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Easier To Fool Than To Convince On Being Fooled: A Legislative Analysis On The Drugs And Magic Remedies Objectionable Advertisements Act, 1954

A unique characteristic of the belief that Indian people have is that it is firm and unwavering. This quality of belief can be traced to its roots which shows how Indians developed their traditions and the system of beliefs on these traditions, upholding them and passing them down from one generation and its succeeding generations.

But as time went on, people started to blindly believe in traditions and then in anything and everything that is described by custom and guarantees something fruitful. This facet of belief was disrupted when it was targeted and abused for monetary gain.

People who could read the minds of these blind believers began to mint profits by supplying them products that claim to produce immediate and instantaneous results.

This 'instant remedy consumerism' evolved into a con business in which consumers spent money in the hope of enjoying its benefits only to be duped by the illusion of tricks that these con artists present. The use of advertisements, being the most effective form of communication, is a very useful addition to this deceit. The more appealing and credible the advertisement, the more consumers it can attract and increase in product sales.

Legal recognition of this deception led to the development of a legislation that sought to regulate such advertising. This legislation is known as The Drugs and Magic Remedies (Objectionable Advertisements) Act[1] enacted in 1954.

Analysis of the Legislation:
  1. The object of the legislation is to regulate the marketing of medications and other products that purport to have magical properties.
  2. To further understand the legislation, the three keywords, namely drugs, magic remedies and advertisements must be understood in light of the definitions provided under section 2 of the legislation.
    • The terms Drugs and Magic Remedies are construed in light of their intended use, which being for the 'diagnosis, cure, mitigation, treatment or prevention of disease, disorder or condition or to affect or influence in any way the structure or any organic function of the body of human beings or animals.'
    • The term Advertisement is defined in terms of the media through which it is distributed, which includes 'any notice, circular, label, wrapper or other document, and any announcement made orally or by any means of producing or transmitting light, sound or smoke.'
    • The medium for usage is also provided for in the definitions; drugs may take the shape of any medication, substance, or article, and magic remedies may take the form of a talisman, mantra, kavacha, or any other charm with the unique quality of possessing extraordinary abilities.
  3. As previously noted, the legislation prohibits the advertisement of drugs and magic remedies and also any activity of participation in its publication.
    • In the case of drugs, such advertisements that are suggestive and lead to specific purposes, such as 'procuring miscarriage, preventing conception, resolving menstrual disorders in women, or maintaining or enhancing sexual capacity for sexual pleasure and for the purposes specified in its definition', are prohibited under section 3. Misleading advertisements, such as conceiving the true character of the drug through direct or indirect deceptive impressions, or making any false claim, are also prohibited under section 4.
      • The provision does, however, include a few exceptions, which state that the following situations are exempt from the prohibitions;
        • In the case of any disease, disorder, or condition that necessitates prompt treatment in consultation with a certified medical practitioner or for which there are typically no recognized solutions.
        • After discussion with the Drugs Technical Advisory Board established under the Drugs and Cosmetics Act, 1940, and/or if the Central Government deems it necessary, with such other people having special expertise or practical experience in Ayurvedic or Unani medical services as determined by the government.
    • The diseases and conditions for which a drug may not represent to prevent or treat, or make such associated claims are listed in the Schedule of the legislation.
    • In terms of magic remedies, advertisements depicting people engaged in the profession of dispensing magical cures that claim to be potent for the previously proscribed purposes are prohibited under section 5.
  4. If any person is accused of and found guilty of such publication, they shall be punished according to the following penalty under section 7, which is segregated on the basis of convictions.
    • For the first conviction, the penalty is imprisonment which may extend to 6 months, or with a fine or a combination of both.
    • For the subsequent conviction, the penalty is imprisonment which may extend to 1 year, or with a fine or a combination of both.
  5. One aspect to be noted is that that these kinds of violations are not just committed by individuals but also by entities like companies.
    • In this regard, the legislation also addresses the commission of offences by companies under section 9. According to the provision, both the company itself and those individuals who were in charge of and accountable for the company's operations at the time the offence are liable. If it is proven that the offence was committed with the knowledge or complicity or was the result of their neglect (whether they be a director, manager, secretary, or other officer of the company), they will be considered guilty of the offence and subject to prosecution and penalized accordingly.
  6. The jurisdiction prescribed for conducting the proceedings of the offences, i.e., trial of the offence under section 10, should not be inferior to that of a Presidency Magistrate or a Magistrate of the First Class.
  7. There are certain forms of advertisements stated under section 14, to which the legislation does not apply. These exceptions include;
    • a qualified medical professional's signboard or notice placed on his property stating that treatment for any disease, disorder or condition is provided there
    • any book or written work that approaches any of the topics on prohibited advertising specified in the legislation from an undeceived scientific or social perspective
    • any drug-related advertisement printed or published by the government, or by any person who has received a prior government sanction that was issued before the legislation took effect
  8. Aside from the listed exceptions, under section 15, the Central Government may agree to permit the advertisement of specified drugs or specified class of advertisement related to drugs if it believes it is in the public's interest.

Proposed Amendment:
In a public notice issued by the Drugs Regulation Section of the Department of Health and Family Welfare, a draft Bill[2] to amend the 1954 Act was proposed.

The call for amendment was motivated by concerns about the legislation's implementation and efficacy.

The Drugs and Magic Remedies (Objectionable Advertisements) (Amendment) Bill, 2020, seeks to modify the following provisions of legislation;
  1. The term advertisement is expanded and defined under Section 2 as including 'audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice, banner, poster or such other documents.'
  2. The penalty has been enhanced under Section 7, which states that,
    • For the first offence, the penalty is imprisonment which may extend to 2 years and fine up to 10 lakh rupees.
    • For the subsequent offence, the penalty with imprisonment which may extend to 5 years and fine up to 50 lakh rupees.
  3. The exception clause requiring deliberation with authorities under section 3 is modified by the substitution of the following wording; 'after consultation with Ayurvedic, Siddha and Unani Drugs Technical Advisory Board constituted under section 33C of the Drugs and Cosmetics Act, 1940 in respect of Ayurvedic, Siddha and Unani system of medicines.'
  4. Other amendments proposed to be made were to sections 8 and 9A of the legislation.
  5. Furthermore, the Schedule of the legislation will be amended to include an expansion in its list of diseases and ailments that are of the nature of social concerns such as 'fairness of skin, change of foetal sex by drugs, premature greying of hair' and of psychological concerns such as 'epileptic fits and psychiatric disorders, mental retardation, sub-normalities and growth, insanity' among biological conditions and ailments.
The draft Bill is being developed in the background based on recommendations, remarks, and concerns from the general public and stakeholders.

Conclusion and Moving Forward:
It is tragic to witness people deceive the public into thinking that a mere drug or manufactured solution will instantaneously fix their enduring difficulties. This belief facilitates to deceive people easily which is exactly what the opportunist tricksters make use of.

Though legislations such as the ones outlined are enacted and updated to keep up with evolving criminal tactics, the effectiveness of laws is determined by its implementation.

Given this backdrop, it is important to recognise that some effective implementations of the legislation in discussion have taken place.

An earlier incident occurred in Thiruvananthapuram, where an ayurvedic doctor's registration was suspended after it was discovered that he had been in violation of the legislation by promoting the use of oral drops (thulli marannu[3]) to treat conditions like diabetes, cancer, asthma, ulcers, and obesity.

Some recent cases include the removal of misleading advertisements presented by the widely recognised brand Patanjali[4] and another well-known brand, Pankajakasthuri Orthoherb[5], which came under scrutiny for repeated infractions in promoting its medicinal oil and tablet products.

The renowned author Mark Twain once said, "It is easier to fool people than to convince them that they have been fooled", and this sentiment has served as an inspiration for the viewpoint that conceputalised this legislative analysis.

  3. Ayurvedic doctor suspended for advertising about remedies for ailments in Thiruvananthapuram, Ayurveda doctor suspended (

Award Winning Article Is Written By: Ms.Ravani Ukti Nayudu
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