Introduction:

A challenge to alleged surrogate advertising has reached the Bombay High Court, with a Bollywood actor questioning the legality of a show cause notice issued by the Maharashtra Food and Drugs Administration (FDA) over his endorsement of the Vimal Elaichi brand. The dispute raises important questions concerning the distinction between advertising a permissible product and indirectly promoting a prohibited product through the use of a shared brand identity. It also brings into focus the limits of regulatory authority, the requirement of a fair show cause process, and the protection available to individuals against administrative action allegedly taken with a predetermined conclusion.

Actor Ajay Devgn has approached the Bombay High Court challenging the show cause notice issued by the Maharashtra FDA on August 11, 2026. The notice concerns an advertisement for Vimal Elaichi, described as a cardamom-flavoured mouth freshener, which Devgn endorsed in 2024. The FDA alleges that the advertisement, although ostensibly promoting Vimal Elaichi, indirectly promotes Vimal Pan Masala through the use of the brand’s identity and associated promotional elements.

The controversy centres on the regulatory concern that advertisements for products which may lawfully be promoted can sometimes be used to maintain public recognition of other products whose advertising is prohibited or restricted. Such promotional practices are commonly examined under the concept of surrogate or indirect advertising. The concern is that a brand may use an ostensibly permissible product as a means of keeping its identity visible to consumers, thereby indirectly reinforcing the market presence of a different product.

According to the FDA’s notice, the use of the Vimal brand name, together with the advertisement’s presentation, visual elements, dialogue, product name and market identity, may create an association between Vimal Elaichi and Vimal Pan Masala. The authority has therefore sought to examine whether the advertisement amounts to indirect promotion of the pan masala product.

The notice was issued not only to Devgn but also to two other Bollywood actors. In September 2026, Devgn submitted a reply to the FDA, maintaining that his participation was confined to an advertisement for Vimal Elaichi and that he had not endorsed Vimal Pan Masala. He subsequently approached the High Court, contending that the show cause notice was unlawful, arbitrary and issued with a predetermined mind.

In his petition, Devgn has argued that the notice is not a genuine invitation to explain his position but, in substance, reflects a conclusion already reached by the regulatory authority. He has particularly objected to the directions contained in the notice, including the requirement to discontinue the endorsement, remove promotional material and cease further dissemination of the advertisement. He has also challenged the warning that further action could be initiated without another reference or notice if his explanation is not received within the prescribed period or is found unsatisfactory.

The legal framework referred to in the notice is extensive. It includes the Food Safety and Standards Act, 2006, the Food Safety and Standards (Advertising and Claims) Regulations, 2018, and the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011. The FDA has also referred to provisions and guidelines concerning misleading advertisements and endorsements, including the Consumer Protection Act, 2019 and the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. The notice additionally invokes the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, commonly known as COTPA, and the Cable Television Networks (Regulation) Act, 1995, read with the Cable Television Networks Rules, 1994.

The petition is expected to be listed on November 4, 2026, before a division bench comprising Chief Justice Mahesh Chandra Tripathi and Justice Advait Sethna. The matter is therefore at the stage of a challenge to the regulatory notice, and the issues raised by the petitioner remain to be considered by the Court.

Arguments of the Parties:

Devgn has challenged the FDA’s show cause notice primarily on the ground that it allegedly reflects a predetermined conclusion rather than a genuine opportunity to respond to the allegations. According to the petition, although the communication is formally described as a show cause notice, its contents and the directions accompanying it demonstrate that the authority has already formed an adverse view against him.

The petitioner has contended that the notice effectively treats his endorsement of Vimal Elaichi as an instance of surrogate advertising without first properly considering whether the advertisement actually promotes Vimal Pan Masala. His case is that he participated only in an advertisement for Vimal Elaichi, a cardamom-flavoured mouth freshener, and did not endorse the pan masala product identified by the FDA.

The petition disputes the premise that an advertisement for Vimal Elaichi can automatically be treated as an indirect promotion of Vimal Pan Masala merely because the products share the Vimal brand identity. Devgn has maintained that the advertisement concerned the specific product for which he was engaged and has denied that his endorsement was intended to promote the prohibited or restricted product.

A central part of the challenge concerns the nature of the directions issued in the show cause notice. As described in the petition, the FDA has called upon Devgn to immediately discontinue his participation in and endorsement of the advertisement, remove promotional material from platforms under his control, stop its promotion and dissemination, and refrain from providing further assistance in circulating it.

The notice also requires him to furnish information and documents concerning the endorsement arrangement. These include details of the due diligence undertaken by him, documentary material concerning the independent existence of Vimal Elaichi as a product, copies and particulars of the endorsement agreement and related arrangements, and information about the platforms and periods during which the advertisement was disseminated.

Devgn has argued that these directions go beyond merely seeking an explanation. According to him, requiring immediate discontinuation and removal of the promotional material effectively imposes consequences before his response has been properly considered. He has therefore questioned whether the authority can issue directions of this nature while simultaneously describing the communication as a show cause notice.

The petition characterises the notice as an abuse of the process of law, alleging that the authority has proceeded with a premeditated and predetermined approach. It asserts that calling upon the petitioner to explain his conduct becomes an empty formality when the issuing authority has already reached a conclusion, as allegedly demonstrated by the directions contained in the notice.

The petitioner has further alleged that the impugned notice violates Article 14 of the Constitution of India and the principles of natural justice. Article 14 guarantees equality before the law and equal protection of the laws. In the context of administrative action, it also requires public authorities to act fairly, reasonably and without arbitrariness. Devgn’s challenge invokes this constitutional protection to question the manner in which the FDA has exercised its regulatory powers.

The plea also raises concerns regarding the possible impact of the notice on his professional reputation and career. Devgn has asserted that the allegations and directions could cause grave and irreparable harm to his reputation and profession. For a public figure whose professional activities include commercial endorsements, an official allegation of promoting a prohibited product may have consequences extending beyond the immediate advertisement.

Another significant objection relates to the ‘Final Warning’ included in the notice. According to the petition, Devgn has been warned that further action may be initiated against him without any further reference or notice if he does not submit an explanation within the stipulated period or if the explanation is considered unsatisfactory. The petitioner has questioned this aspect as well, contending that it reinforces the impression that the authority has already adopted a particular position and that the opportunity to respond may not be meaningful.

The petitioner’s earlier response to the FDA is also relevant to the dispute. In September 2026, he submitted an explanation maintaining that he had endorsed Vimal Elaichi alone and had not promoted Vimal Pan Masala. His challenge before the High Court therefore concerns not merely the allegation of surrogate advertising but also the manner in which the regulatory authority has framed and pursued the proceedings.

The FDA’s position, as reflected in the show cause notice, is that the advertisement must be examined by considering its overall presentation and the association it may create in the minds of consumers. The authority has not confined its concern to the product name appearing in the advertisement. Instead, it has referred to the use of the Vimal brand identity, visual elements, dialogue, presentation and market association.

According to the notice, even if the advertisement ostensibly concerns Vimal Elaichi, these elements may reinforce consumer recognition of Vimal Pan Masala. The FDA’s concern is that the promotion of the mouth freshener may operate as a means of indirectly maintaining or strengthening the visibility of the pan masala product. It has therefore called upon Devgn to explain why the advertisement should not be examined as surrogate or indirect advertising.

The FDA has also sought information that could assist it in assessing the nature of the endorsement and the product being promoted. Its demand for documents concerning the independent existence of Vimal Elaichi, the endorsement agreement, related arrangements and the advertisement’s dissemination indicates that the authority intends to examine the commercial and promotional context in which the endorsement took place.

The regulatory position thus centres on the distinction between the nominal subject of an advertisement and its possible effect in the marketplace. The FDA’s allegation is that the use of a common brand identity may allow an advertisement for one product to indirectly promote another. The petitioner, in contrast, maintains that his endorsement was specifically for Vimal Elaichi and that the authority has treated the advertisement as unlawful without providing a fair and impartial opportunity to establish his position.

The available case summary does not set out a separate detailed counter-affidavit or a final response from the FDA before the High Court. Accordingly, the authority’s position is reflected here through the allegations and requirements contained in the impugned show cause notice.

Court’s Judgment:

The Bombay High Court has not yet delivered a final judgment on the challenge described in the case summary. The petition is expected to be heard on November 4, 2026, before the division bench of Chief Justice Mahesh Chandra Tripathi and Justice Advait Sethna. Consequently, the allegations made by Devgn and the regulatory concerns raised by the FDA remain matters for judicial consideration.

At this stage, it would be premature to treat the petitioner’s allegations of arbitrariness, mala fides or violation of natural justice as judicially established findings. Equally, the FDA’s allegation that the Vimal Elaichi advertisement amounts to surrogate promotion of Vimal Pan Masala has not been conclusively determined by the High Court. The principal issues will have to be examined in light of the statutory framework, the contents of the notice and the procedure followed by the authority.

Nevertheless, the challenge raises important questions concerning the legal character of a show cause notice and the extent to which a regulatory authority may issue directions before considering the explanation of the person concerned.

A show cause notice ordinarily serves to inform an affected person of the allegations against them and provide an opportunity to explain why the proposed action should not be taken. It is an important procedural safeguard because it enables the authority to consider the affected person’s version before reaching a final decision. The opportunity must be real and meaningful rather than merely formal.

The distinction between a preliminary notice and a final determination is particularly important in administrative proceedings. A notice may communicate the authority’s concerns, identify the provisions allegedly violated and seek relevant documents or explanations. However, the process must not become an exercise in which the outcome has already been decided and the response of the affected person is treated as an unnecessary formality.

Devgn’s petition places this distinction at the centre of the dispute. His objection is that the FDA has not merely asked him to explain the advertisement but has also directed him to discontinue the endorsement and remove promotional material. He argues that these directions demonstrate that the authority has already reached an adverse conclusion before considering his explanation.

The High Court may therefore have to examine whether the directions contained in the notice are merely procedural or whether, in substance, they amount to an immediate adverse determination. The answer would depend on the precise wording of the notice, the statutory powers invoked by the FDA and the stage at which the authority considers itself entitled to impose such requirements.

The principles of natural justice are also likely to assume significance. One of their central requirements is that a person who may be adversely affected by an administrative decision should ordinarily be given a fair opportunity to present their case. Such an opportunity must be meaningful and must be considered by an authority that approaches the matter with an open mind.

The petitioner’s reliance on Article 14 adds a constitutional dimension to this procedural challenge. Administrative authorities exercising statutory powers are required to act fairly and reasonably. Their decisions must be supported by relevant considerations and cannot be arbitrary. Devgn’s allegation is that the FDA’s approach violates these requirements because the notice allegedly reflects a predetermined conclusion and threatens further action without a meaningful consideration of his explanation.

The substantive allegation of surrogate advertising raises a separate question. The FDA’s case, as described in the notice, is that the advertisement must be assessed as a whole rather than by looking only at the product identified in its title or description. The authority has referred to the brand name, visual presentation, dialogue, product identity and market association as factors that may create a link with Vimal Pan Masala.

This approach reflects the broader regulatory concern that advertising restrictions should not be capable of being circumvented through the promotion of a different product carrying the same or a closely associated brand identity. If an advertisement for a permissible product is used in a manner that indirectly promotes a product whose advertising is prohibited or restricted, the regulatory authority may seek to examine its substance and effect.

However, the mere existence of a shared brand name does not, on the information presently available, establish that the particular advertisement is unlawful. The question raised by the dispute is whether the overall content and context of the advertisement support the FDA’s allegation of indirect promotion. That assessment would require consideration of the material relied upon by the authority and the explanation and documents submitted by the person concerned.

The statutory provisions cited in the notice provide the regulatory background for this inquiry. The Food Safety and Standards Act, 2006 establishes the framework for regulating food products and related activities, while the Food Safety and Standards (Advertising and Claims) Regulations, 2018 deal with advertising and claims concerning food. The FDA has also invoked the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011.

The notice further refers to the Consumer Protection Act, 2019 and the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. These provisions and guidelines address concerns relating to misleading promotional practices and the responsibilities associated with advertisements and endorsements. The FDA has also relied upon COTPA and the Cable Television Networks legislation and rules in setting out the regulatory provisions it considers relevant to the alleged surrogate promotion.

The precise applicability of each of these enactments and regulations to the advertisement, the product and the alleged conduct will require examination. Their inclusion in the notice does not, by itself, establish that every provision has been violated. The authority would need to identify the relevant legal requirements and explain how the conduct alleged falls within their scope.

The demand for due diligence records and the endorsement agreement is also relevant to the factual inquiry. Such material may assist the FDA in understanding the nature of the arrangement, the product for which the actor was engaged, the promotional platforms used and the manner in which the advertisement was circulated. The requirement to establish the independent existence of Vimal Elaichi appears connected to the authority’s concern that the product may be used as a vehicle for maintaining the visibility of Vimal Pan Masala.

At the same time, the petition raises the question of how an individual endorser’s role should be assessed. Devgn maintains that his participation was confined to the mouth freshener advertisement. Whether that explanation sufficiently addresses the FDA’s concerns, and what level of inquiry is legally permissible before a final decision is reached, are matters that remain open for consideration.

The ‘Final Warning’ in the notice may also require scrutiny in the context of procedural fairness. The petitioner argues that the possibility of further action without another notice, particularly if his explanation is found unsatisfactory, demonstrates that the authority has already made up its mind. The Court may have to consider whether the warning is consistent with the statutory procedure and whether the petitioner has been afforded an adequate opportunity to respond before any final adverse action is taken.

The petition also highlights the potential consequences of regulatory proceedings for a celebrity endorser. An allegation of indirectly promoting a prohibited product can affect professional reputation and commercial engagements. While reputational consequences do not, by themselves, determine the legality of a regulatory notice, they underline the importance of ensuring that statutory powers are exercised fairly and in accordance with law.

Ultimately, the High Court’s consideration is likely to involve two connected but distinct aspects: whether the FDA has a legally sustainable basis to investigate the advertisement as possible surrogate advertising, and whether the manner in which the show cause notice has been issued complies with the reuirements of fairness and natural justice.

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