Supreme Court Summons Chief Secretaries Of AP, Delhi & JK To Explain Failure To Act Against Misleading Medical Ads

The Supreme Court today asked Chief Secretaries of Andhra Pradesh, Delhi and Jammu & Kashmir to appear on March 7 virtually and explain why they haven't complied with directions passed by the Court earlier to act against misleading medical advertisements.

Hearing a writ petition filed by the Indian Medical Association, the Court also asked them to explain why they have not filed their affidavits in terms of the Court's earlier orders regarding enforcement of Rule 170 of the Drugs and Cosmetics Rules, 1945.

"As far as states of Andhra Pradesh, Delhi, Jammu and Kashmir are concerned, we find that there is hardly any implementation of the orders passed by this Court...Notwithstanding several orders passed by this Court, the aforesaid 3 states are non-compliant. We direct states of Andhra Pradesh, Delhi, Goa, Gujarat and Jammu and Kashmir to file further affidavits, including affidavits dealing with enforcement of Rule 170. We grant time till the end of this month to these states to file responses...We direct the Chief Secretaries of states of Andhra Pradesh, Delhi and Jammu & Kashmir to remain present through VC on that day to explain why these states are non-compliant".

A bench of Justices Abhay S Oka and Ujjal Bhuyan passed the order. Interestingly, while issuing direction for Chief Secretaries of the 3 non-compliant states/UTs to appear virtually, Justice Oka remarked,

"Our experience, sitting on this side is, this is the most effective way of ensuring compliance of our orders. Once we get [Chief] Secretaries...it becomes very smooth. We don't summon them personally here...if need comes, we will do that...but, this is sufficient signal for them that they must take it seriously."

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 violate 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.

Earlier this year, a warning was issued that the Court will initiate contempt proceedings against states/UTs which failed to take action against misleading advertisements and medical claims running contrary to law. Further, a compliance schedule was formulated, as per which compliance by states/UTs of Andhra Pradesh, Delhi, Goa, Gujarat, and Jammu & Kashmir was to be reviewed today.

In course of today's hearing, the Court found that states/UTs of Andhra Pradesh, Delhi and J&K had not complied with previous order(s).

On his part, Senior Advocate Shadan Farasat (Amicus Curiae) referred to an order passed by coordinate bench of the Court on August 27, 2024, staying the Central government notification which omitted Rule 170 of the Drugs and Cosmetics Rules, 1945.

For context, Rule 170 prohibited advertisements of Ayurvedic, Siddha, or Unani drugs without licensing authorities' approval. However, on August 29, 2023, the Ministry of Ayush sent a letter to all State/UT Licensing Authorities and Drug Controllers of AYUSH, directing that action under Rule 170 not be initiated/taken by them in view of a recommendation of the Ayurvedic, Siddha, and Unani Drugs Technical Advisory Board (ASUDTAB) to omit the provision. The final notification towards omission of the Rule remained to be published at the time.

In April, 2024, the Court sought an explanation from the Union regarding the letter issued by the AYUSH Ministry. On May 7, the Union informed that it will "forthwith" withdraw the letter in question. Eventually, however, instead of withdrawing the letter, the Centre issued a notification on 1 July 2024 to the effect that Rule 170 shall stand omitted. Further, an affidavit was filed stating that the same was done in compliance of the Court's order. Finding the same to be in teeth of the order dated May 7, the Court stayed the government notification. "Till further orders, the effect of the notification dated 1 July 2024 omitting Rule 170 shall stand stayed. In other words, till further orders are passed, Rule 170 shall remain in the statute book", it said.

Recapitulating the above, Amicus-Farasat submitted today that the problem can be resolved if all states/UTs implement Rule 170, which prohibits advertisements of Ayurvedic, Siddha, or Unani drugs without licensing authorities' approval. He highlighted that while first part of the Rule completely bans ads of traditional medicines as cures, etc., the second part envisages a situation where there can be an ad provided there is a UID number and prior permission.

"That really is a solution to this entire problem", said the Amicus. Concurring with him, the bench recorded in the order, "as rightly pointed by the Amicus, the issue of illegal advertisements of Ayurvedic, Siddha or Unani drugs will be substantially taken care of if all the states start implementing Rule 170 in its true letter and spirit".

Background

The current case originated from a petition filed by the Indian Medical Association (IMA) seeking regulation of medical advertisements by Patanjali Ayurved Ltd. The case evolved to include contempt proceedings against Patanjali Ayurved, its MD Acharya Balkrishna, and co-founder Baba Ramdev for violating a court undertaking against publishing misleading advertisements.

On May 7, 2024, the Supreme Court passed directions for comprehensive measures to curb misleading advertisements:

1. Advertisers and public figures endorsing products are equally accountable under the Central Consumer Protection Authority (CCPA) guidelines. Guideline 13 emphasized due diligence by endorsers.

2. Advertisers to submit self-declaration forms, as per the Cable Television Network Rules, 1994, before airing advertisements. These forms must be uploaded to the Broadcast Seva Portal of the Ministry of Information and Broadcasting. A similar portal for press and print media was to be established within four weeks.

Contempt Proceedings and Apologies

1. Patanjali published misleading ads despite the Court's earlier orders. Apologies were subsequently published by Patanjali, Baba Ramdev, and Acharya Balkrishna, leading the Court to close contempt proceedings against them on August 13, 2024.

2. Dr. RV Asokan, IMA President, faced contempt proceedings for remarks critical of the Court. On August 27, 2024, the Court directed the submission of physical copies of apology advertisements published in various editions of The Hindu. Dissatisfied with their size and presentation, it sought further compliance.

Ultimately, the Court closed the contempt proceedings against Patanjali and its cofounders, as well as against the IMA President, accepting their apologies. 

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

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