Contributed by: Advaya Legal
“The very first law in advertising is to avoid the concrete promise and cultivate the delightfully vague.” – Bill Cosby.
It appears that the brand managers of Baba Ramdev’s company, Patanjali Ayurved (Patanjali) may have missed this important trick of the trade. As the entire medical world frantically scrambles to find a vaccine and cure for Covid-19, a sensational claim was made by Patanjali that it has developed a 100% cure for COVID-19 through "Coronil and Swasari medicines”. The euphoria appeared to be short-lived as the Ministry of Ayurveda, Yoga, and Naturopathy, Unani, Siddha, and Homoeopathy (AYUSH) stopped Patanjali in its tracks.
Pertinently, AYUSH had issued a Gazette Notification on April 21, 2020, stipulating the manner in which research studies on COVID -19 have to be undertaken with AYUSH interventions/medicines. Patanjali has so far failed to disclose the basis of the claim and the details of the scientific study that it relies on.
Such unilateral claims in the middle of a pandemic, without following the due process mandated by AYUSH and other statutory authorities, is a clear violation of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. Patanjali has not applied for license of any kind of medicine related to COVID -19 nor was it given any license in this regard, which again is in violation of the Drugs and Cosmetics Act, 1940. Uttarkhand’s AYUSH Ministry has issued a notice to Patanjali under Rule 170 of the Drugs and Cosmetics Act, 1940 that makes it mandatory for companies to seek permission from the licensing authority before advertising a product in print or electronic media. Several states including Maharashtra and Rajasthan have also threatened Patanjali with legal action if the medicines are advertised or sold in the state without approval from AYUSH.
PATANJALI NOT THE ONLY ONE
Going by recent media reports, Patanjali is not alone in this. Advertising Standards Council of India (ASCI) found 50 campaigns by ayurvedic and homeopathic drug makers offering cure for COVID-19 in April alone. For example, Arihant mattress released an advertisement in a Gujarati newspaper that went viral on social media for its claim that its mattress was ‘corona-resistant’ and ‘anti-corona virus’! The owner was booked by the Maharashtra FDA under various laws including the Disaster Management Act, 2005, and the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. The other conspicuous one was the advertisement taken out by the Karnataka Poultry Farmers and Breeders Association and Vencobb that claimed that eating chicken boosts immunity. Acting on a complaint filed by the People for the Ethical Treatment of Animals, ASCI ordered that the online advertisement be taken down.
There are several such examples in the mainstream media and perhaps many more in the regional language media. Some advertisers today are trying to link their products directly or indirectly to Covid-19 and are blatantly peddling products through false or misleading claims related to Covid-19.
So what can be done about this? The short answer is that there are enough and more laws that can be invoked to stop such misleading claims. A few of these are briefly discussed below:
Advertisements in India are regulated under the Code for Self-Regulation formulated by ASCI, which is a self-regulatory non-government organisation that aims to ensure that all advertisements adhere to fair and just legal practices. Several guidelines have been issued by ASCI on advertisements for food and beverages, non-food items, beauty and healthcare products, etc. to ensure that truthful information is provided to customers. Currently, ASCI can only make recommendations to the advertiser to remove the advertisement but cannot compel their removal or grant any interim relief or compensation
Under the Cable Television Network Regulation Act, 1995, no person is allowed to transmit or re-transmit through a cable service any advertisement that is not in conformity with the Code for Self-Regulation formulated by ASCI. The law prescribes imprisonment up to two years or fine or both for the first offence and imprisonment up to five years or fine or both for a subsequent offence.
The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 specifically prohibits false and misleading advertisements relating to drugs, besides remedies claiming magical or miraculous properties. The law provides for imprisonment up to six months or fine or both for the first offence and imprisonment up to one year or fine or both for a subsequent offence.
False or deceptive advertisements pertaining to food are specifically governed by the Food Safety and Standards (Advertising and Claims) Regulations, 2018 and enforced by the state food safety officers. Violations attract a penalty of upto Rs. 10 lakhs.
The Maharashtra Government has specifically come out with the Maharashtra COVID-19 Regulations, 2020 that requires everyone using print or electronic or social media for dissemination of any information regarding COVID-19 to ascertain the facts and obtain prior clearance of the Commissioner, Health Services, Director of Health Services (DHS-I & II), Director, Medical Education & Research (DMER) or the Collector as the case may be. This has been issued to prevent the dissemination of unauthenticated information on COVID-19. Any person found violating these Regulations will be deemed to have committed an offence punishable under Section 188 of Indian Penal Code, which prescribes punishment for disobeying the orders of a public servant.
Another law that may be relevant is the Disaster Management Act, 2005. The COVID -19 outbreak comes under the ambit of a Disaster under this law. Any person making false claims on COVID -19 will be deemed to have committed an offence punishable under Section 54 of this law, which provides for imprisonment of upto one year or fine or both.
While responsible business promotion can inform and educate, misleading promotion has the potential to adversely influence treatment decisions and put a patient's health at risk.
Contributed by Advaya Legal
The above article has been authored by Mr. Ramesh Vaidyanathan(Managing Partner) and Ms. Nidhi Tandon(Associate).