By another name: On misleading advertisements, fake medicine
Courts should act against fake medicine, not just control advertising
On August 27, a Bench of the Supreme Court of India found itself reaching, once again, for idioms over a matter involving misleading advertisements of ayurveda, siddha, and unani products. Earlier this year, another Bench had concluded proceedings against Patanjali Ayurved over its defiance of an order to not publicise unproven or unprovable medicinal claims attached to its products. Towards the end of that matter, various State-level regulatory agencies were finally roused to act against Patanjali Ayurved over these claims while the Court ordered it to publish media advertisements apologising for its actions. While the responses of the State bodies to the company are still evolving, the Court’s own verdict seemed to embody a belief that nothing more could be done — and this belief casts the Court’s current ire against the Ministry of AYUSH in a particular light. India’s drug manufacturers and regulators are caught between ensuring high quality, which leads to higher manufacturing costs, while keeping consumer prices down so that patients can access the drugs they need. Unfortunately, neither regulators nor manufacturers have navigated this tension in the patients’ favour. The AYUSH Ministry’s actions have further complicated this scenario by allowing businesses to register all sorts of products as “Ayurvedic” (as illustrated in the case of its licence, and later cancelled, to a Bengaluru-based company to sell milk as “Ayurvedic proprietary medicine”) and by attempting to evade existing quality rules, presumably to grease the wheels of businesses.With the Ministry’s cynical attempt now to sidestep Rule 170 of the Drugs and Cosmetics Rules 1945, which penalises misleading advertisements of ayurveda, siddha, and unani products, the Court confronts an old tendency in a new disguise. Public apologies and post facto action by regulatory bodies may have been the end of the line against one company. The Court may also seem sated by a demand, as it spelled out in its May 7 order, that all advertisers self-declare that they will not publish misleading advertisements. But similar concessionary measures will falter against a Ministry. Medicine quality and manufacturer inspections are disuniform, more so in the alternative medicines space, and regulating advertisements has emerged as a last-ditch backstop against bad products entering the market. In the face of progressively weakening protections against what is ultimately fake medicine, the most preferred outcome in the present matter would be for the Court to look at past declarations — self-made or otherwise — and into rectifying the quality-control regime, particularly to empower it, protect it from political capture, and bring alternative medicines under its purview.