Justice Abhay S. Oka, Justice Ujjal Bhuyan, Supreme Court
Misleading Medical Advertisements Case: Supreme Court Directs States To Ensure Compliance Of Rule 170 Of Drugs And Cosmetics Act
|The Court was hearing a writ petition filed by the Indian Medical Association (IMA) seeking action against misleading advertisements promoting allopathic medicines.
The Supreme Court today heard the Indian Medical Association's (IMA) plea against misleading advertisements and claims targeting allopathic medicine, emphasizing strict compliance with Rule 170 of the Drugs and Cosmetics Rules, 1945.
The Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan reviewed the compliance status of Jharkhand, Karnataka, Kerala, Madhya Pradesh, Pondicherry, and Punjab.
Senior Advocate Shadan Farasat, acting as amicus curiae, pointed out discrepancies in the states' responses.
The Court took a strong stance against Jharkhand’s claim that no manufacturers in the state had applied for permission under Rule 170, directing the state to clarify whether any advertisements violating Rule 170(2) were being published. The Court emphasized that it was the state's duty to ensure compliance and ordered an affidavit to be filed.
"It's the duty of the state to ascertain if any such ad is being published without following the procedure laid down. State shall file an affidavit on these terms," the Bench said.
Regarding Karnataka, the Court criticized the state’s failure to prosecute misleading advertisers in 25 cases, stating that the lack of particulars was merely an "excuse." It directed the state government to utilize its police machinery to trace the sources of misleading advertisements and submit a compliance report. "As far as Karnataka, first stand is that no prosecution in 25 cases of misleading advertisments was initiated because of a lack of particulars. According to us, these are only excuses by the state. They have their own police machinery," it said.
The Court also reviewed compliance by Kerala and Punjab, noting that Kerala had filed the most comprehensive affidavit and made relevant suggestions.
Meanwhile, Andhra Pradesh’s counsel sought deletion of a direction issued to the Chief Secretary, but the Court rejected the request, citing non-compliance due to the absence of an affidavit.
The Bench reaffirmed that States must proactively enforce Rule 170 and take action against violators, warning against inaction in preventing misleading medical claims.
Last Hearing
The Court had reviewed submissions made by Amicus Curiae Shadan Farasat, who highlighted the lack of prosecution under Sections 3 and 4 of the relevant law, as per state affidavits. “No prosecutions are happening, and many states cite difficulties in identifying offenders,” the Senior Counsel had submitted.
Justice Oka had questioned the inadequate steps taken by states, pointing out that responses like the Delhi Government's claim of difficulty in identifying offenders and Karnataka's explanation regarding unidentified offenders were unsatisfactory. "Why not take action based on complaints received?" the Bench asked.
Previously
Pertinently, in August 2024, the Bench led by Justice Hima Kohli had raised concerns over the minuscule font size of an apology published by Dr. R. V. Asokan, President of the Indian Medical Association (IMA), in connection with a contempt notice issued against him. The notice was related to the remarks he made in a press interview about the Apex Court while the IMA's plea against Patanjali Ayurved was still pending.
The Bench had also considered the issue of misleading health claims by FMCG companies through advertisements done by them. The amicus informed the Bench that some States/UTs have not filed the requisite affidavit as per the last orders of the Court. He had informed the Bench that Arunachal Pradesh, Dadra and Nagar Haveli, Daman & Diu and Sikkim have not filed the affidavit.
Earlier, on August 6, the Court had deferred an order in show cause contempt notice issued to the IMA President. "After addressing the submission for some time, Mr. Patwalia, Senior Advocate, appearing for the proposed contemnor (Asokan), states that orders may be deferred on the contempt petition initiated against him by this Court to enable the proposed contemnor to take appropriate steps to purge himself of the contempt," the Court had noted. "Without making any observations on the submissions made before this Court today, at the request of learned Senior Counsel, list on August 27," the Bench had ordered.
It is to be noted that on August 13, the Court discharged the Contempt Notices issued to Baba Ramdev and Patanjali Ayurved Managing Director (MD) Acharya Balakrishna in the Patanjali misleading advertisements case. While closing the contempt proceedings against the duo, the Court had said that it is accepting the unconditional apology tendered by them. The Court had also warned them not to violate Court's orders in future. The Court had underscored that an undertaking, whether made explicitly in writing or orally and recorded in the court order, holds the same force as a judicial order. Breaching such an undertaking is considered equivalent to contempt of court, similar to violating an injunction order. "An undertaking given to the Court has the same force as an order of the Court and breach thereof would amount to contempt in the same manner as a breach of an injunction," the Bench had ruled.
On July 9, the Court had said that its earlier order containing directions for self-declaration to be submitted by the advertisement industry should not adversely suffer on account of its directions. The Court had also appointed Advocate Shadan Farasat as an amicus for the limited purpose of collating all the data presented by states and presenting them before the Court. The Bench had also requested the Centre to convene a meeting with stakeholders and senior officials of the Ministry of Information and Broadcasting to resolve issues and difficulties faced by advertisers.
Earlier, on May 14, the Court had refused to accept the unconditional apology of the President of the Indian Medical Association (IMA), Dr. R. V. Asokan, for his press interview containing remarks against the Supreme Court during the pendency of IMA's plea against Patanjali Ayurved with respect to misleading advertisements. Earlier, the Court had come down heavily on the President of IMA. The Court had said that all intention is shown by Dr. Asokan's conduct and had also inquired why no public apology has been made yet. The Bench had also reserved order in the Contempt notices issued to Baba Ramdev and Balakrishna in the case. The Court had also called for comradery between Allopathy and Ayurved.
On May 7, the Bench had issued notice to the present President of the IMA, impleaded him as a party to the plea filed by IMA against Patanjali Ayurved, and directed him to file an Affidavit. Earlier, the Court had pulled up the Indian Medical Association (IMA) and had said, "While the Petitioner is pointing fingers at Patanjali, those other four fingers are pointing at you, because members of your association have been busy endorsing medicines to their patients, left, right and centre."
In related news, the Ministry of Information and Broadcasting had issued a press release stating that in view of the directions issued by the Apex Court in Writ Petition Civil No. 645/2022-Indian Medical Association & Anr. vs. . Union of India & Ors, requiring all advertisers and advertising agencies to furnish a 'Self-Declaration Certificate' before publishing or broadcasting any advertisement, the Ministry had introduced a new feature on the Broadcast Seva Portal for TV and Radio Advertisements and on the Press Council of India's portal for Print and Digital/Internet Advertisements. This portal was activated on June 4, 2024.
Cause Title: Indian Medical Association v. Union Of India [W.P.(C) No. 645/2022]