For starters, the – which was established by the Medicines and Cosmetics Act 1940 – specifically prohibits any medicine from claiming or claiming to actually prevent or cure the diseases listed in Schedule J of the rules. The diseases included in this list are “diabetes” (#14) and “liver disease” (#33).
Rule 106 is distinct from Rule 106 which was only recently inserted into law by the Ayush Ministry in 2018 after the Parliamentary Standing Committee on Health considered the issue of false advertising by the whole of the Ayush industry. This particular provision specifies that “the manufacturer or its agent, of Ayurvedic, Siddha or Unani medicines, will not participate in the publication of any advertisement relating to a medicine for the purpose of diagnosis, cure, mitigation, treatment or prevention of any disease, disorder, syndrome or condition”.
For Ayush drugs that do not fall into this category, the rules create a mechanism in which national drug control authorities must screen advertisements before they can be published.
In addition to the above provisions of the Drugs and Cosmetics Act, there is also the . Section 3 of this legislation prohibits the publication of advertisements for “the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the schedule”.
The list of diseases and conditions mentioned in the annex to the law includes “diabetes” (no. 9) and “heart diseases” (no. 26).
One by the Department of Health in 2020 sought to add “liver disorders” to the schedule. The veracity or otherwise of the content of these advertisements has no consequences under this law. The penalty under this law for publishing illegal advertisements is six months in prison and/or an unspecified monetary penalty. A second conviction could result in a one-year prison sentence. The proposed amendment sought to increase the sentence to a minimum of two years and Rs 10 lakh, and five years and Rs 50 lakh for a second conviction.
The job of effectively enforcing this law is the responsibility of state drug inspectors.
While it is doubtful whether the provisions of the Medicines and Cosmetics Act apply to publishers like newspapers, the Medicines and Magical Cures (Advertising Improper) Act most certainly does. However, in our experience, based primarily on research in Maharashtra and Andhra Pradesh, most drug inspectors never sue the media for breaking this law. Usually, most drug inspectors only prosecute the manufacturer and fines imposed by judicial magistrates on conviction are usually in the region of Rs 20,000, although the law does not specifically mention an outer limit. Those found guilty are almost never sentenced to prison.
In this situation, where the benefits far outweigh the risks of breaking the law, it’s no surprise that industry and the press are playing fast and loose with the law.
The most effective institution to control the publication of these advertisements is the Advertising Standards Council of India, a voluntary self-regulatory body set up by the advertising industry. While ASCI is quite effective at publishing misleading advertisements, given its non-governmental status, it clearly does not have the punitive powers of the state.
The government must urgently reconsider its approach to regulating advertisements by the Ayush industry because, unlike modern medicine, the Ayush industry is not required to establish the safety and efficacy of their formulations. The only way the ayush industry has been regulated is through the regulation of its advertisements.
Even if these meager regulations are not vigorously enforced, it is a crime against the Indian people.
Dinesh Thakur is a public health activist. Prashant Reddy T is a lawyer.