Vimal Elaichi ad row: Delhi High Court reserves order on notices to Shah Rukh Khan, Ajay Devgn

The LLP company challenged the showcause notice on the ground that being prohibited from promoting its product — by taking coercive action against the brand ambassadors — causes irreparable harm to the company and infringes on its fundamental rights to conduct business.

According to the company, the brand ambassadors are engaged “to promote only the cardamom product” under the Vimal brand “and no other product”.

“Apart from cardamom, the only other product manufactured, but never promoted directly or even indirectly, under the brand VIMAL by the petitioner is pan masala not containing chewing tobacco,” the company said in its petition.

The Centre’s Ministry of Health and Family Welfare was also made a party in the case.

Its counsel Rukhmini Bobde on Monday opposed the plea on the ground of jurisdiction, submitting that the appropriate jurisdiction would lie in Maharashtra given that the FDA’s action has stemmed from there, and not Delhi.

The company has argued that the food and drug administrators operate under the ministry’s jurisdiction, which in turn is based in Delhi.

‘No pan masala promotion’

The company has further pointed out that the showcause notice was sent “only to the brand ambassadors despite the fact that the petitioner alone is going to suffer irreparably due to any action taken” by the FDA.

The company has also denied allegations of promotion of pan masala in Maharashtra, emphasising that it is compliant with the law which prohibits manufacture, storage, transportation, distribution and sale of pan masala in the state. It also said it is compliant with the Supreme Court’s directive which has banned pan masala containing chewing tobacco since 2013.

It has also denied allegations of surrogate advertisement. In its plea, the firm said that it is “not even remotely trying to associate the mind of the consumer to any product apart from Elaichi in the ad campaign… Much less, to a product which is forbidden to be even transported and sold in Maharashtra.”

What the Maharashtra FDA said

The FDA, in its August 11 notice, had flagged an ad of Vimal Elaichi on YouTube, adding that it “prima facie appears that the advertisement promotes the VIMAL brand, which is mainly associated with pan masala…”

The showcause notice had called on the three actors and brand ambassadors of Vimal Elaichi to “immediately discontinue” their participation in the ads; to “immediately remove the said advertisement and promotional content” from the actors’ official social media handles, websites and other digital platforms under their control or cease its promotion and dissemination; and to not provide any further cooperation or assistance in the broadcasting, publication, dissemination or promotion of the said advertisement in any form.

While issuing a final warning, the FDA had also sought a written explanation from the actors as to why legal action should not be initiated against them.