No Permission Required To Advertise Ayurvedic Treatment; Kerala High Court Suggests Bringing New Legislation To Regulate Such Ads

The Kerala High Court recently ruled that no permission was required to advertise ayurvedic treatment and facilities of an institution, as long as they were not advertising any drug.

However, the Bench clarified that this order should not be treated as a blanket order to publish advertisements about treatment.

Justice P.V. Kunhikrishnan also directed the State to issue a circular to certain authorised officers to monitor such advertisements and to take appropriate steps for any violation of Drugs and Cosmetics Rules or  Act.

"If any complaint from any part arises, I make it clear that this court will take it very seriously." 

The Court also made a significant observation in the matter whereby it was suggested that a legislation be drafted for advertising treatment of certain diseases to prevent unqualified persons from offering any treatment.

If the State did not possess the legislative competency for the same, it was directed to address this issue with the Centre.

Factual Background:

A recent amendment to the Drugs and Cosmetic Rules, 1945 imposed certain restrictions for advertising drugs. Pursuant to this amendment, the petitioner, a registered medical practitioner, applied for the issuance of a unique ID number so he can publish an advertisement. 

However, he alleged that this application was not considered since the software for the same was not programmed. Aggrieved by the same, he approached the Deputy Drugs Controller to advertise his hospital and the facilities therein. 

Nevertheless, this was rejected on the ground that the Controller was not authorised to grant permission for the same. Challenging this, the petitioner approached the Court. 

Contentions: 

The petitioner's case was that Rule 170 only prohibits the advertisement of Ayurvedic drugs and that there was absolutely no bar on advertising treatment. Such a bar was not imposed even in the Drugs and Magic Remedies (Objectionable Advertisements) Act.

The Government Pleader responded that the petition itself was not maintainable since it was instituted without approaching the authorities for advertisement by submitting a proper application.

Findings of the Court:

The Court agreed with the petitioner that Rule 170 did not prohibit advertising treatment given by an individual or other facilities of treatment in a hospital. 

"The petitioner has no case that he wants to advertise any drugs manufactured by him or any drug used for his treatment. In such circumstances, according to me, Rules 170 of Rule 1945 is not at all applicable in the facts and circumstances of the present case."

Similarly, Section 3 of the Act also only prohibited the advertising of certain drugs for the treatment of certain diseases and disorders.

Upon perusing the advertisement intended to be published by the petitioner, the Bench also noted that it was not related to any drug for the use of diagnosis, cure, mitigation, treatment, or prevention of any diseases, disorder, syndrome or condition.

Therefore, the single Judge decided that there was no law prohibiting the petitioner from publishing his advertisement. 

"If any casualty or after effect is caused because of such treatment, the petitioner alone is responsible and if any criminal/civil liability arose because of any treatment undertaken by the petitioner, he alone is responsible," it added.

Regarding the State's argument attacking the maintainability of the plea, the Court held that when there is no provision in the Act and Rules to get permission from the authorities for such advertisement for treatment, the petitioner was entitled to publish his advertisement.

Advocates B.S Swathi Kumar, Anitha Ravindran, Harisankar N. Unni and P.S Bhagya Surabhi appeared for the petitioner while the respondents were represented by Senior Government Pleader Deepa Narayanan.

Case Title: Dr. Sidharadhan K v. State of Kerala & Anr.

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