India: Magic Drugs And Misleading Advertisements

Introduction

In recent past, a huge number of Objectionable advertisements relating to alleged cures for venereal diseases, stimulants and conditions peculiar to man & women have been published in various newspapers and magazines. Due to unawareness, innocent people get into the trap of false belief and not only end up losing large sum of money but also suffer from immense harm and bodily injury. People involved in promoting such activities can be a real menace to the society if kept unobserved and therefore deserve severe censure and penalty.

With a view to control the advertisement of drugs in certain cases and to prohibit the advertisement for remedies alleged to possess magic qualities and to provide for matters connected therewith, the Drugs and Magic Remedies (Objectionable Advertisement) Act was enacted in 1954 (herein after referred to as DMR Act).

The main objective of DMR Act is to control the advertisement of drugs in certain cases and to prohibit the advertisement connected with remedies alleged to posses magic qualities and to provide for matters connected therewith. Under the DMR Act, the definition of "Magic remedy" includes a talisman, mantra, kavacha and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals.1

Examples and instances of Misleading Advertisements include

  • Promise to cure horrible diseases like cancer and AIDS while Drugs and Magic Remedies Act states that no medical practitioner should give a claim to cure for such diseases as specified in the Schedule under section 3.
  • A medical practitioner advertising his clinic and claiming that he offered a definite cure for epilepsy; Indian Medical Association (IMA) in this case declared him a fraud based on the findings of the committee that he was giving his patients lethal drugs in high doses. Then following a complaint from a Consumer, Advertising Standards Council of India (ASCI) held that advertisement violated the Drugs and Magic Remedies (Objectionable Advertisements) Act. Yet, the practitioner continued to advertise and the drug control departments failed to act, resulting in thousands of consumers falling into the false advertisements.
  • In another case a Young girl, having a short height, caught attracted to wards an advertisement that promises to convert a dwarf into tall and, promised her that she would gain 10 cm in six months through surgery. The so-called correction surgery left her confined to bed.
  • India is the land of spiritualist of babas and sadhus. There has not been a law specifically to prosecute those making false spiritual claims and deceive people.
  • Consumer Education and Research society, Ahmedabad, brought to notice of regulatory authority in Gujarat, sale and promotion of certain health gadgets by Conybio Health Care, in violation of Drugs and Magic Remedies (Objectionable Advertisements) Act. Company was found promoting and distributing sun shade to cure from migraine and sun stroke, socks for acidity, pillow covers for spondylitis, palm guards for Parkinson's disease, eye-shade for sinusitis, T-shirts for high or, low blood pressure, short pants that cure gas, acidity, prostate, piles, urinary system problems, bed sheets for paralysis strokes. When the regulator asked the company to produce scientific evidence to support the effect of infrared rays which it claimed to be present in the products, the company said it had never undertaken such studies by any recognized Indian Misleading Advertisements and Consumers Institute. Subsequently, the regulator prohibited the sale and promotion of the products.2
  • False and misleading advertisements pertaining to health cures can be found in abundance on the World Wide Web too. Among such websites were those that promoted slimming and weight loss cures; all purpose pills that alleviated anything from arthritis, diabetes, hypertension, heart disease to kidney problems, tuberculosis, asthma and hepatitis; herbal products and magnetic devices that treated anything from headache and back injuries to insomnia, arthritis, and sprains.

Prohibition of Misleading Advertisements Relating to Drugs: Regulatory Measures

Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, seeks to curtail undesirable advertisements pertaining to drugs and magic remedies because advertising is considered to encourage self-medication of harmful drugs. The Act lists the diseases and disorders in respect of which advertising is banned (Under Section 3 and Schedule of the Drugs and Magic Remedies Act, 1954.

  • Section 3 of the Act articulates that no person shall take any part in the publication of any advertisement promoting a drug or leading to the use of a drug for specific cure.
  • Section 3 further prohibits any advertisement promoting drugs for diagnosis, cure, mitigation, treatment or prevention of any disease; disorder or conditions as specified in the Schedule.
  • Section 4 of Act forbids advertisements relating to a drug if the advertisement contains any matter which directly or indirectly gives a false impression regarding the true character of the drug or Makes a false claim for the drug or is otherwise false or misleading.
  • Section 5 of the Act prohibits advertisements of magic remedies for treatment of certain diseases and disorders.
  • Any person who contravenes the provisions of Section 3 or Section 4 is punishable. On the first conviction, with imprisonment up to two years, and with fine up to two thousand rupees. In the event of a second or subsequent conviction, with imprisonment for a period ranging between six months and five years and also with a fine ranging between ten thousand rupees and one lakh rupees.

Lacuna in Law

However, in the present scenario the law is somewhat out modeled and outdated. While it prohibits misleading health claims in the print media; it has no provision to tackle the advertisements that may appear on the television or the internet. That there has not been a law specifically to prosecute those who makes false spiritual claims and deceive people. As such there is an immediate need for not only to formulate a strict law but also of a strict vigil on the various claims made by unscrupulous practitioners about their claims for curing different ailments and to punish the defaulters accordingly.

Remedies to prohibit Drug & Magic Remedies misleading Advertisements

  • There is need for self regulation in advertising therefore, the Advertising Standards Council of India (ASCI) should adopt a Code for Self Regulation which would ensure that advertisement should be such that there is no violation of the code of self regulation.
  • It is necessary to identify the spots where the consumers are required to be cautioned in order to prevent them from being deceived by such advertisements. This could be done by way of advertising in buses, metro or railway platforms.
  • Disciplinary action must be taken against doctors who advertise their services or against those who participate in advertisements for promoting a particular medicine, vitamin or drug.
  • People should avoid self-medications via advertisements. A medicine that promises to relieve from ailments, such as joint pain etc should not be believed unless it is prescribed by a certified medical practitioner.
  • To strengthen the DMR Act, a member committee should be structured which may include drug controllers from different states, doctors and pharma association representatives.
  • In addition to amending law, Government should establish a sovereign system to monitor the execution of law and ensure its inflexible enforcement.
  • Corrective advertisements are also very essential and necessary in order to ensure that the impression created by a false or misleading advertisement is corrected through a series of advertisements.
  • "Pre-clearance" (pre-vetting) is another mode to avoid false and misleading ads. This involves evaluation of ads by self regulatory body before they are published or broadcast.
  • It is necessary to provide severe punishment & mandatory jail term for advertising magic cures.
  • Cine stars and celebrities should also caution against endorsing such misleading ads of magic remedies & drug products. There should be legal provisions to prosecute them as well.
  • As major ayurvedic companies are being scanned for dubious claims promising magical remedies. For checking on Ayurvedic fake products, more number of ayurveda drug inspectors should be recruited in every state.
  • Food and Drug Administration (FDA) should plan to pull the plug on television channels that offer air time to promote medicines which guarantee to cure joint pain, impotency and weight reduction etc.

CONCLUSION

In order to protect consumer interest, the government should establish an independent broadcast regulator who will draw up a strict code of practice particularly for telemarketing services so that only those products and gadgets that do not go against Drugs and Magic Remedies Act and have proven significance are allowed to be endorsed in media. As for other advertisements that are found to be false or misleading, corrective advertisements are the best solution. Another option is to revitalize the Monopolies and Restrictive Trade Practices Commission (MRTPC) as Unfair Trade Practices Commission with definite purpose of checking illegal advertisements. Consumers and their organizations must assert their rights against dishonest businessmen indulging in such a practice and bring such cases to the notice of the enforcement group, which in turn have to play the role of a watch dog of public interest.

Footnotes

1 Drugs & Magic Remedies (Objectionable Advertisement) Act, 1954

2 . CERS press release, Nov 21, 2003

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
S.S. Rana & Co. Advocates
Singh & Associates
Global Jurix, Advocates & Solicitors
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
S.S. Rana & Co. Advocates
Singh & Associates
Global Jurix, Advocates & Solicitors
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions