The Supreme Court on Tuesday grilled the Central government on why it asked AYUSH authorities in states and union territories not to take any action against misleading advertisements under Rule 170 of the Drugs and Cosmetics Rules, 1945 (Indian Medical Association & Anr v. Union of India and Ors). The apex court also took critical note that misleading advertisements for Patanjali products, which have been prohibited, are still available on certain online platforms. A bench of justice Hima Kohli and justice Ahsanuddin Amanullah asked Patanjali's counsel if they are going to take any steps to take down the same.
"We want to point out to you, that your misleading ads about your products that have now been prohibited...are still available on various channels on the internet – what are you doing to bring them down?" justice Kohli asked.
The SC also said that the company should not be allowed to sell products for which licences were suspended. "If licence is suspended, the product should not be sold. We have to give a notice (otherwise)! The moment it is suspended, from that day they cannot do. The same should be on hold. Take it off," justice Amanullah observed.
The Court was hearing a plea filed by the Indian Medical Association (IMA) against an alleged smear campaign carried out by Patanjali Ayurved and its founders, Baba Ramdev and Acharya Balkrishna, against the COVID-19 vaccination drive and modern medicine.
Rule 170 was added to the 1945 Rules in 2018. It prohibited the advertisement of Ayurvedic, Siddha and Unani drugs without approval by the licensing authority in the State or Union Territory where the drug was manufactured. The aim of the rule was to tackle misleading advertisements.
The bench was told today that the said the Rule was challenged in several High Courts. The Delhi High Court eventually asked the Central government to re-examine the Rule after getting expert advice.
Since the Rule was yet to be reconsidered, the Central government had called for States to refrain from invoking it against misleading advertisements, the Court was told today.
The Bench, however, was not convinced by this explanation.
"Union of India then got benefit of recommendations (on Rule 170). Without taking a decision (on reconsidering Rule 170 of Drugs and Cosmetics Rules), why are saying don't take action under Rule 170? High Court had directed you to take a decision. As of now, the law is still there. Why without taking decision, you said don't take steps under Rule 170?" Justice Amanullah asked.
"Until then (a decision is taken), it is good law. It applies!" Justice Kohli added.
"Let us be clear, you (Central government) have all the power, you can reconsider the rule, you have done that. But it is glaring! The rule (Rule 170) was not withdrawn. Can you justify that a law existing today was not implemented? Is it permissible under the Constitution of India?" Justice Amanullah went on to observe.
"By an administrative act, can you keep that regulation on hold?" Justice Kohli further queried.
Representing the Central government, Additional Solicitor General (ASG) KM Nataraj assured the Court that a final decision on Rule 170 would be taken at the earliest.
The Court proceeded to discuss the complaint redressal mechanism in place to tackle misleading ads in general. It took note that once a complaint is received by the Centre, it simply forwards the same to the state authorities to take action.
In this context, the Court questioned whether the present law effectively addresses consumer complaints against misleading ads.
"Complaints are only forwarded to the concerned States. We don't know what happened to those complaints? Even if there is lot of regulatory mechanisms, and there is no cohesion, consumer would never know what happened to the complaint. You are forwarding, that is the end of your mandate...Won't it be necessary to show if complaint was acted on? Otherwise consumer would only get fed up," Justice Kohli observed.
Justice Amanullah added that the impression the Court was getting was that the mechanism in place was not effective.
"The Court's focus is the public. Whoever tries to come in way of public interest is going to face our onslaught," he further observed.
The Court also briefly questioned if the Advertising Standards Council of India (ASCI) had sufficient teeth when it comes to acting against misleading or objectionable advertisements.
"If ASCI is the only recommendatory body, what is the value of their recommendations if you don't given them power?" the Court asked.
The Court further questioned what exactly the Central Consumer Protection Authority (CCPA) has done to that ensure advertisements are in accordance with law. After being apprised of the CCPA's past actions, the Court said,
"For an entire country, if they are supposed to take suo motu action, is it not a paltry number?...Awareness notifications are all very well for those in legal community, but for an ordinary consumer?"
The Court added that it wished to hear more submissions on these larger issues concerning consumer rights before rising for the lunch break.
