Supreme Court calls for mechanism for complaints Against Misleading medical Ads

New Delhi: While considering the Indian Medical Association's plea regarding misleading medical ads, the Supreme Court today emphasized the necessity of the Drugs and Magic Remedies Act and highlighted the requirement for a mechanism under the Act to enable citizens to file complaints against such instances.

During the hearing of the case, the top court bench comprising Justices Abhay S Oka and Ujjal Bhuyan asked the Senior Advocate Shadan Farasat (Amicus Curiae) to place before the bench a note on the implementation of the Act by the next date of hearing, Live Law has reported.

"Under that Act (Drugs and Magic Remedies[Objectionable Advertisements] Act), machinery has to be established first. This is one of the Act of most vital importance. Place your note on record...we will pass comprehensive directions specifically...we will direct that entire machinery must be setup...prosecution must be [made]...some grievance redressal mechanism has to be there...if some citizen wants to complain, then how will he complain? We will direct the creation of some dedicated phone lines or something so that people can file a complaint...that is one area which should have been dealt with earlier...it's very important," the bench told the Amicus Curiae.

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As per the latest media report by Live Law, the top court bench has also asked the Senior Counsel to address the Court on the provisions of the Drugs and Magic Remedies Act along with the compliances required under the Act. Further, the bench asked the senior counsel whether the States/UTs had the requisite machinery to implement the Act.

The Apex Court made these observations while considering a plea filed by the Indian Medical Association (IMA) against misleading claims and advertisements targeting modern or "allopathic" medicine.

Medical Dialogues had earlier reported that 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.

Thereafter, on July 30, 2024, the Court issued directions to all the State Governments/Union Territories to explain their inaction in imposing penalties and deterrents for compliance with the statutes.

During the hearing of the matter today, on a specific query, the Amicus Curiae informed the top court bench that there had not been a specific direction to the States/UTs regarding the Drugs and Magic Remedies Act. Accordingly, the order was passed and the bench indicated that it would issue comprehensive directions in connection with the Act on March 7.

Compliance by States/UTs regarding Earlier Directions Issued by the Supreme Court:

Today, the Court was considering the compliances by States/UTs (including Jharkhand, Karnataka, Kerala, Madhya Pradesh, Pondicherry, and Punjab) regarding the earlier orders issued by the Court regarding the enforcement of Rule 170 of the Drugs and Cosmetics Rules, 1945.

Jharkhand:

In the case of Jharkhand, the State Counsel informed that no manufacturer in the State had applied for the grant of permission under Rule 170. However, the Court noted that the State had not come up with a case that no ad governed by Rule 170(2) was being published in the State.

The Court has asked the Jharkhand State to file a better affidavit after confirming whether any ad covered by the provision as being published without the following established procedure.

Karnataka:

Regarding Karnataka, the State Counsel informed the Court that no prosecution was initiated in 25 cases of misleading ads because of lack of material particulars (such as licenses no.)

However, the bench considered it to be "excuses" and directed the State to ascertain the names/addresses of wrongdoers (as regards the ads) and report compliance.

The Court ordered, "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 state to do so."

Kerala:

In the case of Kerala, the Court did not find a need to issue any directions, as it was informed that the State was by far carrying out proper implementation of the Rule.

Punjab:

Recently, the Punjab Government had filed a further affidavit, which the Amicus Curiae did not have the benefit of going through. The Court said that it would consider the affidavit on the next date.

Madhya Pradesh:

During the hearing of the case, top court bench decided today that the affidavit filed by the State of Madhya Pradesh also would be considered on the next date.

Pondicherry:

Regarding Pondicherry, the Supreme Court initially issued notice to the Chief Secretary for not reporting compliance. Howebver, later, a counsel appeared for the UT and the Court deleted its direction while granting time to the UT to file its affidavit.

Andhra Pradesh:

The counsel for Andhra Pradesh, whose chief secretary was summoned on the last date, urged the Court for similar "magnanimity" in the context of Andhra Pradesh.

However, noting that the summoning order was passed on February 10 and that the State has still not filed its affidavit reporting compliance, the Court rejected the prayer.

"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," Justice oka orally observed.

Even though the State counsel urged the Court not to record the non compliance by the State, arguing that time was given to the State till the end of this month, the Court did not withdraw its observation.

"We have to record it, because such requests are very unfair on the part of the state," Justice Oka remarked.

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