The Regulatory Challenges of Misleading Advertisements in India
Context:
Patanjali Ayurved was recently in news for the controversies surrounding misleading advertisements about their products for which the apex court banned it from marketing its products until further orders are passed.
- It highlights the critical issue of commercial interests potentially superseding public health and safety concerns, especially in the context of health and medicine.
Relevance:
GS-02 (Governance)
Facts for Prelims:
- Section 4 of the DOMA:
- Publishing a misleading advertisement is punishable upto 6 months of imprisonment and/or a fine for the first offence. On the second offence, the period of imprisonment can extend to one year.
- Section 2(28) of the Consumer Protection Act, 2019:
- It deals with the ‘misleading advertisement’.
- Section 89 of the CPA:
- It contains more stringent punishments for false or misleading advertisements.
- First time violations will be penalized with up to Rs 10 lakh and imprisonment for a term which may extend to two years.
- Subsequent violations may attract penalties up to Rs 50 lakh and imprisonment for a term which may extend to five years.
Dimensions of the Article:
- Broad Understanding of the Issue
- Causes of the Issue
- Constitutional Provisions on the Issue
- Central Consumer Protection Authority (CCPA)
- Consumer Protection Act,2019
Broad Understanding of the Issue:
- The issue assumes paramount importance as it voilates fundamental rights guaranteed under the Constitution, and the integrity of regulatory frameworks governing the pharmaceutical and healthcare industries.
- Misleading advertisements can misinform consumers, undermine trust in evidence-based medicine, and potentially endanger lives by promoting unproven or harmful products.
- Legal Arguments against:
- The Indian Medical Association (IMA) argue that the advertisements were false and misleading which is in direct violation of the Drugs & Other Magical Remedies Act, 1954 (DOMA), and the Consumer Protection Act, 2019 (CPA).
- Violation of MoU signed by the Ministry of AYUSH and the Advertising Standards Council of India.
Causes of the Issue:
- Lax Regulatory Oversight: The lack of effective enforcement of existing laws and regulations, such as the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, allows companies like Patanjali Ayurved to flout advertising standards with impunity. Inadequate monitoring and enforcement mechanisms enable misleading advertisements to proliferate, posing risks to public health.
- Political Patronage: Allegations of tacit support from government authorities, both at the central and state levels, raise concerns about regulatory capture and undue influence on regulatory agencies.
Constitutional Provisions on the Issue:
- Right to Health: Article 21 of the Constitution although doesn’t explicitly guarantees the right to health, it however is implied and is an integral part of the right to life.
- Freedom of Speech and Expression: While Article 19(1)(a) enshrines the freedom of speech and expression, it is subject to reasonable restrictions under Article 19(2) to prevent the dissemination of misleading or false information that may harm public health or morality.
- Directive Principles of State Policy: The Directive Principles of State Policy, particularly Article 47, mandate the state to raise the level of nutrition and standard of living and improve public health, emphasizing the state’s responsibility to protect citizens from deceptive advertising practices that jeopardize public health and safety.
Central Consumer Protection Authority (CCPA) :
- The Central Consumer Protection Authority (CCPA) was established w.e.f. 24th July 2020 under Section 10 of the Consumer Protection Act, 2019 under the Ministry of Consumer Affairs, Food & Public Distribution.
- Objective: To promote, protect and enforce the rights of consumers as a class.
- It will be empowered to conduct investigations into violations of consumer rights and institute complaints/prosecution, order recalls of unsafe goods and services, order discontinuation of unfair trade practices and misleading advertisements, and impose penalties on manufacturers/endorsers/publishers of misleading advertisements.
- It also acts to prevent unfair trade practices and ensure that no person engages in unfair trade practices.
- Composition:
- Chief Commissioner as head.
- Two other commissioners as members — one of whom will deal with matters relating to goods while the other will look into cases relating to services.
Consumer Protection Act,2019:
- The Consumer Protection Act, 1986 was replaced by the new the Consumer Protection Act, 2019 with an intention to widen its scope in addressing consumer concerns.
- The Act came into force in July 2020.
- It aims to empower consumers to help them in protecting their rights through various notified rules and provisions.
- The new Act administers offences such as providing false information regarding the quality or quantity of a good or service, and misleading advertisements.
- It also specifies action to be taken if goods and services are found “dangerous, hazardous or unsafe”.
