The Court made it clear that all states must strictly enforce Rule 170 and take action against violators, warning against any inaction that could allow misleading medical claims to continue.
NEW DELHI: Today, 24th Feb, The Supreme Court of India strongly addressed the issue of misleading advertisements in the medical field, particularly those targeting allopathic medicine.
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The Court is hearing a plea filed by the Indian Medical Association (IMA) against such deceptive ads and has stressed the importance of following Rule 170 of the Drugs and Cosmetics Rules, 1945.
A Bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan reviewed reports from states, including Jharkhand, Karnataka, Kerala, Madhya Pradesh, Pondicherry, and Punjab.
Senior Advocate Shadan Farasat, acting as amicus curiae, pointed out various discrepancies in how states were responding to the issue.
The Supreme Court took a firm stance against Jharkhand’s claim that no manufacturers in the state had applied for permission under Rule 170. The Court directed the state to clarify whether any advertisements violating Rule 170(2) were being published.
“It’s the duty of the state to ascertain if any such ad is being published without following the procedure laid down. State shall file an affidavit on these terms,”
the Bench ordered.
The Court was also dissatisfied with Karnataka’s response. The state had failed to prosecute misleading advertisers in 25 cases, citing a lack of specific details.
The Bench dismissed this reasoning as an excuse and instructed the state to use its police force to trace those responsible and submit a compliance report.
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“As far as Karnataka, first stand is that no prosecution in 25 cases of misleading advertisements was initiated because of a lack of particulars. According to us, these are only excuses by the state. They have their own police machinery,”
the Court remarked.
The Supreme Court noted that Kerala filed the most comprehensive affidavit and made relevant suggestions. Meanwhile, Andhra Pradesh’s counsel requested the deletion of a direction issued to the Chief Secretary, but the Court refused, citing non-compliance due to the absence of an affidavit.
The Court made it clear that all states must strictly enforce Rule 170 and take action against violators, warning against any inaction that could allow misleading medical claims to continue.
In an earlier hearing on February 10, the Bench had reprimanded several states for not implementing its orders on regulating misleading advertisements in both allopathic and alternative medicine. The Court had even summoned the Chief Secretaries of Andhra Pradesh, Delhi, and Jammu & Kashmir to appear via video conferencing on March 7 to explain their non-compliance.
On January 15, the Court issued strong directives to ensure states and Union Territories followed the rules regarding misleading advertisements. It had also warned that non-compliance could result in contempt proceedings under the Contempt of Courts Act, 1971.
The Supreme Court had previously initiated contempt proceedings against Dr. R. V. Asokan, President of the Indian Medical Association (IMA), for his remarks against the Supreme Court in a press interview. However, the Court later decided to close these proceedings.
Senior Advocate Shadan Farasat had informed the Court that many states were not prosecuting offenders under Sections 3 and 4 of the relevant law, citing difficulties in identifying the culprits.
“No prosecutions are happening, and many states cite difficulties in identifying offenders,”
the amicus curiae pointed out.
Justice Oka criticized the weak enforcement by states, questioning their failure to act on complaints. The Delhi Government had claimed difficulty in identifying offenders, while Karnataka provided vague explanations, both of which the Court found unacceptable.
“Why not take action based on complaints received?”
the Bench asked.
In August 2024, a Bench led by Justice Hima Kohli had raised concerns over the apology issued by Dr. Asokan. The Court found the font size of his apology too small to be considered a genuine public acknowledgment.
Additionally, the Court reviewed misleading health claims by FMCG companies and noted that some States/UTs, such as Arunachal Pradesh, Dadra and Nagar Haveli, Daman & Diu, and Sikkim, had not yet filed the required affidavits.
On August 6, the Court deferred its decision on a show-cause notice against Dr. Asokan in the contempt case.
“After addressing the submission for some time, Mr. Patwalia, Senior Advocate, appearing for the proposed contemnor (Asokan), states that orders may be deferred on the contempt petition initiated against him by this Court to enable the proposed contemnor to take appropriate steps to purge himself of the contempt,” the Court had noted.
On August 13, the Court discharged contempt notices issued to Baba Ramdev and Patanjali Ayurved Managing Director Acharya Balakrishna in the misleading advertisements case. The Court accepted their unconditional apologies but warned them against future violations.
“An undertaking given to the Court has the same force as an order of the Court and breach thereof would amount to contempt in the same manner as a breach of an injunction,” the Bench ruled.
On July 9, the Court emphasized that its earlier order regarding self-declarations by advertisers should not be diluted. Advocate Shadan Farasat was appointed as an amicus to compile compliance data from states and present it before the Court. The Bench also urged the Centre to convene a meeting with the Ministry of Information and Broadcasting to address concerns regarding misleading advertisements.
In response to the Supreme Court’s directions in Writ Petition Civil No. 645/2022 (Indian Medical Association & Anr. vs. Union of India & Ors.), the Ministry of Information and Broadcasting introduced a new Self-Declaration Certificate requirement. Advertisers must now submit a declaration before broadcasting or publishing any advertisement.
This feature was made available on June 4, 2024, through the Broadcast Seva Portal for TV and Radio advertisements and the Press Council of India’s portal for print and digital advertisements.
Case Title: Indian Medical Association v. Union Of India [W.P.(C) No. 645/2022]
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