Ministry Of Consumer Affairs Should Act Against Misleading Ads On Its Own, Instead Of Waiting For Complaints : Supreme Court

While hearing the Patanjali misleading ads case, the Supreme Court today lamented that in the past 4 years, the Ministry of Consumer Affairs only acted against misleading advertisements when a complaint was made, but did not carry out any due diligence on the ground level on its own.

A bench comprising Justices Hima Kohli and Sandeep Mehta verbally observed that when the Ministry had a tie-up with the Advertising Standards Council of India (ASCI), there used to be more action. But ever since the tie-up ended, the number of complaints and their resolution rate has dwindled.

"After the MoU expired with ASCI, the Ministry has setup a website where it has integrated GAMA (Grievance Against Misleading Advertisements) into their own...what has happened is, where there were 2500+ complaints for period of 2 years (between 2018-2020), it has plunged to 130 (between 2020-2024). The main reason which appears to be is that Ministry is waiting for complaints to come. Whereas, when you had a tie-up with ASCI, ASCI was doing a lot of due diligence itself on ground. We understand it can't be done at that level...but the fact that there is no complaint, does not mean that the Ministry should not have taken any action...it should have taken action on its own", said Justice Hima Kohli.

The Court also came down on certain States/Union Territories for non-compliance of its earlier orders, which required that the states/UTs file affidavits detailing action taken by their State Licensing Authorities (in response to complaints as well as suo motu) to ensure that no misleading ads are issued by manufacturers of health products, food items, etc.

After being informed by Amicus Curiae Shadan Farasat that only 21 out of 36 States/UTs had filed their affidavits, the bench gave 2 weeks' time for the 15 non-compliant States/UTs to do the needful. Insofar as certain states/UTs were not represented before the court, it was warned that the presence of Secretary (Health) may be directed on the next date.

"Issue notice of default to the Secretary (Health) of the non-compliant states, with directions to make compliances within 2 weeks from today...failing which the personal presence of the Secretary (Health) of the concerned State shall be directed...The presence virtually is directed", the bench observed in the order.

The defaulting states, which had so far not filed affidavits, or were not represented today, included - Andhra Pradesh, Arunachal Pradesh, Dadar and Nagar Haveli, Haryana, Jammu and Kashmir, Kerala, Rajasthan, Sikkim and Uttarakhand. Insofar as states of Meghalaya, Tripura and Mizoram, it was noted that the affidavits were filed yesterday or today morning.

During the hearing, counsel for Mizoram informed the court that the affidavit was filed yesterday. However, Justice Kohli was displeased and asked, "why were you waiting for the last minute, knowing that there was hearing today?". On another counsel making similar statement, the judge exclaimed, "what was so special about yesterday?"

Notably, when counsel for Ladakh pleaded that the affidavit was received yesterday and has been forwarded to the Advocate-on-Record's office for filing, Justice Kohli remarked, "you expect us to do it in the course of the day and keep our board aside only to wait for your affidavit? Is that how you comply?"

Amicus' Suggestions

For a substantial part of the hearing, the Amicus took the court through a note prepared by him, which collated data in terms of the last order and offered suggestions. Based on the same, he made the following suggestions:

(i) That there shall be a requirement of proof of effectiveness for new indications; 

(ii) That more effective use shall be made by state/UT authorities of the existing penalty-mechanism under the Drugs and Magic Remedies Act, the Drugs and Cosmetics Act and the Consumer Protection Act;

(iii) That issuance of license for medicines be made subject to prior approval of advertisements (as is already being done in some states/UTs);

(iv) That there should be a centralized mechanism for routing of consumer complaints, as sometimes the complaints are forwarded from one state to another for action, but there is no follow-up by the receiving state;

(v) That the mechanism developed under Government of India's tie-up with ASCI be re-initiated, as ASCI not only acts in response to complaints, but also does suo motu due diligence on ground level.

Restraints on advertising industry

It is worthwhile to mention that ASG KM Nataraj informed the court that pursuant to its last order, two meetings (one on June 30 and another on July 19) have been convened, involving participation of as many as 40 stakeholders, to figure out the issues likely to be faced by the advertisement industry (pursuant to the May 7 order). He sought some more time to collate all the information and file a response giving recommendations.

The court allowed the request and gave 2 weeks' time to do the needful.

However, when the ASG pressed that "some stakeholders have sought some more time...", Justice Kohli shot back, "they have to then hurry up and pull their socks".

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

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Also Read: Supreme Court Asks Uttarakhand Govt To Finalize Decision On Suspension Of 14 Patanjali Products In Two Weeks