Lucknow: Should Padma awardees endorse ‘surrogate’ advertising, and if so, should they be held liable for ‘misleading’ the public? These are questions being raised as a consequence of recent litigation involving big-ticket actors and pan masala makers.
On 8 December, the central government through deputy solicitor general S.B. Pandey informed the Allahabad High Court that the Central Consumer Protection Authority (CCPA) issued show cause notices to actors Shah Rukh Khan, Akshay Kumar and Ajay Devgn, asking them to explain as to why action should not be initiated against them for endorsing ‘Vimal Elaichi (cardamon)’ — a product sold by Vimal Pan Masala Company.
The government made the submission during a hearing in a contempt petition filed by a Lucknow-based lawyer alleging non-compliance of a court order issued last year on his petition demanding action against actors, including Padma awardees, for “indulging in advertisements/endorsements which are harmful to the health of the public at large”.
During the hearing of the contempt petition earlier this month, the deputy solicitor general submitted that “for disposal of similar/identical issues, a special bench is to be constituted before the apex court by the chief justice of the Supreme Court and the issue in question is likely to be adjudicated by the apex court”.
The high court then deferred hearing in the contempt proceedings for five months.
Petitioner Moti Lal Yadav had in his petition last year sought guidelines for “dis-conferment of the (Padma) awards in case an awardee is not found conducting himself appropriately”.
Further, the petitioner had asked that “Padma awardees be directed to deposit the entire amount earned by them from such advertisements and an equal amount be also ordered to be deposited by them in a relief fund of the Government of India”.
The court had then directed Yadav to approach the competent authority in the central government in this regard. Pursuant to his representation, Yadav told the court in October this year that though the government had on behalf of CCPA issued notices to pan masala makers, the notices “won’t serve the purpose in terms of the concern of the writ court”.
“Actors like Amitabh Bachchan, Akshay Kumar, Ajay Devgn, Saif Ali Khan and Ranveer Singh indulge in misleading advertisements. Publicising gutkha products is illegal, they were publicising them…I filed the (contempt) petition on 22 September (2023) which was accepted by the (high) court,” petitioner Moti Lal Yadav told ThePrint.
He added that he had “demanded that the Padma awards conferred on Amitabh Bachchan, Akshay Kumar, Shah Rukh Khan and Saif Ali Khan be withdrawn and a fine of Rs 50 lakh be imposed on each of the companies and the actors involved”.
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Surrogate advertising & what HC said
Surrogate advertising is a form of advertising used to promote products or services that cannot be advertised owing to prohibition by law. These largely include cigarettes, chewing tobacco and alcohol. In his petition, Yadav had argued that it was not in the public interest for celebrities, especially Padma awardees, to endorse products that can be harmful.
Issuing an order in the case on 22 September, 2022, the high court asked Yadav to approach the competent authority by way of making an appropriate representation. It also stated that he may take recourse “for redressal of the grievances relating to violation of consumer rights/unfair trade practices/false and misleading advertisement”.
The high court went on to add that ads of tobacco and related products is banned under Cigarettes and Other Tobacco Products Act (COTPA), 2003.
“In case the petitioner approaches the aforesaid authorities, grievances raised by him shall appropriately be attended to in accordance with law, with expedition,” read the order.
After hearing Yadav’s contempt petition in which he alleged non-compliance of the high court order from last September, the bench noted that he approached the cabinet secretary and the chief commissioner, CCPA, via a detailed representation on 15 October, 2022, but “till date no decision has been taken by the authorities in compliance of the order”.
Issuing notices to all parties, the high court had listed the matter for 9 October while asking them to explain “why compliance of the order dated 22 September, 2022, passed in that writ had not been done in letter and spirit”.
During the hearing of Yadav’s contempt petition on 9 October, the deputy solicitor general informed the court that notices had been issued by an undersecretary “on behalf of CCPA to Vimal Pan Masala on March 14, 2023 and Kamla Pasand and Ashok and Company Pan Bahar Ltd on September 1, 2023, respectively”.
The cabinet secretary was later removed as one of the parties in the contempt petition at the deputy solicitor general’s request.
Prime facie ‘surrogate & misleading’
In the show cause notices issued to actors Shah Rukh Khan, Akshay Kumar and Ajay Devgn by CCPA commissioner Anupam Mishra, dated 16 October, 2023 — copies of which are with ThePrint — the consumer protection watchdog had cited Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.
The guidelines prohibit “surrogate advertisement or indirect advertisement” for “goods or services whose advertising is otherwise prohibited or restricted by law, by circumventing such prohibition or restriction and portraying it to be an advertisement for other goods or services the advertising of which is not prohibited or restricted by law”.
Further, the notice cited paragraph 13 of the guidelines which call for “due diligence” to be carried out for “endorsement of advertisement”.
The paragraph reads thus: “Any endorsement in an advertisement must reflect the genuine, reasonably current opinion of the individual, group or organisation making such representation and must be based on adequate information about, or experience with, the identified goods product or service and must not otherwise be deceptive.”
Widely aired on TV and other platforms, the ad featured three of the actors promoting Vimal Elaichi, which is identified as a ‘mouth freshener made from cardamom seeds and coated with silver’. The maker, Vimal Pan Masala Company, describes itself as “India’s top most pan masala and tobacco manufacturing and exporter agency”.
“…whereas it has come to notice of CCPA that an advertisement of ‘Vimal Elaichi’ is being telecast in various platforms including newspaper, YouTube, television and social media handles with a tagline ‘Bolo Zuban Kesari’. Further, under the same brand ‘Vimal,’ the company is engaged in manufacturing and distribution of pan masala, gutkha, etc which contains tobacco,” read the show cause notices issued to the three actors.
Adding, “However, it is observed that the company is using ‘Vimal Elaichi’ advertisement as surrogate to its other products containing tobacco and misleading consumers since products containing tobacco are also sold under the same brand name.”
“Considering the aforementioned facts and provisions or law, the alleged advertisement prima facie appears to be surrogate and misleading advertisement as provided under the Consumer Protection Act, 2019,” read the show cause notices.
Granting the three actors 15 days’ time, the notices requested them to “show cause as to why action under the Consumer Protection Act, 2019, against them as endorsers of ‘Vimal Elaichi’ may not be initiated for indulging in surrogate and misleading advertisement”.
Under the scope of the Consumer Protection Act, 2019, CCPA can impose a penalty of up to Rs 10 lakh on makers, advertisers and endorsers if they are found guilty of taking part in a misleading ad campaign. For subsequent offences, this fine can go up to Rs 50 lakh.
A public figure found guilty of being part of a misleading ad can also be prohibited from endorsing any other brand for up to one year, which can be extended for up to three years for subsequent offences.
Besides the ad for Vimal Elaichi, the petition filed by Yadav last year also mentioned an ad for Kamla Pasand “silver coated elaichi” featuring actors Amitabh Bachchan and Ranveer Singh.
Bachchan, however, withdrew from the ad in October 2021 after an organisation campaigning against tobacco usage approached him in this regard. At the time, he said he did not know that the ad fell in the purview of surrogate advertising. In November 2021, Bachchan had sent a legal notice to the maker of Kamla Pasand Pan Masala — citing the termination of his contract to ask the brand to desist from airing the ad featuring him.
(Edited by Amrtansh Arora)
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seems to be a foolish case in itself… actors are promoting vimal elaichi not other products from vimal… surprised how can courts entertain such a case? courts have so much of free time?