In a significant development regarding misleading medical advertisements, the Supreme Court of India has highlighted the importance of the Drugs and Magic Remedies (Objectionable Advertisements) Act and stressed the necessity of establishing a mechanism that allows citizens to file complaints against such ads.
A bench comprising Justices Abhay S Oka and Ujjal Bhuyan reviewed the matter during the hearing of a case filed by the Indian Medical Association. The Court directed Senior Advocate Shadan Farasat, who is acting as Amicus Curiae, to submit a detailed note on the implementation of the Act by the next hearing date.
Justice Oka made strong remarks regarding the lack of a structured grievance redressal system under the Drugs and Magic Remedies Act:
"Under that Act, machinery has to be established first. This is one of the Acts of most vital importance. Place your note on record... we will pass comprehensive directions. We will direct that the entire machinery must be set up. Prosecution must be initiated. Some grievance redressal mechanism has to be there. If a citizen wants to complain, how will they do it? We will direct the creation of some dedicated phone lines or something so that people can file complaints. That is one area that should have been dealt with earlier. It is very important."
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The Court further asked the Amicus Curiae to elaborate on the provisions of the Drugs and Magic Remedies Act, the necessary compliance measures, and whether the required enforcement mechanisms are in place across all States and Union Territories.
Previously, on May 7, 2024, the Supreme Court directed all State/UT governments to submit affidavits from their Licensing Authorities regarding the action taken since 2018 against misleading advertisements violating the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, the Drugs and Cosmetics Act, 1940, and the Consumer Protection Act, 2019. The Court later sought explanations for the lack of penalties and enforcement.
During the latest hearing, Senior Advocate Farasat informed the Court that there had not been a specific directive to States and UTs concerning the Drugs and Magic Remedies Act. Consequently, the Court decided to issue comprehensive directions on March 7.
The Court examined compliance with its previous orders concerning Rule 170 of the Drugs and Cosmetics Rules, 1945 by various states, including Jharkhand, Karnataka, Kerala, Madhya Pradesh, Puducherry, and Punjab.
Jharkhand
The state counsel argued that no manufacturer in Jharkhand had applied for permission under Rule 170. However, the Court found that the state failed to confirm whether any advertisements governed by Rule 170(2) were being published without due procedure. The Court directed Jharkhand to file a better affidavit after verifying compliance.
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Karnataka
The Karnataka state counsel informed the Court that no prosecutions were initiated in 25 cases of misleading medical ads due to missing material details like license numbers. Rejecting this justification, the Court directed Karnataka to identify the advertisers and ensure compliance:
"According to us, these are only excuses given by the State of Karnataka. They have their own police machinery, cyber cell, etc. Therefore, it's very easy for them to find out sources of these ads, provided there's will on the part of the state to do so," remarked Justice Oka.
Kerala
The Court did not find it necessary to issue any directions for Kerala, as the state appeared to be properly implementing Rule 170.
Punjab & Madhya Pradesh
The Punjab government recently filed an affidavit, which Senior Advocate Farasat had not reviewed yet. The Court decided to examine it on the next hearing date. Similarly, the affidavit from Madhya Pradesh will also be considered later.
Puducherry
Initially, the Court issued a notice to the Chief Secretary of Puducherry for failing to report compliance. However, after the appearance of a legal representative, the Court withdrew the notice and allowed time for the UT to file an affidavit.
During the hearing, the Andhra Pradesh counsel sought leniency, citing an extension until the end of the month to file an affidavit. However, the Court refused to withdraw its observation on the state's non-compliance:
"We could have shown magnanimity provided compliance was reported. Even today, they have not reported compliance... this order (of summoning) was passed on February 10... if there was some sense of responsibility, the officer would have filed the affidavit," observed Justice Oka.
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Despite the Andhra Pradesh counsel's plea to not officially record the state's failure, the Court maintained its stance, stating:
"We have to record it, because such requests are very unfair on the part of the state."
The Supreme Court's firm stance underscores the urgent need for stricter enforcement against misleading medical ads. The Court is expected to issue detailed directions on March 7 to ensure all States and UTs comply with the Drugs and Magic Remedies Act and establish mechanisms that allow citizens to report deceptive advertisements.
The case, Indian Medical Association v. Union of India, W.P.(C) No. 645/2022, will continue to be monitored closely, with further updates anticipated in the coming weeks.
Case Title: Indian Medical Association v. Union of India, W.P.(C) No. 645/2022
