Right To Health Includes Right To Be Made Aware Of Products Quality: SC

While not lagging behind in rising up to the occasion and taking the most right step at the right time, it is really most reassuring to note that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Indian Medical Association & Anr Vs Union of India & Ors in Writ Petition (Civil) No.645/2022 and cited in Neutral Citation No.: 2024 INSC 406 in the exercise of its civil original jurisdiction that was pronounced just recently on May 7, 2024 has minced just no words to hold in no uncertain terms that the fundamental right to health encompassed the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies. No denying. It must be noted that a Bench of Apex Court comprising of Hon’ble Ms Justice Hima Kohli and Hon’ble Mr Justice Ahsanuddin Amanullah made it clear that in the absence of any robust mechanism enacted in law to ensure that the obligations cast on the advertiser to adhere in letter and spirit to stipulations in the ‘Guidelines for Prevention of Misleading Advertisements and Endorsements of Misleading Advertisements, 2022’ that deals with prohibition of surrogate advertising, free claims advertisements, children. It also must be certainly noted here that the Apex Court finally decided to schedule this vital matter that stemmed from a petition that had been filed by the Indian Medical Association against Yoga Guru Baba Ramdev and Patanjali Ayurved for consideration on July 9, 2024.

WRIT PETITION (CIVIL) NO.645/2022:

At the very outset, this brief, brilliant, bold and balanced judgment authored by a Bench of Apex Court comprising of Hon’ble Ms Justice Hima Kohli and Hon’ble Mr Justice Ahsanuddin Amanullah sets the ball in motion by first and foremost putting forth in para 1 that, “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.”

Needless to say, the Bench directs in para 2 that, “The photo copies shall be filed at the earliest. The Registry shall take the same on record.”

As we see, the Bench discloses in para 3 that, “Service has been effected on the National Medical Commission (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.”

To put things in perspective, the Bench envisages in para 4 that, “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, 1954 (In short DMR Act, 1954) and the Rules, the Drug and Cosmetics Act, 1940 (In short DC Act, 1940) and the Consumer Protection Act, 1986 (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.”

Do note, the Bench notes in para 19 that, “Learned Additional Solicitor General informs the Court that Central Government has established a Consumer Protection Authority which is functional and its powers and functions as delineated in Section 18, are fairly broad based and all encompassing.”

It would be worthwhile to mention that the Bench specifies in para 20 that, “It is pertinent to note that the Ministry of Consumer Affairs has enclosed with its affidavit, Notification dated 09th June, 2022, setting out the Guidelines for Prevention of Misleading Advertisements and Endorsements of Misleading Advertisements, 202210 that deals with prohibition of surrogate advertising, free claims advertisements, children targeted advertisements, and advertisements that are prohibited by law. Guidelines, 2022 specifically define amongst others, the expression “bait advertisements”, “endorser” and “surrogate advertising”. A status report of the action taken by the Central Authority on false and misleading advertisements including food and health products finds mention at Annexure R4 and shows that from July, 2020 to April, 2024, the total notices issued by the Central Authority for misleading advertisements is 163. Out of the said 163 notices, 58 were closed and the remaining 105 are stated to be under process. Not much light has been thrown on the nature of action taken and the activities of the Authority which is empowered to take even suo moto action, whenever false/misleading advertisements are noticed. The Ministry of Consumer Affairs is directed to file an additional affidavit setting out the action taken by the Central Authority on noticing/being informed of false/misleading advertisements, particularly in the food and health sector.”

Be it noted, the Bench notes in para 21 that, “We are of the firm view that advertisers/advertising agencies and endorsers are equally responsible for issuing false and misleading advertisements. Such endorsements that are routinely made by public figures, influencers, celebrities etc. go a long way in promoting a product. It is imperative for them to act with a sense of responsibility when endorsing any product and take responsibility for the same, as reflected in Guideline No.8 of the Guidelines, 2022 that relates to advertisements that address/target or use children for various purposes and Guideline No.12 that lays down the duties of manufacturers, service providers, advertisers and advertising agencies to ensure that the trust of the consumer is not abused or exploited due to sheer lack of knowledge or inexperience. Guideline No.13 requires a due diligence to be undertaken for endorsement of advertisements and requires a person who endorses a product to have adequate information about, or experience with a specific good, product or service that is proposed to be endorsed and ensure that it must not be deceptive.”

In addition, the Bench hastens to add in para 22 propounding that, “All the aforesaid provisions including statutory provisions/rules, regulations and guidelines have a salutary object, which is to serve the consumers and ensure that they are made aware of the kind of product that is being offered for purchase, particularly in the food and health sector. We are of the opinion that the aforesaid Ministries ought to set up and promote a mechanism which encourages the consumer to lodge a complaint and for the said complaint to be taken to its logical conclusion, instead of simply being marked/forwarded to the concerned State authority, thus leaving the consumer clueless as to the final outcome of the complaint made.”

Most significantly and as a corollary, the Bench then mandates in para 23 expounding that, “In view of the above and in the absence of any robust mechanism enacted in law to ensure that the obligations cast on the advertiser to adhere to stipulations in the Guidelines, 2022 in letter and spirit, it is deemed appropriate to invoke the powers vested in this Court under Article 32 of the Constitution of India for the enforcement of the fundamental right to health that encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies. To fill up this vacuum, it is directed that henceforth, before an advertisement is printed/aired/displayed, a Self declaration shall be submitted by the advertiser/advertising agency on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994 which is as follows :

“7. Advertising Code. – (1) Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers.

(2) No advertisement shall be permitted which-

(i) derides any race, caste, colour, creed and nationality;

(ii) is against any provision of the Constitution of India;

(iii) tends to incite people to crime, cause disorder or violence, or breach of law or glorifies violence or obscenity in any way;

(iv) presents criminality as desirable;

(v) exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary;

(vi) in its depiction of women violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service, is tasteful and aesthetic, and is within the well established norms of good taste and decency;

(vii) exploits social evils like dowry, child marriage.

(viii) promotes directly or indirectly production, sale or consumption of-

(A) cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants;

(5) No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or supernatural property or quality, which is difficult of being proved.””

It is worth noting that the Bench directs in para 24 that, “The Self-declaration shall be uploaded by the advertiser/advertising agency on the Broadcast Sewa Portal run under the aegis of the Ministry of Information and Broadcasting. As for the advertisements in the Press/Print Media/Internet, the Ministry is directed to create a dedicated portal within four weeks from today. Immediately on the portal being activated, the advertisers shall upload a Self-declaration before any advertisement is issued in the Press/Print Media/Internet. Proof of uploading the Self-declaration shall be made available by the advertisers to the concerned broadcaster/printer/publisher/T.V. Channel/electronic media, as the case may be, for the records. No advertisements shall be permitted to be run on the relevant channels and/or in the print media/internet without uploading the self-declaration as directed above. The above directions shall be treated as the law declared by this Court under Article 141 of the Constitution of India.”

What’s more, the Bench directs in para 25 that, “Noticing the provisions of the Food, Safety and Standards Act, 200611, it is deemed appropriate to direct the Ministry of Health and Family Welfare to file an affidavit furnishing the relevant data with regard to the complaints received by the Food, Safety and Standard Authority of India12 and the action taken on such complaints relating to penalty for selling food not of the nature or substance or quality demanded (Section 50), penalty for sub-standard food (Section 51), penalty for misbranded food (Section 52), penalty for misleading advertisement (Section 53) and penalty for food containing extraneous matter (Section 54).”

For clarity, the Bench clarifies in para 26 that, “We may note that FSSAI is authorized to take action on its own in the event of any such misleading advertisements coming to its notice, without waiting for any complaint to be received. Therefore, the affidavit proposed to be filed as directed above, shall indicate the nature of action taken by FSSAI on its own, besides on complaints received under the FSSA, 2006 from the year 2018 onwards and the action proposed to be taken by it to deal with misleading advertisements.”

Finally, the Bench concludes by directing in para 27 that, “List on 09th July, 2024, at the top of the Board.”

In summation, we thus see that the Apex Court has made it indubitably clear that the right to health also includes the right to be made aware of products quality. This needs to be definitely strictly implemented also and all the courts must without fail ensure that the same is done promptly! No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.