Is Tukaram Mundhe’s notice to SRK, Ajay Devgn legal? Zubaan kesari, matter in grey zone

The Maharashtra FDA is within its legal authority to issue show-cause notices to celebrities over their alleged involvement in surrogate advertisements for a pan masala brand prohibited in Maharashtra, Bombay High Court advocate Sankalpa Rajpurohit told India Today Digital.

But the legalities in this case are more nuanced.

The notices issued to Shah Rukh Khan, Ajay Devgn and Tiger Shroff are based on provisions of the FSS Act.

It was enacted in 2006 to lay down “science-based standards for articles of food” and regulate their “manufacture, storage, distribution, sale and import.” Its central purpose is to ensure the availability of “safe and wholesome food for human consumption.” The Act also established the FSSAI, India’s food-safety regulator.

Rajpurohit said the operative provision is Section 53 of the FSS Act, 2006. “Section 53 penalises any person who publishes, or is a party to the publication of, a misleading food advertisement,” he said.

However, Rajpurohit clarified that the FDA itself cannot levy the Rs 10-lakh penalty. “The penalty can only be imposed by an Adjudicating Officer of at least the rank of Additional District Magistrate under Section 68 [FSS Act, 2006],” he said, adding that the order can be challenged before the Food Safety Appellate Tribunal.

Also, the Food Safety Act does not specifically mention endorsers or brand ambassadors, unlike the Consumer Protection Act, which clearly defines an “endorser”. Treating an actor as “a party to the publication” is a possible interpretation of the law, but it isn’t a settled one. In this case, the FDA is testing a legal argument rather than relying on an established one.

Bombay-based advocate Rajpurohit emphasised that while there are these legal technicalities, it is important to remember that the notice is only a show-cause notice.

India Today Digital approached Santosh Kamble, Joint Commissioner, Food, FDA Mumbai, for comment, but did not receive a response. The story will be updated as and when he responds.

MULTIPLE LAWS CAN OPERATE SIMULTANEOUSLY IN CASE OF SURROGATE ADS

Addressing the jurisdictional framework, Rajpurohit emphasised that in the case of surrogate advertising, multiple statutory bodies can operate concurrently. It can therefore involve multiple laws, including the Consumer Protection Act, 2019, under which the Central Consumer Protection Authority (CCPA) functions, and the Cigarettes and Other Tobacco Products Act (COTPA), which regulates tobacco products in India, including prohibition, advertising and sale.

So, can action under one law prevent another regulator from stepping in? Rajpurohit said that is not how the framework works.

“There is an overlap — the Consumer Protection Act operates in addition to, and not in derogation of, other laws, so both the FDA and the CCPA can proceed. The FSS Act’s overriding effect applies only to other food laws, so it doesn’t displace the CCPA. What the FDA has done is choose the statute it actually administers,” Rajpurohit told India Today Digital.

The lawyer also said the notices issued to Shah Rukh Khan, Ajay Devgn and Tiger Shroff are based on provisions concerning people who publish or are party to the publication of an advertisement. He added, “Anyone who publishes, or is a party to the publication of, a misleading food advertisement is liable under Section 53 of the FSS Act.”

The FDA, Rajpurohit said, might be seeking information about the actors’ involvement in the advertisements, including their contracts and whether they knew the advertisements could function as surrogates for banned products. The current notices could therefore serve primarily as a fact-finding exercise.

FDA CAN’T ORDER SHAH RUKH, AJAY, TIGER TO TAKE DOWN SOCIAL MEDIA POSTS

In the same notice, the FDA has laid out eight points it expects the three actors to act on immediately. Among them is “immediately removing the advertisement and promotional content from their social media handles.”

However, Rajpurohit drew a line between the FDA’s regulatory powers and the power to order social-media takedowns. Asked whether the FDA could direct celebrities to remove all posts, he said, “They can ask for a takedown. They cannot order, and they certainly cannot order every post. The Food Safety Act’s response to a misleading advertisement is a penalty… not an administrative takedown.”

“Every coercive advertising remedy in that framework [the food safety framework] runs against food business operators and is enforced through the licence, and an actor doesn’t hold a licence. The power to direct discontinuance of an advertisement does exist in Indian law — it’s Section 21 of the Consumer Protection Act, and it belongs to the CCPA,” Bombay High Court advocate Sankalpa Rajpurohit explained.

It must be noted that direct blocking/takedown orders of online content fall under Section 69A of the Information Technology (IT) Act, 2000, executed by designated central officers, or through court orders. The FSSAI or the FDA is not an authorised blocking agency under the IT Act.

“So the notice is on firm ground on who it targets, and on shakier ground on what it directs,” the Bombay High Court advocate also said.

SHOULD MUNDHE’S FDA HAVE QUESTIONED VIMAL INSTEAD OF ACTORS ENDORSING THE BRAND?

The FDA’s allegation hinges on the idea of surrogate advertising.

Surrogate advertising is generally understood as a situation where a brand associated with a restricted or prohibited product promotes another product under the same or a closely associated brand identity, effectively keeping the prohibited product visible to consumers.

To determine if an advertisement is surrogate in nature, regulators might look at factors such as the branding, packaging, slogans and visual identity used, the celebrities associated with it, and how closely the advertised product is linked to the prohibited one.

The Supreme Court advocate, who spoke to India Today Digital seeking anonymity, explained, “Instead of issuing notices to the celebrities, the FDA should first have sought an explanation, and supporting evidence from Vimal. If the allegation is that Vimal Elaichi is merely a surrogate for pan masala, then the manufacturer is in the best position to establish whether the elaichi is actually being sold and marketed as a standalone product. What information would Shah Rukh Khan, Ajay Devgn or Tiger Shroff have about the company’s sales or distribution?”

The distinction is particularly important because Maharashtra has prohibited the manufacture, storage, distribution, transportation and sale of gutkha and pan masala containing tobacco or nicotine and several similar tobacco- and areca-nut products under its food-safety powers.

“The Maharashtra FDA’s jurisdiction is limited to Maharashtra, where pan masala products containing tobacco have already been prohibited for years. So what exactly is the purpose of this notice? If the objective is to stop the promotion of a prohibited product, it also raises the question whether such a product is continuing to be sold in the state despite the prohibition. If that is happening, the notice inevitably puts the spotlight back on the enforcement authorities and their ability to implement an order that has been in place for years,” the Supreme Court advocate added.

Source : https://www.indiatoday.in/india/story/maharashtra-fda-vimal-elaichi-ad-shah-rukh-khan-ajay-devgn-surrogate-advertising-pan-masala-2973059-2026-08-19