From Whiskey To Weight-Loss Drugs: Rethinking Surrogate Advertising In Pharma

Battling concerns that a third of the Indian population will become obese by 2050, the Central Drugs Standard Organisation issued warnings to pharmaceutical companies in early 2026.^[1The regulator has forewarned entities about their indirect promotion disseminated in the guise of disease awareness campaigns and social media collaborations featuring influencers and Bollywood actors regarding their weight-loss drugs. These campaigns focus on highlighting the efficacy of medicine or pharmaceutical therapy in the country's growing fight against obesity.

Although the advertisements have rarely been marked by clear identification and naming of specific drugs, there remains potential for the campaigns to result in indirect creation of consumer demand for prescription drugs. The advisory issued by the drug regulator marks a significant shift in the regulatory approach for advertisements in India. Commonly, the concept of surrogate advertisements has been confined mainly to the alcohol and tobacco industries; the current scenario suggests inclusion of the pharmaceutical industry within the ambit of the previously restricted concept. The advisory, therefore, raises questions as to whether the awareness campaigns and social media collaborations stimulating demand for prescription medicines should be covered under surrogate advertisement regulations.

Legal Framework governing Surrogate Advertisements

Surrogate Advertisments are regulated through an arrangement of statutory restrictions and self-regulatory guidelines. While Section 6 of the Cable Television Networks (Regulation) Act 1995^[2] prohibits advertisements that violate the prescribed advertising code, the detailed restrictions are in Rule 7, which permits brand extension advertisements when the enumerated conditions are fulfilled by the manufacturers.

The conditions under Rule 7 include avoiding any visual or verbal reference to the prohibited product with the language, layout or presentation emulating the styles associated with such products. The focus in such advertisements should be centred exclusively on the product being promoted. Furthermore, the companies are mandated to demonstrate that the production of advertised products is proportional to the expenditure incurred for advertisements, supported by a certificate from a Chartered Accountant. The advertisements are also required to be certified by the Central Board of Film Certification (CBFC) as suitable for unrestricted public exhibition before their broadcast.

ASCI guidelines for Surrogate Advertisements

Apart from the statutory framework, surrogate advertisements are also self-regulated by industry standards. The ASCI Guidelines^[3] under Chapter 3 deal with harmful products, and Section 3.6 discusses the need for brand extensions to be genuine in indirect advertisements, outlining factors to be considered. These guidelines complement Rule 7 of CTNR 1994^[4] by setting measurable objectives for annual sales turnover categories at the national and regional levels. The production should be supported with genuine and proportionate production and market presence in consonance with the scale, reach, and medium of the advertisement.

Newly launched brands further require satisfying alternative thresholds of making fixed asset investments of not less than ₹10 crore exclusively for the brand extension and showing a turnover exceeding 10% of the turnover of the same brand in the restricted category.

The CCPA's Guidelines 2022,^[5] aid this framework by completely prohibiting surrogate advertisements for prohibited goods under section 6.

Judicial and Regulatory Approach

Indian courts and regulatory bodies have frequently examined the burgeoning cases of surrogate advertisements attaining an acquired meaning by promoting prohibited products as secondary goods.

One such notable case includes contention to prevent Vijaya Mallya, the former owner of IPL franchise Royal Challengers Bangalore, from being named such due to the whisky brand promoted by the former owner under the label of “Royal Challenge.”^[6] The court refrained from doing so, citing a sufficient difference between the two names and that any likelihood of association would be limited to existing consumers of the product. In another matter, regarding advertisement in print media for McDowell's Diplomat Cologne^[7] as a surrogate for its whiskey brand by the same name before MRTP. It was argued that the caption with a picture of actress Dimple Kapadia stating, “What makes him my choice is his choice… Diplomat”, was deemed to give a misleading impression that it was promoting the quality and usefulness of the whiskey. However, the commission noted that the expression 'Cologne' was clearly mentioned on the bottle, further increasing the improbability that consumers would consider celebrities would be attracted to them merely by using a particular product, and that it was merely a case of puffing up.

In contrast, the case of surrogate advertisement was upheld in United Breweries Ltd. v Mumbai Grahak Panchayat^[8] where advertisements for soda, upon investigation, revealed little market presence for the products. The advertisement instead highlighted the brand names and slogans associated with the alcoholic beverages, resulting in effective indirect promotion of liquor. Similarly, in TV Today Network Ltd. v. Union of India,^[9] the court addressed broadcasting of advertisements by the Appellant News channels. The use of brand logos and failure to obtain certifications from CBFC were held to be violative of advertising rules, emphasising compliance with regulatory requirements. These cases reflect the continued contentions on the legality of surrogate advertisements depending on their genuine commercial presence and elicitation of restricted products amongst consumers.

The Pharmaceutical Dimension and Weight-loss Drug Controversy

The statutory framework thus far equipped to deal with alcohol and tobacco products is now exposed to application in the pharmaceutical sectors with the advent of technology, rise in pharmaceutical therapy, and influencer-led campaigns. The 2026 advisory marks the culmination of these developments, with the drug regulator cautioning over purported social campaigns led by influencers and Bollywood figures permeating the social media algorithms. Although the products are not directly named, the likelihood of consumer recall is a serious concern, aggravated further by the dissemination of weight loss drugs without medical supervision. This is especially concerning when patents for prominent manufacturers of these drugs are to expire in late march consequently flooding domestic markets with cheap, generic and imprecise drugs supported by scant research on their potential health effects.^[10]

Under the Drugs and Cosmetics Act, 1940 and Rules, prescription drugs cannot be directly advertised to consumers. The promotional content disguised as awareness campaigns and lifestyle videos undermines the regulatory framework by incentivising demand for these medicines. Added to this predicament is the emergence of influencer marketing, whereby health and fitness influencers often indulge in curating content based on personal experience, diet tips and sharing medical treatment history with viewers. Ostensibly being educational and experience-based, they may also take the shape of indirect promotions. Recognising these concerns, the Advertising Standards Council of India has recently emphasised greater transparency and clearer disclosure of sponsored content or collaborations with market entities in their social media posts. However, the challenges persist with influencer marketing being centred on lifestyle narratives and storytelling, making indirect advertisement harder to detect.

Therefore, the recent scrutiny suggests a shift in the nature of digital advertising and the detection of surrogate advertisements. Regulators today are faced with the dilemma of ensuring that awareness campaigns do not translate into advertisement tools while concurrently preserving the right to impart public health education needed to deal with the vice of obesity.

The growing scrutiny of weight loss drug promotion reflects the broadening of the concept of surrogate advertisements to include more covert forms of marketing in the pharmaceutical sector. This introduces additional complexities as medicines require deliberate efforts to raise awareness for public health purposes. Stringent qualifications and interpretations may have an impact of worsening the legitimate efforts needed to combat the obesity epidemic.

Hence, neccessity of the digital age calls for clearer guidelines for the regulation of advertisements of products with medicinal properties and adapting regulatory tools to monitor the digital space for their dissemination. The 2026 advisory serves as a reminder that surrogate advertisements in India are no longer confined to the traditional marketing mediums and have transcended to the digital sphere, mandating a relook at the regulatory frameworks to balance public health awareness and consumer protection.

End Notes & References:

1. Anonna Dutt and Anuradha Mascarenhas, “Lancet study says a third of India will be obese by 2050: What's driving the obesity epidemic?” The Indian Express, Mar. 4, 2026. ↑

2. The Cable Television Networks (Regulation) Act, 1995 (Act 7 of 1995). ↑

3. Advertising Standards Council of India, The Code for Self-Regulation of Advertising Content in India. ↑

4. The Cable Television Networks Rules 1994 ↑

5. Central Consumer Protection Authority, Guidelines on Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022 ↑

6. “Court rejects plea against 'Royal Challengers'”, The Hindu, Oct. 9, 2016, available at - https://www.thehindu.com/todays-paper/tp-national/Court-rejects-plea-against-lsquoRoyal-         Challengersrsquo/article15212138.ee ↑

7. (1997) 89 Comp Cas 354 ↑

8. 2006 SCC OnLine NCDRC 90 ↑

9. 2023 SCC OnLine Del 8360 ↑

10. Sambhav Kumar, “50+ Branded Semaglutide Generics To Enter India As Diabetes Drug Patent Expires In March 2026” NDTV, Mar. 16, 2026. ↑

Author is a Law student at University School of Law and Legal Studies, GGSIPU, New Delhi. Views are personal.