Legal Risks Of Actors, Sportsmen, And Influencers Who Participate In Surrogate Advertisements

The Maharashtra Food and Drug Administration (“FDA”) has reportedly recently issued notices to three prominent actors for participation in an advertisement concerning a duly licenced food product. The FDA reportedly has said that the participation of the actors was controversial or illegal because the advertisement seems to associate the said product with a prohibited product of the same brand, and the appearance of the actors in the advertisement amounted to participation in a surrogate advertisement.

In this article, we will examine whether there is any legal liability associated with the participation of actors, sportsmen, and influencers in advertisements which may have the risk of being characterised as surrogate advertisements.

Surrogate advertisements are regulated under the Consumer Protection Act, 2019. The authority that enforces whether an advertisement is a surrogate advertisement is the Central Consumer Protection Authority (CCPA). The framework for regulation of surrogate advertisements is under the Consumer Protection Act and the Guidelines for Prevention of Misleading Advertisements and Endorsements, 2022 (CCPA Guidelines).

There is no power that the FDA or the Food Safety and Standards Authority of India (FSSAI) has in regulating surrogate advertisements for food products. The FDA and FSSAI can only act against food advertisements that are misleading about the product itself and not against advertisements alleged to create brand associations with a different, unrelated product. In the absence of any explicit powers, any FDA or FSSAI authority claiming or alleging that an advertisement is a surrogate advertisement is in excess of its powers under the relevant laws under which these agencies operate. 

In order for any advertisement to be called a surrogate advertisement, it is the CCPA that should first determine that the advertisement was, in fact, a surrogate advertisement. CCPA Guidelines clarify that merely using the name of a brand or company which may be associated with prohibited goods, products, or services does not render an advertisement to be surrogate.

In summary, there is no risk for actors, sportsmen, and influencers appearing in advertisements of duly licenced food products which may run the risk of being labelled as surrogate advertisements, except under the Consumer Protection Act. The FDA and the FSSAI do not have jurisdiction to impose liability on such persons under food and drug-related laws. The liability, if any, will arise under the Consumer Protection Act. The liability under the Consumer Protection Act may be serious.

In order to avoid any kind of serious liability, the actors, sportsmen and influencers should ensure that they do a “genuine due diligence” of the product and the proposed advertisement and confirm that the product is genuine and independent, even if there is a brand overlap. It is also expected that such persons have actually used the product before endorsing it.