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.
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.
1 Drugs & Magic Remedies (Objectionable Advertisement) Act, 1954
2 . CERS press release, Nov 21, 2003
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