Objectionable Advertisements Act, 1954
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This Blog is written by Sidrah Jami from Amity Law School, Noida. Edited by O.S.S. Sarada Rasagnya.
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ABSTRACT
Drugs are considered to be one of the most evolving items worldwide. It is used for medicinal purposes and the advertisement of drugs is legalized in various countries. The paper firstly provides an introduction to drugs. Secondly discusses the significance of the development referring to The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and studies the impact after the implementation of the act. Thirdly, the paper focuses on the statutory provision of the act like the prohibition of advertisements of drugs, power of the Gazetted Officer to enter and search the place or provisions related to indemnity, jurisdiction or forfeiture of articles. Fourthly, the paper discusses various case laws in relation to the act and provides an analysis of the same. The last section provides a conclusion.
INTRODUCTION
Drugs play a very crucial role and are essential for supervising the illness and diseases of human life. They are one of the emerging trends in the upcoming world. They are basically a combination of substances or substances which help in improving the state of mind and body. It provides some type of psychological and physiological effects on the body. The effects of drugs depend on the amount ingested. They act as stimulants when they’re taken into high amounts whereas they act as sedatives if they are taken into low amounts. They are mostly taken to speed up or slow down the functioning of the body. The medical practitioner has the responsibility of prescribing various drugs for the treatment of diseases. These drugs are mostly used by elders all around the world. Drugs play an important role in curing diseases in animals and humans. In some countries, advertisements of certain drugs are allowed whereas in some countries advertisements of certain drugs are not allowed. The pharmaceutical industry has evolved throughout the years and has seen that the use of certain drugs is necessary for curing diseases in living animals. The Indian Government does not treat drugs like normal customer products. It provides certain restrictions or limitations on the advertisement, procurement and sale of drugs in India.
SIGNIFICANCE OF THE DEVELOPMENT
The pharmaceutical industry witnessed that certain drugs are necessary for India. The Indian Legislature implemented The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. This act focused on controlling the advertisement of the drugs existing in India. It focuses on providing proper checks and balances that are related to the advertisements for drugs. It prohibits the use of advertisements of drugs and remedies that have magical properties. The act deals that any amulet, mantra or talisman or any other object which has powers to diagnose, cure, prevent or mitigate disease in animals or humans. According to this act, the law prohibits a type of advertising of any drug or any remedy that can firstly improve or stabilize sexual pleasure or secondly induce miscarriage or prevent conception in women or thirdly diagnose, cure or prevent any type of disease or condition which is mentioned in the schedule or fourthly, correction of any menstrual disorder. The act has a schedule which contains 54 diseases like obesity, gall bladder stones, insanity, brain diseases, sexual impotence, cataract, blood poisoning, sterility of women, paralysis, smallpox, fits, diabetes, fever, heart disease, tuberculosis, pneumonia, deafness, typhoid, Acquired Immuno Deficiency Syndrome (AIDS) etc. It provides that there should be a prohibition of advertisements for certain products that have magic qualities in them. The act also later included diseases which do not have remedies. It focused that the changes should be made with the permission of the Ayurveda, Unani practitioners and Drugs Technical Advisory Board.
IMPACT
India has witnessed that drugs play an important role in the pharmaceutical industry. It has been seen that drugs have helped in curing a number of different diseases that have been found in animals and human beings. These drugs have helped in providing relief to the mind and body of human beings. The implementation of Act focuses on laying down certain restrictions on the advertisements of the drugs. It emphasizes that the advertisements should not be used arbitrarily and freely. The advertisements have to be used with restrictions.
STATUTORY PROVISIONS
Section 2 of the act provides definitions. Advertisement is defined as a label, notice, wrapper or any other document that can be produced or can transmit light, sound or smoke or can be made orally. The drug includes medicine that can be used externally or internally for animals or human beings It can also be described as a substance which can be used for curing diagnosis, mitigation, treatment. It is also an article which can affect the organic functioning of the body of animals and human beings. A magical remedy is defined as a mantra, kavacha or any other charm that has powers and can help in curing the diseases in animals or human beings.
A registered medical practitioner is defined as a person who has been qualified and registered as a medical practitioner under the Indian Medical Council Act 1956.
Section 3 of the Act deals with the advertisement of drugs and the treatment of disorders and diseases. A person or company can publish an advertisement if he is prescribed by a registered medical practitioner or after the consultation with the Drugs and Cosmetics Act 1940. No person can publish advertisements if the drug is used for firstly, maintenance or improvement of capacity go human beings for sexual pleasures, secondly miscarriage in woman, thirdly, diagnosis, cure, mitigation, treatment or prevention of any disease and fourthly, the menstrual disorder in women.
Section 4 of the Act deals with the prohibition of misleading advertisements which are related to drugs. Under this, no person will be allowed to publish any advertisement that can firstly make a false claim for the drug secondly if directly or indirectly a false impression is related to the true character of the drug and thirdly if the advertisement is misleading or false.
Section 5 of the Act deals with the prohibition on advertisements of magic remedies for the treatment of certain diseases and disorders. Under this, no person can carry publish an advertisement in reference to the magical remedy that directly or indirectly claims to be efficacious.
Section 6 deals with the prohibition on the import and export of certain advertisements. Under this, no person will be allowed to import or export advertisements that have been prohibited under Section 3, 4, 5. These advertisements are prohibited under Section 19 of the Sea Customs Act 1878.
Section 7 of the Act deals with the penalty. If any person violates any of the provisions given under this act then under the first conviction the person will liable to pay a fine or can be imprisoned that can extend to six months or with both. If there is a subsequent conviction then the person will be liable to pay a fine or can be imprisoned up to a period of one year or both.
Section 8 of the Act deals with the power of entry, search etc. Under this, a Gazetted Officer who is appointed by the Central Government will be allowed to enter and search any place if he believes that an offence is being committed in that place. He is allowed to examine, register and record any document or material object and can seize an object if he believes that the object can tarnish the
evidence.
Section 9 of the Act deals with the offences done by the companies. Under this, if the company violates any of the provisions of the act or committees any offence then the company will be held liable for the same.
Section 10 of the Act deals with the jurisdiction. This section emphasis no court who has a ranking below age Presidency Magistrate or Magistrate of the first class will be allowed to provide punishment of the offence.
Section 11 of the Act deals with the forfeiture. The act says that the court has the power to forfeit any document, article or thing of the person who has been convicted by the court for committing an offence or breach of any of the provisions given under the act.
Section 12 of the Act deals with indemnity. Under this, no suit or any legal proceeding can be brought against a person who has done an act in good faith.
CASE LAWS
Under the case of Amit Singh & Anr. v. The State [1], the issue was whether advertising a drug can be covered under Section 3 of the act or not. The court held that advertisements related to the use and sale of any particular drug cannot be considered similar to the advertisement of new technology in the market.
Under the case of H.T Media Ltd & Ors v. State [2], the advertiser stated that the Ayurvedic drug can help in the cure of blood pressure and sugar. Under this, the name of the drug wasn’t disclosed and Dr Kishan Malik personally advised the patient. The court held that no medicine was advertised.
ANALYSIS
The implementation of the Act has helped in providing restrictions on the advertisement of drugs. The act has provided a new dimension in India. The Act provides a definition of drugs, medical practitioners, advertisements etc. It provides prohibition on advertisements for drugs and the treatment of disorders. It also deals with the prohibition of misleading advertisements. It also provided power to Gazetted Officer who is appointed by the Central Government to enter and seize any place. He is also allowed to examine, record or register the documents. The act also provides that no legal proceeding can be initiated against the person who has done an act in good faith. The act plays an important role in putting restrictions on drugs. The Act has certain lacunas like the importers/ manufacturers are not allowed to provide proper information of the drug to the patient to avoid self-medication. However, if the act allows the manufacturers or importers to provide information on the drugs to the patient, it will help the patient to understand the procedure of treatment that is prescribed by the medical practitioner. It will also help in removing the social stigma that is related to some diseases.
CONCLUSION
In countries like New Zealand or the United States of America, the drugs that are prescribed by the medical practitioner will be allowed for a direct advertisement to the patients/customers. In India, the drugs are not allowed for a direct advertisement to the patients/customers. The act has focused on providing restrictions on advertisements so that the patients do not start self-medication. However, the act also has some disadvantages. The act plays a major role in the pharmaceutical industry and ensures that no drug which is misleading in nature is used by the patients.
REFERENCES
1) https://www.lexology.com/library/detail.aspx?g=7d27f5c3-e959-4f32-803e-8d0c6d684c7e
2) https://www.rfhha.org/images/pdf/Hospital_Laws/Drugs_magic_remedies_(%20advertisement)_act.pdf
3) https://www.medindia.net/indian_health_act/the-drugs-and-magic-remedies-act-1955.htm
4) http://www.drugscontrol.tn.gov.in/pages/application_forms/dmr_drug_objectional_advertisement_act.pdf
5) http://theindianlawyer.in/statutesnbareacts/acts/d64.html
[1] CRL MC 648/2011.
[2] CLR MC 3060/2010.