Ritika Bherviya is a third-year law student at Maharashtra National Law University, Mumbai, with research interests in corporate law and emerging legal issues.
Creating recall is the essence of advertising. The most important characteristic of a successful advertisement is not that it just tells the people what the product is, but also gets them to remember what the brand is later. The issue arises when a brand is also linked to the product whose advertisement is banned by law. This is where Surrogate Advertising comes in. In its simplest form, Surrogate advertising refers to the practice where a company promotes a product or service that is legally permissible while using the brand identity or associations of another product whose advertisement is prohibited. For instance: In the Tabacco context, information in an advertisement can be generally about another legal product, such as elaichi, soda or any other product but at the same time contain an imagery or association with a brand with reference to tobacco or pan masala.
It is a significant distinction since tobacco advertising is not just a conventional regulatory problem. Tabacco consumption has serious public health consequences making the prevention of indirect promotion an important objective. The difficulty, however, is that surrogate advertising is meant to work just in the room between what an advertisement looks like as if it promotes and what it ultimately promotes.
This has been made very clear by the recent controversy surrounding Vimal Elaichi. In August 2026, notices are issued to Shah Rukh Khan, Ajay Devgn and Tige Shroff by the Maharashtra Food and Drug Administration issues notices for endorsing Vimal Elaichi. The FDA’s concern is that Vimal Elaichi does not possess a sufficiently independent market identity from the tobacco associated Vimal brand and that its promotion could consequently amount to surrogate advertising. The celebrities have been asked to provide explanations and supporting information.
This isn’t something new. The brand already had previously been the subject of a judicial investigation. In Directorate General of Health Services v. Sam Pan Product Pvt. Ltd. (2024), the Delhi High Court examined whether the use of the brand products Vimal Elaichi could fall under the category of indirect/ surrogate advertising. The Court’s approach was important because it deemed that such an allegation is not to be taken on its own accord but must be examined on the evidentiary level. The recurring nature of controversy raises a larger question: if India already prohibits surrogate advertising, why does proving it remain so difficult? When an advertise is ostensibly for a lawful product, what must a regulator establish before it can legally characterise that advertisement as surrogate advertising?
What the law currently says
India does not lack a legal framework to deal with surrogate advertising. The prohibition is spread across tobacco central law, consume protection law and advertising self-regulation each addressing a different aspect of the problem.
The starting point is Section 5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA). It prohibits the advertising of cigarettes and other tobacco products from participating in an advertisement that directly or indirectly suggests or promotes the use or consumption of tobacco products. The use of the expression “directly or indirectly” is important because it prevents advertisers from avoiding the prohibition simply by keeping the tobacco product itself outside the frame.
The framework was further strengthened by the Guidelines for Prevention of Misleading Advertisements and Endorsements for misleading Advertisements, 2022 issued by the Central Consumer Protection Authority (CCPA). The Guidelines specifically recognise surrogate or indirect advertisements and prohibit advertisements that seek to circumvent a legal prohibition by presenting themselves as advertisements for another product or service. This is particularly relevant where a supposedly lawful product is used to maintain the visibility of a prohibited product or brand.
The Consumer Protection Act, 2019 provides the enforcement mechanism for misleading advertisements. Under section 21, the CPA can direct the discontinuation or modification of a misleading advertisement and impose penalties on manufacturers, advertisers and endorsers in appropriate circumstances. The provision is particularly relevant to surrogate advertising because it brings celebrity endorsers within the regulatory framework and also recognises the importance of an endorser’s sue diligence.
Alongside these statutory provisions is the role of the Advertising Standards Council of India (ASCI), a self-regulatory body for advertising. ASCI’s Guidelines for Qualification of Brand Extension – Product or Service attempt to distinguish a genuine brand extension from a product that may merely be used a vehicle for promoting a restricted category. The guidelines consider factors such as the product’s sales and its relationship with advertising expenditure. However, an important distinction must be made here. ASCI’s criteria are self-regulatory and do not have the same legal status as COTPA or the CPA. They can provide useful indicators for assessing whether a brand extension is genuine but they cannot simply be treated as a statuary test for establishing surrogate advertising.
The legal question, therefore appears comprehensive at first glance. COTPA prohibits direct and indirect tobacco advertising; the CCPA guidelines expressly address surrogate advertising; the CPA creates consequences for misleading advertisements and endorsers and ASCI provides additional industry standards for brand extensions. Yet none of this completely answers the question raised in the Vimal controversy: what evidence is sufficient to establish that an advertisement for a legally permissible product is, in substance an advertisement for a prohibited product?
Where the real gap lies
The existence of these rules does not completely resolve the problem. The difficulty arises when a regulator has to move from suspecting surrogate advertising to proving it. While the law prohibits indirect promotion, it doe not provide a single, ready to use evidentiary test that can be applied to every alleged case of surrogate advertising. This difficulty Is visible in Directorate General of Health Services v. Sam Pan Product Pvt. Ltd. The Delhi High Court touched upon the matters of Vimal Elaichi and examined whether the ‘Vimal Elaichi’ being used over a legitimate product may be judged as indirect/surrogate advertising. The court’s approach was important because it did not treat the mere existence of a common brand identity as conclusive. Whether the advertisement actually amounted to surrogate promotion was a matter that required evidence.
This creates an important distinction. The regulator may therefore have to examine several factual circumstances together like whether the lawful product has an independent market presence, the scale of its sales and distribution, the nature of its branding, its relationship with the prohibited product and other evidences showing the intention of advertisement. These factors may help establish nexus but are not a set of concrete factors that are applicable across all cases. The ASCI Guidelines on Broad Extension attempt to introduce greater objectivity by considering factors such as sales and advertising expenditure. However, ASCI’s framework is self-regulatory. Its criteria therefore cannot be converted into a statutory test or a conclusive proof of surrogate advertising.
The problem is further complicated by the fact that India’s advertising regime is fragmented across different laws and authorities. COTPA addresses tobacco advertising, the CPA and CCPA Guidelines deal with misleading advertisements and endorsers while ASCI operates through self-regulation. Depending on the product and the nature of the alleged violation, other regulatory authorities may also become involved. The result is not that India has no law governing surrogate advertising. The more precise gap is that there is no sufficiently uniform and predictable evidentiary framework explaining how a regulator should establish that a particular advertisement for a lawful product may amount to surrogate advertising. The main question to be answered is thus, where to draw the line between legitimate brand extension and surrogate advertising and how does one show there is a line that has been crossed.
Real World Consequences
Surrogate advertising is not just an issue of who is advertising what; it has consequences beyond that. It limits effectiveness and credibility of enforcement. The first one is that it entails a lengthy regulatory and judicial process. The first case of Vimal Elaichi provides an interesting example of how an allegation of “surrogate advertising” can be bound up with issues about the product’s separate identity, brand registration and the proof of indirect promotion.
The second question is uncertainty for businesses and advertisers. When introducing a legitimate product under an existing brand a company may not know with sufficient certainty when this brand extension will become the subject of allegations of ‘surrogate advertising. This is especially true in cases where a brand carries both restricted and unrestricted products.
The third consequence concerns celebrity endorsers. The 2026 Maharashtra FDA action demonstrates how enforcement can extend beyond the manufacturer to the individuals who give advertisement its persuasive reach. Shah Rulk Khan, Ajay Devgn and Tiger Shroff have been asked to explain their participation in the Vimal campaign. This is in line with the consumer protection framework of Inda, which highlights the role of an endorsers due diligence. Meanwhile, it creates the practical concern: how would an endorser be able to know if the apparent legal use of that brand’s product might be for the sale of an illegal product?
This is a major concern especially since advertising is becoming largely driven by brand recall. The consumer doesn’t always have to be exposed to a brand of tobacco product in order to identify the brand. Exposure to the same name, colours, imagery or celebrity association may provide reinforcement to that recognition. This creates the central practical consequence of the existing framework.
What needs to Change
The answer is not necessarily to create another blanket prohibition. India already has multiple rules dealing with surrogate advertising. The more useful reform would be to make the existing prohibition easier to apply consistently.
Firstly, India needs to clearer statutory criteria for distinguishing genuine brand extensions from surrogate advertisements. The criteria need not create an automatic presumption of guilt. Instead, the law could identify relevant factors such as the independent market presence of the advertised product, its sale and distribution, the proportion of advertising expenditure to sales and extent to which the advertisement reproduces the identity of the prohibited product. This would give regulators a structured framework without making any single factor conclusive. There is already some movement in this direction though ASCI’s brand extension guidelines. Th e problem is that these criteria operate primary within self-regulation and do not provide a uniform statutory standard for government enforcement.
Secondly, there must be more coordination at the regulatory front between the authorities. Surrogate advertising can involve COTPA, consumer-protection law and, depending on the product, other regulatory frameworks. The regulatory framework is presently decentralized and enshrined in various laws and institutions. An integrated mechanism would minimize duplication of costs, maximise advertising consistency, and prevent fragmentation of the regulatory framework for ads. The 2022 CCPA Guidelines were also introduced to enhance guidelines for regulating misleading and surrogate advertising in various forms of advertising.
Thirdly, there needs to be more clarity around the idea of celebrity due diligence. The Consumer Protection Act already gives recognition to the role of endorsers, but what matters is their practical implementation and how it is applied in the case of Vimal. When a celebrity is asked to promote a brand that has both restricted and unrestricted items, then there need to be clearer expectations on what the celebrity will need to verify in order to participate in the campaign. This would help to keep the liability of the endorsers more predictable but not without providing an automatic exemption for the celebrities.
Lastly but not least, enforcement in any case should be based on evidence and be proportionate. The goal shouldn’t be to imply that all legal products linked to tobacco manufacturers are surrogates. On the other hand, advertisers must not be allowed to claim the legal function of the advertised product when the surrounding evidence clearly shows the advertisement is masking the visibility of the prohibited product.
The problem confronting India now isn’t the creation of yet another wide-ranging ban, but the proper boundary between what is acceptable brand extension and what’s against the law. Enforcement can be predictable and effective, as there is a more structured evidentiary system and due-diligence standards are made clearer. The goal should be to stop advertisers from circumventing tobacco restrictions by using lawful products, and for all regulation efforts to be based on science and facts. Ultimately, public-health protection and legal certainty must work together, rather than at the expense of one another.
The problem confronting India now isn’t the creation of yet another wide-ranging ban, but the proper boundary between what is acceptable brand extension and what’s against the law. Enforcement can be made predictable and effective if there is more structured evidentiary system and due-diligence standards are made clearer. The goal should be to stop advertisers from circumventing tobacco restrictions by using lawful products, and for all regulation efforts to be based on evidences. Ultimately, public-health protection and legal certainty must work together and not at the expense of one another.
Leave a Reply