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This article is written by Chandana pursuing B.Com.LLB(Hons) from The Tamil Nadu Dr Ambedkar Law University (SOEL). This article deals with a study on Drug and Magic Remedies (Objectionable Advertisement) Act, 1954.

Introduction

Advertisement and media are playing a significant role in our daily lives. The drug industries to promote the growth in their industries are often prone to promoting misleading advertisements of drugs, which is not only legal to do but also costs the life of the human being who buys and consumes the drugs. To avoid such misfortunes the Central Government has brought forward an enactment in the year 1954 called Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 and Drugs and Magic Remedies (Objectionable Advertisement) Rules, 1955.

Legislative Intent of Drugs and Magic Remedies Objectionable Advertisement Act, 1954

In the case of Hamdard Dawakhana and anr., v The Union of India and others (AIR 1960) the legislative intent of the act was challenged.

Facts of the case 

The petitioners challenged the constitutional validity of the Drug and Magic Remedies Objectionable Advertisement) Act, 1954 under Article 32 of the Indian Constitution 1949.

The allegations brought forward by the petitioners was that the actions taken against them violated their fundamental rights under: 

  1. Article 19(1)(a) of the Indian Constitution 1949 provides advertisement as a vehicle of means of which freedom of speech and expression is guaranteed.
  2. Article 19(1)(f) of the Indian Constitution 1949 which is now omitted.
  3. Article 19(1)(g) of the Indian Constitution 1949 states respondents are violating their fundamental right to practice any profession or carry on any occupation, trade and business.
  4. Article 14 of the Indian Constitution 1949 on the ground of discrimination.
  5. Article 21 of the Indian Constitution 1949.

The petitioners also opined that soon after the Drugs and Magic Remedies Objectionable Advertisement Act, 1954 had come into operation, they had faced a lot of difficulties in the matters of publicity of their products and various objections were also raised by the authorities relating to their advertisements. 

The drugs controller on December 4, 1958, gave notification to the petitioners telling them that they were in contravention of Section 3 of the Drugs and Magic Remedies Objectionable Advertisement Act, 1954 and asked them to take back the products that were sent to Bombay and other states along with that controller stopped the sale of forty of the products as mentioned in the petition. 

The petitioners contended that the drugs bore the Unani nomenclature which had been recognised throughout the world for several centuries past and also said that the manufacture of the drugs was against the fundamentals rights and ultra vires and so it should be declared null and void.

The counter-affidavit was submitted by the respondents and stated that the main purpose of the act is to prevent people from self-medicating about various serious diseases and found that some medicines tend to induce people to resort to self-medication by reasons of elated advertisements it was thought it was necessary to put a complete check on. 

The Chopra Committee was formed in 1930 mainly to investigate into the quality and strength of drugs imported, manufactured and sold in India and also recommended the steps for control of such imports, manufacturer and sale in the interest of the public and as such the Chopra Committee Reports the Drugs Act was passed in 1940. 

Judgment

As the object of the Acts were discussed in the Chopra Committee, the implementation of the Act was justified, but the fundamental rights as guaranteed by the Constitution had to be kept in mind. 

Reason of enactment of Drugs and Magic Remedies Objectionable Advertisement Act, 1954 

Below mentioned points are considered to be important reasons for the enactment of Drugs and Magic Remedies Objectionable Advertisement Act, 1954:

  • Before the enactment of this Act, there was no law to punish the unprincipled and unscrupulous people who were engaged in false advertisements and claimed miraculous health, particularly health. 
  • The people were engaged in false advertisements of various drugs and medical remedies were also advertised without any fear.
  • Their advertisements not only possessed a threat to society at large but also to the people who believed in such advertisements and acted accordingly.
  • The government enacted strict rules to prevent the self-medication by the consumers regarding various diseases and conditions.

All about Drugs and Magic Remedies Objectionable Advertisement Act, 1954 

The Drugs and Magic Remedies Objectionable Advertisement Act, 1954 was enacted by the Central government in 1954 to curtail the freedom of the advertisers of the drugs and prohibit the advertisement of drugs, which claimed to have certain magic remedies. Important sections of this act are the prohibition of advertisement of certain drugs for the treatment of certain diseases and disorders.

Prohibition of advertising of certain drugs for the treatment of certain diseases and disorders

Section 3 of the Drugs and Magic Remedies Objectionable Advertisement Act,1954 states that no person shall engage themselves in the publication of advertisement of drugs which will as a consequence of the publication of the advertisement, bring about the following consequences:

  • the use of drugs will either results in procurement of miscarriage of women or it will prevent the conception of the women; or
  • the use drug will either results in the maintenance or improvement of the capacity of human beings for sexual pleasure; or
  • drugs dealing with the menstrual disorder in women in; or
  • drugs dealing with diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition which have been specified in the schedule or any other disease or condition as specified under the Drugs and Magic Remedies Objectionable Advertisement Act, 1954.

Prohibition of misleading advertisements related to drugs 

Section 4 of the Drugs and Magic Remedies Objectionable Advertisement Act, 1954 provides that no person shall take a part in the publication of advertisement relating to a drug if that advertisement contains any one of the matter as mentioned below which may result either:

  • directly or indirectly gives a false impression regarding the true character of the drug; or
  • is engaged in making a false claim for the drug; or
  • Is engaged in misleading in any material particular.

Prohibition of advertisement of magic remedies for the treatment of certain diseases and disorders

Section 5 of the Drugs and Magic Remedies Objectionable Advertisement Act, 1954 provides that no person shall be allowed to work on administering magic remedies and shall not engage themselves in the publication of the advertisement of magic remedies for the treatment of certain diseases and disorders as mentioned under Section 3 of the Drugs and Magic Remedies Objectionable Advertisement Act, 1954.

Prohibition of import into, and export from, India of certain advertisements 

Section 6 of the Drugs and Magic Remedies Objectionable Advertisement Act, 1954 states no person shall be allowed to import or export from, any documents which are prohibited under Section 3, 4 and 5 of the Drugs and Magic Remedies Objectionable Advertisement Act, 1954.

Penalty for contravention

Section 7 of the Drugs and Magic Remedies Objectionable Advertisement Act,1954 states if any person contravenes the Act or any rules made under this Act are:

  • For the first conviction, the person shall be liable for either imprisonment which may extend to six months or with fine or both if the situation arises.
  • For the second time involving the same offence, the person shall be liable for either imprisonment which may extend to one year or with fine or both if the situation arises.

Jurisdiction to try offences

Section 10 of the Drugs and Magic Remedies Objectionable Advertisement Act,1954 states that no court inferior to that of a Presidency Magistrate of the first class shall be allowed to try an offence which is punishable under this act.

Case laws related to misleading of advertisement

Bhanwar Kanwar vs R.K.Gupta & Anr 

  • In this case, an advertisement was published in the newspaper “JanSatta” by the respondent which offers a total cure of fits with Ayurvedic Medicine by Dr R.K Gupta. 
  • The appellant who read the newspaper brought her son to the clinic. The appellant was made to pay INR 2150 as consultancy charges and the cost of medicines. 
  • The medicines given by respondents were claimed to be the combination of a hundred herbs. 
  • As the appellant son took the medicines regularly his health conditions started to get worse day by day. 
  • The patient used to get fits only when he was suffering from high fever but now even without fever he used to get fits.
  • After continuing the treatment for five years an enquiry was made regarding the prescription of tablets.
  • On the enquiry, it was found that the small white tablets which were prescribed by the doctor were selling which is not meant for children and it was also found that respondents were passing off the allopathic medicines as ayurvedic medicine for which he was not competent to prescribe. 

Judgment

The doctor was held liable for medical negligence, criminal negligence, misleading advertisement and breach of duty and was liable to pay INR 5 lakhs as compensation to the appellant.

Ajay Gautam v Amritsar Eye Clinic & Ors.

  • In this case, the doctors were engaged in unfair trade practice by publishing a misleading advertisement in the newspaper.
  • After reading the advertisement in the newspaper the complainant got an impression that the defective vision could be corrected to the normal vision by the use of an excimer laser machine acquired by the doctor.
  • The correction of the complainant’s vision did not achieve completely as it was mentioned in the newspaper and therefore the doctor and hospital were guilty.

Judgment

The doctor and hospital were guilty for indulging in unfair trade practices and for violating the code of ethics regulating by publishing the misleading statement and were liable to pay INR 1 lakh to the complainant.

Drugs and Magic Remedies Objectionable Advertisement Rules,1955

The Central Government enacted the Drugs and Magic Remedies (Objectionable Advertisements) Rule, 1955. Below are a few important rules:

Scrutiny of misleading advertisements related to drugs

Rule 3 of the Drugs and Magic Remedies Objectionable Advertisements Rule, 1955 states that any person, authorised by the state government in this behalf, it is satisfied with an advertisement relating to drugs, contravening the Section 4 of the Drugs and Magic Remedies Objectionable Advertisement Act 1954, then that person may give directions to the manufacturer, packer, distributor and seller to hand over a composition of the drug for holding the scrutiny of the advertisement and checking upon if it complies with the directions issued by the authorised person. Any person contravening the said order shall be liable under Section 7 of the Drugs and Magic Remedies Objectionable Advertisement Act, 1954.

How advertisement may be sent confidentially

Rule 5 of the Drugs and Magic Remedies Objectionable Advertisements Rule, 1955 states documents which contain the advertisements relating to the drugs as mentioned in clause(c) of sub-section (1) of Section 14 shall send a copy of the advertisement to the registered medical practitioner or the retail chemist or the wholesale chemist through the registered post.

Prohibition of advertisement of drugs for the treatment of disease 

Rule 6 of the Drugs and Magic Remedies Objectionable Advertisements Rule, 1955 states that no person shall be allowed to take part in the publication of the advertisement relating to the drugs which could be used for diagnosis, cure, mitigation, treatment or prevention of any disease, disorder, or condition specified in the schedule which is annexed to the rules.

Conclusion

Keeping the consumer’s interest in mind, India should adopt the legal policies which are prevalent in other countries. In Canada, the Canadian Pharmaceutical Advertising Advisory Board has been established. The important role of this board is that before the advertisement of the drug is displayed for the promotion, the doctors or health providers have to get approval from the board to advertise their drugs. The board consists of representatives of medical journals, physicians, consumer groups, pharmaceuticals and advertising boards. India should adopt a legal policy to prevent misleading advertisements relating to drugs.

References


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