertisement lawful.
Need for Stronger Regulation
- The FDA should conduct investigations under COTPA and the Food Safety and Standards Act, 2006 that can withstand judicial scrutiny.
- The Consumer Protection Act, 2019 has increased the liability of celebrity endorsers and introduced substantial financial penalties.
- Asking celebrities to explain their due diligence and decision-making is therefore a logical step in enforcement.
Broader Consumer Protection
- The problem extends beyond tobacco to unsubstantiated claims, such as products claiming to “boost immunity”, as well as educational and financial products.
- India’s regulatory framework is fragmented across several Acts and Rules, making enforcement difficult.
- Effective penalties or bans could reduce the space available for surrogate advertising, but the FDA must act fairly to avoid regulatory overreach.
Conclusion
Effective regulation of surrogate advertising is essential to protect public health, particularly given India’s heavy burden of tobacco-related diseases. However, enforcement must be based on clear evidence, due process and proportional penalties. A coordinated regulatory framework can strengthen accountability of manufacturers and celebrities while preventing misleading advertising, without allowing legitimate regulation to become arbitrary regulatory overreach.
Prelims question:
Consider the following statements:
- Cigarettes and Other Tobacco Products Act (COTPA) prohibits direct and indirect advertising of cigarettes and other tobacco products.
- Tobacco products cannot be promoted through sponsorship of events or activities.
Which of the statements given above is/are correct?
- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Answer: c