Machinery Needed For Citizens To File Complaints Against Misleading Medical Ads : Supreme Court

During the hearing of Indian Medical Association's case pertaining to misleading medical ads, the Supreme Court today emphasized on the importance of the Drugs and Magic Remedies Act and the need for a mechanism thereunder to enable citizens to file a complaint.

A bench of Justices Abhay S Oka and Ujjal Bhuyan heard the matter and asked Senior Advocate Shadan Farasat (Amicus Curiae) to place before it a note on the implementation of the Act by the next date.

"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", Justice Oka orally said to Farasat.

The judge also asked the senior counsel to address the Court on the provisions of the DMR Act, the compliances required thereunder and whether requisite machinery to implement the Act is in place across states/UTs.

To recap, on May, 7, 2024, the Court had directed all State/UT governments to file affidavits of their Licensing authorities regarding action taken by them taken since 2018 in respect of misleading ads that violated Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, Drugs and Cosmetics Act, 1940 and Consumer Protection Act, 2019. Subsequently, the Court directed all State/UT governments to explain their inaction in imposing penalties and deterrents for compliances of the statutes.

Today, on a specific query, Farasat informed the Court that there had not been a specific direction to the states/UTs with regard to the Drugs and Magic Remedies Act. Accordingly, the order was passed, with the bench indicating that it would issue comprehensive directions in connection with the Act on March 7.

Compliance by states/UTs with earlier directions

The matter was listed today for considering states/UTs' compliance with the Court's earlier orders regarding enforcement of Rule 170 of the Drugs and Cosmetics Rules, 1945. These states/UTs included: Jharkhand, Karnataka, Kerala, Madhya Pradesh, Pondicherry and Punjab.

Insofar as Jharkhand, the state counsel took a stand that no manufacturer in the state has applied for 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. As such, the Court asked the state to file a better affidavit after ascertaining whether any ad covered by the provision was being published without following established procedure.

As regards Karnataka, the state counsel appeared and informed that no prosecution was initiated in 25 cases of misleading ads because of lack of material particulars (such as license no.). Deeming the same to be "excuses", the Court directed the state to ascertain the names/addresses of wrongdoers (as regards the ads) and report compliance. "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", dictated Justice Oka.

So far as 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, on the other hand, had filed a further affidavit recently, which Farasat did not have the benefit of going through; as such, the Court said that it would consider the same on the next date. Likewise, the Court also decided to consider the affidavit of State of Madhya Pradesh on the next date.

In the context of Pondicherry, the Court initially issued notice to the Chief Secretary for not reporting compliance, however, subsequently a counsel appeared for the UT and the Court deleted its direction, giving time to the UT to file its affidavit.

Considering the above, a counsel appearing for State of Andhra Pradesh, whose Chief Secretary was summoned on the last date, prayed that the Court show similar "magnanimity" in the context of AP. However, noting that the summoning order was passed on February 10 and still the state had 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", orally said Justice Oka. The state counsel beseeched the Court to not record that the state had not complied, as time was given to it till end of this month. However, the observation was not withdrawn. "We have to record it, because such requests are very unfair on the part of the state", remarked Justice Oka.

Case Title: Indian Medical Association v. Union of India, W.P.(C) No. 645/2022 

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