Inaction against Misleading medical Ads! Supreme Court Summons Chief Secretaries

New Delhi: The Supreme Court yesterday asked the Chief Secretaries of Andhra Pradesh, Delhi and Jammu and Kashmir Governments to virtually appear on March 7 and explain the reason for their failure to take action against misleading medical advertisements. 

While considering a contempt plea filed by the Indian Medical Association (IMA), the top court bench Justices Abhay S Oka and Ujjal Bhuyan also sought an explanation from them asking why they have not filed affidavits in terms of the Court's earlier orders regarding the enforcement of Rule 170 of the Drugs and Cosmetics Rules, 1945.

"As far as states of Andhra Pradesh, Delhi, Jammu and Kashmir are concerned, we find that there is hardly any implementation of the orders passed by this Court...Notwithstanding several orders passed by this Court, the aforesaid 3 states are non-compliant. We direct states of Andhra Pradesh, Delhi, Goa, Gujarat and Jammu and Kashmir to file further affidavits, including affidavits dealing with enforcement of Rule 170. We grant time till the end of this month to these states to file responses...We direct the Chief Secretaries of states of Andhra Pradesh, Delhi and Jammu & Kashmir to remain present through VC on that day to explain why these states are non-compliant," the Apex Court mentioned in its order.

Also Read: Inaction Against Misleading Medical Ads- Supreme Court Warns Contempt Proceedings

"Our experience, sitting on this side is, this is the most effective way of ensuring compliance of our orders. Once we get [Chief] Secretaries...it becomes very smooth. We don't summon them personally here...if need comes, we will do that...but, this is sufficient signal for them that they must take it seriously," the bench was quoted observing by Live Law.

Last year on May 7, the Supreme Court directed all State Governments and Union Territories to file affidavits of their Licensing authorities regarding the action taken by them since 2018 against misleading advertisements that violated the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, Drugs and Cosmetics Act, 1940, and Consumer Protection Act, 2019.

Medical Dialogues had earlier reported that earlier this year, the Apex Court had warned the States and Union Territories for their failure to take action against misleading advertisements and medical claims against law. The Court had issued a warning to initiate contempt proceedings against them.

"We make it clear that every find non-compliance by any of the states and union territories we may have to initiate proceedings under the Contempt of Courts Act, 1971 against the concerned States," the Court had clarified last month.

Live Law has reported that during the hearing of the matter yesterday, the Court found that the States/UTs of Andhra Pradesh, Delhi and J&K had not complied with the previous order(s).

Meanwhile, the Senior Advocate Shadan Farasat (Amicus Curiae) referred to an order passed by the coordinate bench of the Court on August 27, 2024, staying the Central Government notification which omitted Rule 170 of the Drugs and Cosmetics Rules, 1945.

Rule 170 restricted advertisements of Ayurvedic, Siddha, or Unani drugs without the approval from the licensing authorities. However, on August 29, 2023, the Union Ministry of Ayush sent a letter to the Licensing Authorities of all State/UT and the Drug Controllers of AYUSH, directing not to initiate/take action under Rule 170 in view of the recommendations of the Ayurvedic, Siddha and Unani Drugs Technical Advisory Board (ASUDTAB) to omit the provision. However, the final notification towards the omission of the Rule had not been published at that time.

Last year in April, when the Court had asked the Union Government to explain regarding the letter issued by the AYUSH Ministry, the Union Government informed on May 7 that it would "forthwith" withdraw the letter in question.

However, instead of withdrawing the letter, the Centre on 1st July 2024 issued a notification stating that Rule 170 shall stand omitted. Further, an affidavit was filed in this regard mentioning that it was being done in compliance with the Court's order.

Consequently, the Court had stayed the Government notification stating, "Till further orders, the effect of the notification dated 1 July 2024 omitting Rule 170 shall stand stayed. In other words, till further orders are passed, Rule 170 shall remain in the statute book."

Referring to this, the Amicus Curiae submitted yesterday that the problem could be resolved if all the States/UTs implemented Rule 170, which prohibited advertisements of Ayurvedic, Siddha, or Unani drugs without approval from the licensing authorities. He highlighted that while the first part of the Rule completely banned ads of traditional medicines as cures, etc., the second part envisaged a solution where there could be an ad provided there was a UID number and prior permission.

Agreeing with him, the top court bench recorded in the order yesterday, "as rightly pointed by the Amicus, the issue of illegal advertisements of Ayurvedic, Siddha or Unani drugs will be substantially taken care of if all the states start implementing Rule 170 in its true letter and spirit."

Background:

The case proceedings originated from a plea by IMA seeking regulation of medical advertisements by Patanjali Ayurved Ltd. Thereafter, the Court initiated contempt proceedings against Patanjali Ayurved, its MD Acharya Balkrishna, and co-founder Baba Ramdev for violating the previous order of the Court undertaking against publishing misleading ads.

The Supreme Court on May 7, 2024, passed directions for comprehensive measures to curb misleading advertisements. In this regard, the top court bench Justices Hima Kohli and Ahsanuddin Amanullah ordered,

• Advertisers and public figures endorsing products are equally accountable under the Central Consumer Protection Authority (CCPA) guidelines. Guideline 13 emphasized due diligence by endorsers.

• Advertisers to submit self-declaration forms, as per the Cable Television Network Rules, 1994, before airing advertisements. These forms must be uploaded to the Broadcast Seva Portal of the Ministry of Information and Broadcasting. A similar portal for press and print media was to be established within four weeks.

Previously, the Court had asserted that the fundamental right to health included a consumer's right to know the quality of products. Advertisers were required to follow Rule 7 of the Cable Television Networks Rules, 1994, ensuring advertisements did not offend decency or mislead consumers.

Compliance by Ministry and Dashboard Proposal:

The Supreme Court, in its order dated July 30, 2024, directed the Ministry of AYUSH, alongside other ministries, to take steps against misleading advertisements and non-compliance with related statutes. Back then, it had proposed setting up a public dashboard for state-level complaint tracking and action.

Meanwhile, the AYUSH Ministry had issued a notification on July 1, omitting Rule 170 of the Drugs and Cosmetics Rules, 1945, which prohibited advertisements for Ayurvedic, Siddha, and Unani drugs for disease-related claims. However, the Court had put a stay on this citing that it contradicted earlier orders requiring adherence to Rule 170.

Contempt proceedings were initiated against Patanjali since it published misleading ads despite the earlier orders issued by the Court. After this, Patanjali, Baba Ramdev, and Acharya Balkrishna published apologies. Consequently, the Court had closed the contempt proceedings against them on August 13, 2024.

Also Read: SC refuses to accept IMA president's Apology, Reserves verdict on Patanjali Misleading Ads case