ABSTRACT
This article talks about the recent supreme court ban on the advertisement published by Patanjali. The ban was due to the misleading nature of the advertisements contributing to the dissemination of false information in the healthcare industry. The healthcare industry is frequently prone to misleading advertisements by AYUSH companies making false claims to the public for profit. Several government enactments and regulatory bodies and their contributions to control false marketing have been listed. The article delves deeper into the legal technicalities involved, current legislation on the same and plausible solutions to combat the problem.
INTRODUCTION
What’s the news, why in news?
Patanjali is in the news again for all the bad reasons. The Hon’ble Supreme Court has banned misleading advertisements published by Patanjali. The face of this brand is the widely known yoga guru Baba Ramdev. On 23rd August, 2023 the Supreme Court while hearing a writ petition filed by the Indian Medical Association condemned the misleading advertisements published in the electronic media by Patanjali. Such ads released by the company aims at making false claims about ‘curing’ diseases like diabetes, asthma etc. The claims are referred to as ‘false’ since there is no scientific backing to substantiate the same. The Chief Justice stated that Baba Ramdev can rightfully promote his practices of yoga and brand, but it is unnecessary for him to criticise other systems and practices in medicine. On 21st November, 2023 the Supreme Court had again issued a severe warning to Patanjali for its unabating misleading advertisements. Justice Amanullah also mentioned that the court will go to the extent of charging a fine of Rs. 1 crore on every product that claims to treat and ‘cure’ diseases. The court also mentioned that it has no intention of sparking a debate as to which system of medicine is better allopathy or ayurveda. The aim is to prevent the spreading of misinformation. The counsel for the brand guaranteed the court that no such advertisements will be made in any way including making statements in the media. The petition also addresses Baba Ramdev’s allegations blaming allopathy behind deaths during COVID-19. The court had also directed the Centre to take strict actions against the conduct of such companies under the Drugs and Magic Remedies (objectionable advertisements) Act, 1954. In its hearing on 27th February, the Hon’ble Court criticised the Centre for not taking any action. The court criticised the laidback attitude of the government as the petition was filed in 2022, and it has been two years since then. The Centre contended that under the Drugs and Magic Remedies Act, 1954 it is the responsibility of the state governments to ensure implementation but the court justly said that it is the duty of the centre to inform the state governments about the same and sought action. The IMA also informed the bench that Patanjali even after assuring the court to cease from producing misleading advertisement in its previous hearing has continued to do the same. The brand disregarded the orders given by the court which led the court to ban the advertisements of products related to diseases under the Drugs and Magic Remedies Act, 1954.
What inferences can be drawn from this news?
Yoga, an ancient practice, has crossed the boundaries of our country due to its innumerable health benefits. Baba Ramdev, a yoga guru, rose to fame as a teacher and promoter of the age-old practice. His popularity led him to start Patanjali Ayurved in collaboration with Balkrishna. The masses of the country have immense trust in Baba Ramdev and the products of his brand. Patanjali products like toothpaste, oils are widely used by the public. In light of these facts, when such a brand spreads misinformation, it influences the public at large. Making false claims of curing dangerous diseases can lead to severe consequences. It is important for people having serious health problems to consult professional doctors. The court proceedings are the testament of the negligent behaviour of the government and the concerned authorities in taking strict actions against such advertisements. The government continues to play the blame game instead of rising to action.
LEGAL FRAMEWORK IN PLACE
Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954[1]
This act aims to manage and regulate the promotion and advertisement of drugs in the context of claiming that such drugs have magical healing properties. Section 2©[2] of the act defines magic remedy which entails advertisement of drugs claimed to ‘cure’, mitigate, prevent or treat any kind of disease mentioned in schedule 1 of such act. Section 4 of the act clearly prohibits advertisements that aim to deceive the public and trick them into voluntary medication. Any violation of the provisions of this act shall amount to criminal offence and shall attract penalty amounting to imprisonment up to one year. The act aims to prevent self-medication by people as well as regulate the advertisement industry in this regard so as to prevent them from influencing the masses.
The constitutionality of this act was challenged in the case of Hamdard Dawakhana v. Union of India[3] on the grounds that it is violative of Article 19(1)(f) & (g)[4]. The court held that it is true that advertisement is a part of the freedom of speech, but the true essence and purpose of advertisement is to promote goods and services. And when this is done, it comes under the purview of trade and commerce since it is no longer the expression of ideas.
The Drugs and Magic Remedies Objectionable Advertisement Rules, 1955
Rule 3 authorises the concerned persons to launch an investigation on advertisements that prima facie promotes drugs on false pretences. It also empowers the concerned authorities to cease the manufacturing and production of the same.
The Cable Television Network Act[5] and The Cable Television Network Rules[6]
The aforementioned act and rules have established a code for the publication of advertisements which is to be followed by all the concerned persons. Any violation will amount to imprisonment for a year or imposition of fine of Rs. 2000 or both as the case may be. An amendment to the rules in 2006 provides that the advertisement should not violate the code of conduct set out by the Advertisement Standards Council of India.[7]
Consumer Protection Act, 2019
The Consumer Protection Act, 1986 was repealed and replaced by this act to upkeep with latest technological developments. The primary objective of the act is to safeguard consumer interests from the harsh practices adopted by sellers and to establish relevant authorities for the settlement of consumer disputes.
Advertisement defined in section 2(1)[8] of the act includes publishing in electronic media.
Section 9[9] of the act states the rights of the consumers which includes the right to be protected against the marketing of goods, products or services which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices and the right to consumer awareness.
Section 2(28) defines misleading information as an act of publicising and spreading false information and guarantee about the nature, substance, outcome etc of the product. It basically states all the ways in which sellers fool the consumers[10]. The consumer must also act in a reasonable manner.
Section 2(47)[11] of the act gives a comprehensive definition of unfair trade practices which includes advertisements made on any platform spreading misinformation about the product being sold by the company.
Section 10[12] of the act talks about the establishment of the Central Consumer Protection Authority. The act entails the strength, process of appointment, powers and procedures od the CCPA.
Advertising Standards Council of India (ASCI)
ASCI is a not-for-profit self-regulatory body established for the regulation of advertisements under the companies act, 1956 to preserve consumer interests. It hasn’t been established under any legislation or government hence it does not constitute laws for the public or the related industries. People in the advertisement industry and the representative of aggrieved individuals formulate and abide by the principles formulated and laid down by the voluntary body. The principles of this body are Honesty, Decency, Non-harmfulness, and Fair play in a competition.
National Advertising Monitoring System (NAMS)
This regulatory body has been established by ASCI in 2012 in collaboration with TAMS Media to trace deceptive advertisements. They have been tasked to keep a track of newspapers as well TV channels in regional languages. It overlooks advertisements published in a plethora of sectors including banking, finance, health, medicine etc.
Uniform Code of Pharmaceuticals Marketing Practices (“UCPMP Code”)[13]
UCMP is another such regulatory body instituted under the Department of Pharmaceuticals in 2014 to restrict unethical and immoral practices used by companies. Any publicity of drug promotion must be approved by the respected authority and such information must be confirmed by the concerned bodies as well.
CRITICAL ANALYSIS
Advertisements are important in disseminating vital information to the public as they can help create awareness about a certain cause and help in the disclosure of such information in a quick span of time. In current times, companies misuse advertisements to get consumers to purchase their products. They make extravagant claims to sell their products for profit maximisation. They have frayed from the object of social responsibility to just tricking people. Such a spread of misinformation, especially in the medical industry, can prove to be fatal. The claims made by Patanjali to cure diseases such as diabetes that require special attention and care by medical professionals are not only misleading but outrageous. There is no scientific backing to this claim made by the brand.
Big companies by means of visual aid persuade the consumers further escalating the problem of misinformation. The target audience of these companies are easily susceptible to the methods used by them and are blindsided. Celebrities are made the ambassadors of such brands to reach a wide variety of audiences. Multiple channels of communication such as newspaper, internet are utilised to target different age groups. Even though the consumer protection act promises to protect the customers from evil practices adopted by the companies, hardly any action has been taken against such conduct. Misleading advertisements violate a plethora of consumer rights that have been guaranteed under the Consumer Protection Act. It violates the right of the consumers to information. Consumers have the right to know about every detail of the product being used by them including the side effects. It violates the consumer’s right to safety from the utilisation of products. Companies claiming instant lightening of the skin, rapid weight loss etc can cause long lasting problems to the health of the consumer. Another instance in which the brand Patanjali promoted products on its website aimed at improving the sexual performance of men and women. Such advertisements are strictly prohibited under the drugs and magic remedies act. In the case of K.C. Abraham v. The State of Kerala Peethaambaran Kunnathoor, Chennai[14] the court held that the promotion of the ayurvedic drug ‘Musli Power Xtra’ is in violation of section 7 of the drugs and remedies act. The efficiency of the product was questioned, and the company had to pay a penalty of Rs. 50,000.
The government has turned a blind eye to the manipulative tactics. Ultimately, it is the consumers who become the victim of such scams. Disregard to allopathy by AYUSH companies is a crisis that needs urgent attention of the authorities. According to WHO, spreading fake information is the major cause of hesitancy in taking vaccines and medicines provided by the government. Due to the overload in misleading advertisements people have formed a lot of misconceptions about the healthcare industry. It has become difficult for the government to convince people to take government-provided medicines. As it is said, ayurveda is the science of life. It is a way of living rather than a science that seeks to cure ailments. Certain diseases that have high risk require immediate attention and relief. That’s when allopathy tides in. Making bold statements like allopathy is the reason behind COVID-19 undermines people’s trust in medical science especially in tough times makes people lose hope in the system of medicine. The DMRA Amendment Bill dated 3rd February, 2020 has sought to increase the penalty, addition of more diseases and establishing an Ayurvedic, Siddha and Unani Drugs Advisory Board. All the current enactments only aim at curbing the advertisements rather than focusing on increasing consumer awareness.[15]
CONCLUSION
Given the widespread misuse of advertisement especially in the healthcare industry posing threats to the public at large, the government needs to come to the rescue of the citizens. Stringent actions need to be taken to set precedent for all such companies to cease from making false claims. Heavy penalties must be imposed on industries making extravagant claims. Policies need to be formulated and steps have to be undertaken to supervise advertisements by government authorities. There must be a government supervised and controlled platform accessible by the public wherein information regarding healthcare must be published to combat the problem of false claims made by big companies. Information must be provided in regional languages to ensure easy access and readability by all the sections of the society. Common health related myths must be busted in the same platform. Education also plays a vital role in this regard. Consumers must be made aware of prevalent health diseases and steps to be taken to prevent them. Healthline numbers must be provided in such a platform as well as location of nearby hospitals and the facilities provided therein. Online medical counselling as well as guidance must be provided by the government helping people in remote areas right from admission of the patient in the hospital to finances in case of medical emergencies. If the implementation is done diligently, then it will make a significant impact in the healthcare industry. The DMRA act is outdated calling for the need of new codified legislation.
REFERENCES
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8297168/
https://www.livelaw.in/pdf_upload/248322022133848538order21-nov-2023-506018.pdf
[1] Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, No. 21, Acts of Parliament, 1973(India).
[2] Drugs and Magic Remedies (Objectionable Advertisement) Act, § 2(c), 1954, No. 21, Acts of Parliament, 1973(India).
[3] Hamdard Dawakhana v. Union of India, 1959 SCC Online SC 38
[4] Constitution of India, art. 19(1)(f) & Constitution of India, art. 19(1)(g)
[5] Cable Television Network Regulation Act, 1955
[6] Cable Television Network Rules, 1994, GSR 729(E)
[7] Misleading Drug Advertisements: Busting the Myth and Protecting Consumers, 1.4 JCLJ (2021) 592
[8] Consumer Protection Act, 2019, S. 2(1)
[9] Consumer Protection Act, 2019, S. 9
[10] Consumer Protection Act, 2019, s. 2(28)
[11] Consumer Protection Act, 2019, S. 2(47)
[12] Consumer Protection Act, 2019, S. 10
[13] Uniform Code of Pharmaceuticals Marketing Practices 2014
[14] KC Abraham v. State of Kerala Peethaambaran Kunnathoor, Chennai WP (C) No. 11410 of 2011
[15] Direct Marketing and Advertisement of Certain Medical Devices to Patients in India – A Dilemma, 6.1 RSRR (2020) 158
Article written by- Rashi Hora
