1. Writ petition concerning misleading advertisements in food and health sectors and the enforcement of the DMR Act 1954, DC Act 1940, and Consumer Protection Act 1986. (Para 4 , 18 , 22 )
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2024 Supreme(SC) 655
SUPREME COURT OF INDIA
HIMA KOHLI, AHSANUDDIN AMANULLAH, JJ.
Indian Medical Association and Another – Petitioners
Versus
Union of India and Others – Respondents
Writ Petition (Civil) No. 645 of 2022
Decided On : 07-05-2024
Advocates appeared:
For the Petitioner(s): Mr. P.S. Patwalia, Sr. Adv. Mr. Prabhas Bajaj, Adv. Mr. Priyanshu Tyagi, Adv. Mr. Amarjeet Singh, Adv. Mr. Rishav Rai, Adv. Ms. Deveshi Chand, Adv. Mr. Dipanshu Krishan, Adv. Mr. Amarjeet Singh, AOR
For the Respondent(s): Mr. K.M. Natraj, Ld. ASG Mr. Sharath Nambiar, Adv. Mr. Vinayak Sharma, Adv. Mr. Rajat Nair, Adv. Mr. Kanu Agrawal, Adv. Mr. Shashank Bajpai, Adv. Ms. Priya Mishra, Adv. Mr. Ishaan Sharma, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Harish Pandey, Adv. Mr. Shafik Ahmed, Adv. Mr. Ajay Sharma, Adv. Mr. Mukesh Verma, Adv. Ms. Priyanka, Adv. Mr. Sunny, Adv. Ms. Avni Singh, Adv. Mr. Jitin Chaturvedi, AOR
For R-9 : Ms. Bhawna Gera, Adv. Mr. Divyansh Shrivastava, Adv Mr. Amrish Kumar, AOR Mr. Mukul Rohatgi, Sr. Adv. Mr. Vipin Sanghi, Sr. Adv. Mr. Balbir Singh, Sr. Adv. Mr. Arvind Nayar, Sr. Adv. Mr. Simranjeet Singh, Adv. Mr. Gautam Talukdar, AOR Mr. Raushal Kumar, Adv. Ms. Apurbaa Dutta, Adv. Ms. Neha Gupta, Adv. Ms. Smita Jain, Adv. Mr. Karan Jain, Adv. Mr. Rishabh Pant, Adv. Mr. Nikhil Rohatgi, Adv. Mr. Naman Tandon, Adv. Mr. Rohit Gandhi, Adv. Mr. Akshay Joshi, Adv. Ms. Vanshaja Shukla, AOR
For Jharkhand : Mr. Kumar Anurag Singh, Adv. Honey Khanna, Adv. Ms. Pallavi Langar, AOR Mr. C.U. Singh, Sr. Adv. Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv. Ms. Bidya Mohanty, Adv. Katyayani Suhrud, Adv. Ms. Mrinmoi Chatterjee , AOR
For Madhya Pradesh: Ms. Mrinal Gopal Elker, AOR
For R-26 Mr. Saurabh Singh, Adv.
For Gujarat : Ms. Swati Ghildiyal, AOR
For R-20 : Ms. Devyani Bhatt, Adv. Ms. Neha Singh, Adv. Ms. Abhipsa Mohanty, Adv.
For U.T. of Ladakh : Ms. Indira Bhakar, Adv. Mr. Mukesh Kumar Verma, Adv. Mr. Kanu Agarwal, Adv. Mr. Varun Chugh, Adv. Mr. Vatsal Joshi, Adv. Mr. Rajesh Singh Chauhan, Adv. Mr. Anil Hooda, Adv. Mr. Vineet Singh, Adv. Mr. Piyush Beriwal, Adv. Mr. Mukesh Kumar Maroria, AOR
U.T.of Lakshyadweep : Mr. Rajesh Singh Chauhan, Adv. Mr. Mukesh Kumar Maroria, AOR
For State of U.P. : Ms. Sakshi Kakkar, Adv.
For State of Nagaland : Ms. Limayinla Jamir, Adv. Mr. Amit Kumar Singh, Adv. Ms. K. Enatoli Sema, AOR Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv.
For the Petitioner(s): Mr. P.S. Patwalia, Sr. Adv. Mr. Prabhas Bajaj, Adv. Mr. Priyanshu Tyagi, Adv. Mr. Amarjeet Singh, Adv. Mr. Rishav Rai, Adv. Ms. Deveshi Chand, Adv. Mr. Dipanshu Krishan, Adv. Mr. Amarjeet Singh, AOR
For the Respondent(s): Mr. K.M. Natraj, Ld. ASG Mr. Sharath Nambiar, Adv. Mr. Vinayak Sharma, Adv. Mr. Rajat Nair, Adv. Mr. Kanu Agrawal, Adv. Mr. Shashank Bajpai, Adv. Ms. Priya Mishra, Adv. Mr. Ishaan Sharma, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Harish Pandey, Adv. Mr. Shafik Ahmed, Adv. Mr. Ajay Sharma, Adv. Mr. Mukesh Verma, Adv. Ms. Priyanka, Adv. Mr. Sunny, Adv. Ms. Avni Singh, Adv. Mr. Jitin Chaturvedi, AOR
For R-9 : Ms. Bhawna Gera, Adv. Mr. Divyansh Shrivastava, Adv Mr. Amrish Kumar, AOR Mr. Mukul Rohatgi, Sr. Adv. Mr. Vipin Sanghi, Sr. Adv. Mr. Balbir Singh, Sr. Adv. Mr. Arvind Nayar, Sr. Adv. Mr. Simranjeet Singh, Adv. Mr. Gautam Talukdar, AOR Mr. Raushal Kumar, Adv. Ms. Apurbaa Dutta, Adv. Ms. Neha Gupta, Adv. Ms. Smita Jain, Adv. Mr. Karan Jain, Adv. Mr. Rishabh Pant, Adv. Mr. Nikhil Rohatgi, Adv. Mr. Naman Tandon, Adv. Mr. Rohit Gandhi, Adv. Mr. Akshay Joshi, Adv. Ms. Vanshaja Shukla, AOR
For Jharkhand : Mr. Kumar Anurag Singh, Adv. Honey Khanna, Adv. Ms. Pallavi Langar, AOR Mr. C.U. Singh, Sr. Adv. Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv. Ms. Bidya Mohanty, Adv. Katyayani Suhrud, Adv. Ms. Mrinmoi Chatterjee , AOR
For Madhya Pradesh: Ms. Mrinal Gopal Elker, AOR
For R-26 Mr. Saurabh Singh, Adv.
For Gujarat : Ms. Swati Ghildiyal, AOR
For R-20 : Ms. Devyani Bhatt, Adv. Ms. Neha Singh, Adv. Ms. Abhipsa Mohanty, Adv.
For U.T. of Ladakh : Ms. Indira Bhakar, Adv. Mr. Mukesh Kumar Verma, Adv. Mr. Kanu Agarwal, Adv. Mr. Varun Chugh, Adv. Mr. Vatsal Joshi, Adv. Mr. Rajesh Singh Chauhan, Adv. Mr. Anil Hooda, Adv. Mr. Vineet Singh, Adv. Mr. Piyush Beriwal, Adv. Mr. Mukesh Kumar Maroria, AOR
U.T.of Lakshyadweep : Mr. Rajesh Singh Chauhan, Adv. Mr. Mukesh Kumar Maroria, AOR
For State of U.P. : Ms. Sakshi Kakkar, Adv.
For State of Nagaland : Ms. Limayinla Jamir, Adv. Mr. Amit Kumar Singh, Adv. Ms. K. Enatoli Sema, AOR Ms. Chubalemla Chang, Adv. Mr. Prang Newmai, Adv.
Advertisers and endorsers are legally responsible for ensuring that their advertisements comply with established laws and guidelines, and a self-declaration process is necessary to uphold consumer rights and prevent misleading advertisements.
Headnote:
[INTERLOCUTORY APPLICATION] - [JUDICIAL NOTICE AND MISLEADING ADVERTISEMENTS] - [DMR ACT 1954, DC ACT 1940, C.P. ACT 1986, CTN ACT 1995, FSSA 2006] - [The court addressed the issue of misleading advertisements in the health sector, emphasizing the need for strict adherence to the Drug and Magic Remedies (Objectionable Advertisements) Act, 1954, the Drug and Cosmetics Act, 1940, and the Consumer Protection Act, 1986. The court highlighted the responsibilities of advertisers and endorsers, mandating a self-declaration process before advertisements are published, to ensure compliance with legal standards and protect consumer rights.]
Fact of the Case:
The case involves an interlocutory application concerning misleading advertisements related to health products, where the President of the Indian Medical Association made statements in an interview that were deemed offensive. The court was asked to take judicial notice of these statements and address the ongoing issue of deceptive advertisements in violation of previous court orders.
Finding of the Court:
The court found that there was a significant lack of accountability among advertisers and regulatory bodies regarding misleading advertisements. It emphasized the need for a robust mechanism to ensure compliance with existing laws and protect consumer rights.
Issues: The primary issues included the enforcement of the DMR Act, 1954, the DC Act, 1940, and the C.P. Act, 1986, in relation to misleading advertisements, the responsibilities of various ministries, and the adequacy of current regulatory frameworks.
Ratio Decidendi: The court held that existing laws and guidelines must be enforced vigorously to protect consumers from misleading advertisements. It established that advertisers and endorsers bear responsibility for the content they promote and mandated a self-declaration process to ensure compliance with advertising standards.
Final Decision: The court directed the implementation of a self-declaration requirement for advertisers before any advertisement is published, reinforcing the need for accountability and adherence to legal standards in advertising practices.
Act Referred
CABLE TELEVISION NETWORK RULES: R.7
CONSTITUTION OF INDIA: Art.141, Art.32
DRUGS AND COSMETICS RULES: R.170
CONSTITUTION OF INDIA: Art.141, Art.32
DRUGS AND COSMETICS RULES: R.170
Legal Category Hierarchy
- constitutional law
- administrative law
- consumer protection
- media law
Table of Contents
2. Submissions regarding the regulatory role of various ministries, the status of Rule 170 of the Drugs and Cosmetics Rules, and the efficacy of existing self-regulatory mechanisms. (Para 5 , 9 , 10 , 14 , 15 )
3. Administrative instructions cannot suspend enforceable law; existing regulatory mechanisms for misleading advertisements are inadequate; endorsers and agencies share responsibility for deceptive claims. (Para 12 , 16 , 17 , 18 , 20 , 21 )
4. The fundamental right to health includes the consumer's right to be informed of product quality, justifying judicial intervention to mandate pre-advertisement self-declarations. (Para 22 , 23 )
5. Mandated pre-advertisement self-declarations via dedicated portals for all media; directed withdrawal of administrative instructions suspending Rule 170; ordered affidavits from regulatory authorities. (Para 13 , 24 , 25 , 26 )
6. Can an administrative instruction suspend the operation of a statutory rule?
No, an administrative instruction issued via letter cannot put on hold a statutory rule so long as that rule remains enforceable in law. (Para 12 )
7. What is the legal responsibility of endorsers and advertising agencies regarding misleading advertisements?
Advertisers, advertising agencies, and endorsers—including public figures and influencers—are equally responsible for issuing false advertisements and must exercise due diligence to ensure endorsements are not deceptive. (Para 21 )
8. How does the right to health relate to consumer protection in advertising?
The fundamental right to health encompasses the right of a consumer to be made aware of the quality of products offered for sale by manufacturers, service providers, and advertisers. (Para 22 , 23 )
9. What mandatory mechanism did the court introduce to prevent misleading advertisements?
The court mandated that before any advertisement is printed, aired, or displayed, the advertiser or agency must upload a self-declaration conforming to the Advertising Code on designated government portals. (Para 23 , 24 )
ORDER :
Interlocutory Application No. 110011 of 2024
1. This application has been moved by the respondent No. 5 praying inter-alia that judicial notice be taken of the statements made by the President, Indian Medical Association1 [For short ‘IMA’]-Petitioner No. 1 of the offending statements made by him in his interview published in various publications on 29th April, 2024, on the eve of this matter being listed in this Court on 30th April, 2024.
2. It is pertinent to note that a reference was made by learned counsel for the respondents No. 5 to 7 to the aforesaid interview on the last date of hearing as well and a copy of the interview printed in the press was duly furnished to Mr. P.S. Patwalia, learned Senior counsel who had sought time to respond. Despite that, no response has been filed so far.
3. Issue notice.
4. Mr. P.S. Patwalia, learned Senior counsel states that his briefing counsel accepts notice on behalf of the President, IMA. He shall be impleaded as a co-respondent in the present proceedings. Amended Memo of parties shall be filed by the counsel for the petitioner no. 1-IMA before the next date of hearing. Reply be filed well before the next date of hearing, i.e. 14th May, 2024.
WRIT PETITION (CIVIL) NO. 645/2022:
1. It is submitted on behalf of the respondents no. 5 to 7/proposed contemnors that pursuant to the orders passed on the last date of hearing, i.e. 30th April, 2024, the relevant pages of each newspaper in original, where a public apology has been published by the respondents no. 5 to 7, tendering an unqualified apology for violating the orders of this Court as passed on 23rd April, 2024, by continuing to issue deceptive advertisements and for breaching the undertakings given to this Court, has been filed. It is submitted that the Registry has accepted one set of the said documents. The second set of documents, that are photocopies of the originals of the already filed newspapers, are proposed to be filed in the course of the day.
2. The photo copies shall be filed at the earliest. The Registry shall take the same on record.
3. Service has been effected on the National Medical Commission2 [For short ‘the NMC’] that is represented by a counsel. However, no steps have been taken by NMC to file an affidavit in the light of the observations made by this Court in Para 9 of the order passed on 23rd April, 2024. NMC shall file an affidavit before the next date of hearing, i.e. 14th May, 2024.
4. On the last date of hearing, keeping in mind the number of misleading advertisements that are being published/displayed with little/nil accountability on the part of the manufacturers, promoters and advertisers, it was deemed appropriate to implead the Ministry of Consumer Affairs, Ministry of Food and Public Distribution, Ministry of Information and Broadcasting and Ministry of Electronics and Information Technology as parties in the present proceedings to examine the steps taken by them to prevent abuse of the Drug and Magic Remedies (Objectionable Advertisements) Act, 19543 [In short DMR Act 1954] and the Rules, the Drug and Cosmetics Act, 19404 [In short DC Act 1940] and the Consumer Protection Act, 1986.5 [In short C.P. Act 1986] In light of the stand taken by Union of India that implementation of the DMR Act, 1954 lies in the hands of the State Governments/UT Licensing Authorities, all of them were also directed to be impleaded in the present proceedings.
5. Mr. K.M. Natraj, learned Additional Solicitor General who is already appearing for the Ministry of Ayush and Ministry of Health and Family Welfare, Union of India submits that besides an earlier affidavit filed by the Ministry of AYUSH, an additional affidavit has been filed. Ministry of Consumer Affairs and the Ministry of Information and Broadcasting have also filed separate affidavits. He submits that the Department of Food and Public Distribution (under the Ministry of Consumer Affairs) and the Ministry of Electronics and Information Technology do not have a ma
