Critically analysing the Fine Line: Ethical Advertising and Misrepresentations in the Health Industry

INTRODUCTION

Over the years, with the development of technology, the advertising industry has experienced significant changes, transitioning from traditional print media to digital platforms. Nevertheless, this expansion also brings up major problems and threats such as false or misleading claims made by some companies. Legislation such as the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954[1], and the Drugs & Cosmetics Act, 1940[2], are enacted in order to curb deceptive advertisements primarily within the healthcare sector. However, due to the ever-increasing pace of evolving advertisement techniques, enforcing these laws becomes cumbersome. In dealing with these issues, therefore, higher levels of transparency and accountability would be necessary.

One of the ways for companies to maintain their level of ethical standards and for regulators is the ability to adjust to emerging advertising practices in order to protect consumers against deceptive advertisements. Stakeholders should be brought together through integrity and trust in advertising practices so that they can benefit customers and society primarily

CURRENT CASE

Often, the fierce battle between big names in the consumer goods and health industry for their market share results in aggressive marketing techniques. The recent example of Patanjali Ayurved Limited, however, has drawn attention to the ethical issues concerning advertising practices, particularly in the context of sensitive areas such as health claims and pharmaceutical efficacy. It is about the present case involving Patanjali Ayurved Limited on charges based on false claims and misrepresentations, which allegedly involve its products’ medicinal efficacy.

During the recent court proceedings, Patanjali Ayurved Limited made it clear that there were no infringements of any laws connected with advertising and branding. However, the evidence presented by the applicants seems to contradict this claim.

Patanjali Ayurved Limited has failed to comply with the rules and regulations under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954[3]. Patanjali Ayurveda Limited has violated Section 3 of the said Act which specifically prohibits or prohibits the advertisement of certain products for the treatment of certain diseases and disorders including diabetes, heart disease, high or low blood pressure, obesity and asthma.

 CURBING MECHANISMS

SELF REGULATION

Advertising Standards Council of India (ASCI), established in 1985. A body look into the matter related to advertising, advertisers, advertising agencies and the media. This body has formulated a comprehensive advertising code with aim of self-regulation. There are  four guiding principal of the advertisement industry.

1. Truthfulness and Honesty
2. Decency Standards
3. Safety and Responsibility
4. Fair Competition

FUNCTIONING OF ASCI

STEP 1– ASCI receives a complaint regarding an advertisement

STEP 2– ASCI gives advertisers two weeks to respond to complaints.

STEP 3– The complaint and the advertiser’s response are review by the Consumer Complaints Cell (CCC) of ASCI. CCC has 12 non-advertising professionals and nine include advertising professional

STEP 4– If there is no response from the advertiser within the given time, the CCC can make an ex-parte decision.

STEP 5- CCC review whether the ads violates the code of ASCI

STEP 6- If the advertisement violates ASCI code then advertiser is asked to either withdraw the ads or modify it.

STEP 7-  ASCI member are bound by the decision of CCC

LAWS AND REGULATION

DRUGS AND MAGIC REMEDIES (OBJECTIONABLE ADVERTISEMENTS) ACT, 1954[4]

The purpose of this legislation is to protect consumers from misleading claims and ensure that they make informed decisions about their health. By restricting the advertisement of products claiming to cure or treat serious medical conditions (which prohibits under section 3), the law aims to prevent exploitation and promote responsible marketing practices within the healthcare industry. There are other act that put bar on the advertisement of such medical products such as Drugs & Cosmetics Act,1940 , Drugs & Cosmetics Rules 1945 and also prohibit the advertisement of Ayurveda, Siddha and Unani drugs. In general the consumer protection act, 2019[5] came to safeguard the interest of the consumer related misleading advertisement and other exploitation.

JUDICIAL PRECEDENT

• In the case of Cipla Ltd Vs State of Tamil Nadu[6], in which the madras high court held that Cipla faced prosecution for advertising the EK Pill, an emergency contraceptive. The medicine had 1.5 mg of Levonorgestrel in it, but a notice from the Ministry of Health and Family Welfare on April 30, 1992, said that drugs with 0.15 mg of Levonorgestrel could be advertised. The petitioner had first gotten permission from the Drugs Controller General of India (DCGI), but that permission was later taken away. However, it was still legal at the time of the crime. Because of this, the petitions were given relief by the court..
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• In Mahesh Ramnath Sonawane vs. The Union of India[7], a Public Interest Litigation (PIL) was filed by the petitioner to stop the advertising of several medicines on TV, such as Tablet D’ Cold Total, Syrup D’ Cold and Cough, Gelusil MPS (an antacid), Glycodin Cough Syrup, and Benadryl Cough Formula. Section 2(b) of the Drugs & Cosmetics Act, 1940, says what is a “drug” . The court said that this term is broad and includes many things. All kinds of medicines and drugs are included; it doesn’t pick out one type. Because of this, ads can’t suggest that people use drugs to treat or medicate themselves.

PROBLEM WITH CURRENT LAW

• Outdated legislation: The existing law is outdated and inadequate to effectively address today’s healthcare advertising challenges.
• Need for effective measures: There is a need for the law to provide for more effective penalties, such as corrective advertising and substantial fines instead of imprisonment or small fines.
• Punishment: The current law provides for prison sentences of up to six months or fines for first offenses and prison sentences of up to one year or fines for subsequent offences. If we add fine then something good result we can reap.
• Poor implementation: Despite the existing legal framework, poor enforcement by state drug control authorities is generally not enough for the purpose and there are still many misleading advertisements.
• Advertising of indigenous remedies: Many advertisements continue to promote indigenous remedies or medicines for various diseases listed in the Act which was prohibited by the law, indicating low enforcement of the regulations.

SUGGESTION AND RECOMMENDATION

A diverse approach is necessary to address these challenges, which should include effective collaboration between regulatory agencies, industry players, and consumer bodies. The executive arm of the laws and regulations should be empowered to penalize firms found indulging in deceptive or misleading advertisements effectively. In Addititon, more transparency and accountability towards advertising campaigns are fundamental for increasing trust and reliance from consumers.

Simultaneously, more consumer-oriented programs or event need to be in place to improve the customer awareness and education, developing knowledge-based personalities that can critically evaluate health claims and select the right options. This will ensure that we enable our citizens with the skills and resources they require to separate truth from deceit, thus curbing further harm resulting from deceptive advertising while encouraging responsible marketing practices within the healthcare sector.

CONCLUSION

The Patanjali Ayurved Limited case highlights the importance of follow to ethical standards in advertising, especially when it comes to health sector advertising. As consumers increasingly turn to alternative healing methods and natural products, it is imperative that companies should strict to the regulations and guidelines to ensure the safety and well-being of their customers. Only through concerted efforts to combat misinformation and promote transparency can we foster a marketplace that prioritizes integrity and accountability in field of advertising.

Author: Jay Prakash Chandravanshi, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD.

REFERENCE

[1] Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 act no. 21 of 1954

[2] The drugs and cosmetics act, 1940 act no. 23 of 1940

[3] Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954

[4] Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954

[5] The consumer protection act, 2019 act no. 35 OF 2019

[6] Cipla Ltd Vs State of Tamil Nadu CRL.O.P.No.19364 of 2015

[7] Mahesh Ramnath Sonawane vs. The Union of India 2014 SCC OnLine Bom 4008