SC widens ambit of misleading ads to include FMCG cos; asks govt for action taken since 2018

If you were surprised by the Supreme Court’s tough stand against Patanjali and its key people, it appears to have been the proverbial trailer and not the proper film, which is now unfolding with the apex court asking the Centre to explain what action has it taken against fast moving consumer goods companies to tackle the menace of false campaigns. The SC direction came on Tuesday, April 23, as in a clear case of widening its crackdown that began with Patanjali, the court asked as many as three ministries for information.

The bench of justices Hima Kohli and Ahsanuddin Amanullah said the Union ministries of consumer affairs, information and broadcasting, and information technology have to file affidavits delineating the measures they have taken to prevent misuse/abuse of consumer laws since 2018.
The apex court underscored its unrelenting mood on this issue as it took a dig at Patanjali Ayurved’s public notice tendering unqualified public apology. The court asked whether the size of the apology published in 67 newspapers was as prominent as the full-page advertisements that it normally issued for its ayurvedic products.

The court also directed Patanjali to submit within two days the “original” apology published in newspapers so that it could measure the prominence of the apology. “Cut the actual newspaper clippings and keep them handy. For you to photocopy by enlarging, it may not impress us. We want to see the actual size of the ad. When you issue an apology, it does not mean that we have to see it by a microscope,” remarked a bench comprising justices Hima Kohli and Ahsanuddin Amanullah.

“We want to see the newspaper in the original. Which page, where it was published, etc,” Justice Amanullah instructed Mukul Rohatgi, the advocate for Patanjali.
For the record the petition against misleading communication for its products was originally filed by the Indian Medical Association (IMA).

The bench also made it clear that their objection against unethical advertisements was not limited to the instance of Patanjali alone. The justices said their point applied to all FMCG companies carrying out this practice to the detriment of public interest. In the words of the bench, they have been taking the “public for a ride, in particular affecting the health of babies, school-going children and senior citizens who have been consuming products on the basis of the said misrepresentation”.

“This is under the scrutiny of the Union government. If these advertisements target babies and children, if that is happening, the Union has to activate itself,” Justice Kohli said.

The apex court also said the implementation of the relevant provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act, the Drugs and Cosmetics Act and the Consumer Protection Act and the related rules also needed scrutiny.

Justice Kohli further clarified that the court was not favouring any particular party or agency or authority and was adjudicating over an issue that was directly concerned with public interest.

The court also came down heavily on the Centre and directed it to explain its August 2023 letter by the Ministry of Ayush to the licensing authorities all over the country asking them to refrain from taking any action under Rule 170 of Drugs and Cosmetics Rules, 1945. Incidentally, during their argument, Patanjali cited the disarmament of Rule 170 as an excuse to continue with their advertisements.

The bench also directed its ire against the IMA by asking it to “put its house in order” vis-à-vis the continuous endorsement of expensive and unnecessary allopathic medicines and treatment to patients. It also made the National Medical Commission as a party to assist the court.

Incidentally, on April 22, Patanjali published advertisements in some newspapers tendering an apology, admitting it had made a “mistake of publishing advertisements and holding a press conference even after our advocates made a statement in the apex court”.

The SC directed Ramdev and Patanjali managing director Acharya Balkrishna to issue additional advertisements expressing their remorse. The next hearing will be on April 30.

Earlier, on April 10, the apex court refused to accept the apology that Ramdev and Balkrishna offered to the court related to misleading advertisements.