‘Fair’ & ‘Lovely’ Impact – Proposed changes to Drugs and Magic Remedies Act

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In recent times India has seen social movements aimed at having a more progressive society which is diverse and sensitive towards inclusivity. ‘Black Lives Matter’ movement, which would complete seven years in July, recently gained momentum in United States of America, and became the global revolution against discrimination based on skin colour. In February 2020, the Ministry of Health and Family Welfare, probably respecting the collective consciousness and will of the nation,  put forth a proposal before the Parliament (‘Bill’) to amend the old Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 (‘DMRA’). The main intent behind this Bill seems to be to curb promotion or advertisement of the so-called ‘quintessential image of a human’.  Even before the enactment of the proposed Bill, some of the FMCG giants in India seemed to have embraced the proposed change – one of the leading FMCGs has renamed ‘Fair & Lovely’ products as ‘Glow & Lovely’.

DRMA was enacted in the year 1954 with the object to control/prohibit the advertisement of drugs and remedies with claim to possess magic qualities in certain cases. ‘Drug’, ‘Magic Remedies’, and ‘Advertisement’ are key terms defined under DMRA. Term ‘drug’ is defined to include any medicine, substance or device, article affecting organic structure of humans or animals, or any component of it. ‘Magic Remedy’ is defined to include talisman, mantra, kavacha, and any other charm which is alleged to possess miraculous powers of diagnosing, curing, prevention, etc. of certain diseases. ‘Advertisement’ under the DMRA can be in any form, such as a notice, circular, wrapper, label, announcement (oral, smoke or light) or any other document.

There is a general prohibition under the DMRA for misleading and false advertisements. Additionally, advertisements of drugs or magic remedies, which suggest procurement of miscarriage, prevention of conception, maintenance or improvement of sexual pleasure, correction of menstrual disorder or diagnosis, cure, mitigation, treatment or prevention of any disease/disorder mentioned in the Schedule of DMRA or the Rules made thereunder, are prohibited under the Act. Presently, the Schedule of DMRA and the Rules contain a list of 56 diseases and disorders/conditions in total.

DMRA is a penal statute and provides for imposition of penalty and/or prosecution for contravention of its provisions. Offences under DMRA are cognizable and triable by Magistrate (First Class). First offence can lead to an imprisonment of 6 months and/or fine, while every subsequent offence is punishable with increased term of imprisonment of 1 year and/or fine. In case of an offence committed by a company, the penalty/punishment is fastened on the company as well as every person who, at time of the offence, was in charge and responsible to the company for the conduct of the company. As person accused can claim refuge under the exception being absence of knowledge, or exercise of due diligence.

One of the issues that arises for consideration whether the advertisements of birth control pills, contraceptives, and condoms on television is prohibited under the provisions of DMRA. The answer to this issue lies in the power of Central Government under DMRA to exempt the application of DMRA if it deems that publication of a prohibited advertisement is required in public interest. In exercise of this power, the Central Government in the year 1961 issued a notification giving exemption to advertisement of government-approved contraceptives. Thus, condoms being male contraceptives, would be covered under this notification, if government approved. Subsequently, in 1992, the Central Government vide notification in public interest also exempted advertisement of chemical contraceptives of a certain composition for oral use.

However, in 2017, this exemption w.r.t. condom advertisements were regulated, to the extent, it related to advertisement on television channels, by a notification of the Ministry of Information & Broadcasting. Pursuant to this notification, no indecent/inappropriate condom advertisement could be telecasted between 6:00 a.m. to 10:00 p.m. This notification was given under the Cable Television Network (Regulation) Rules, 1994, to avoid exposure of such material to children as condom advertisements (in the form in which they were displayed) were considered indecent for children. However, it was later clarified by the government that the curb applies only to content that is ‘sexually explicit’ in nature and does not apply to an advertisement which does not sexually objectify women and are aimed at informing citizens regarding devices/products/medical interventions to ensure safe intercourse.

Thus, when examined closely, it becomes clear that it is not just DMRA which operates in this field. The current regulatory regime has qualitative restrictions provided under the provisions of the Advertising Code contained in the Cable Television Network Act, 1995 and the Advertising Standards Council of India’s (ASCI) self-regulatory code. Further, there are provisions in the Indian Penal Code, 1860 and the Information Technology Act, 2000 which prescribe penal consequences for publication transmission of material containing sexually explicit content.

The Bill proposes to further tightens the screws by providing for a more expansive definition of the term ‘advertisement’ by making it compatible with the changing times and technology. As per the new definition advertisement of drugs for fairness, improvement of height, increase in brain capacity, improvement of vision, improvement of strength of natural teeth, improvement in size and shape of sexual organs, and in sexual performance, etc. would be prohibited. Accordingly, advertising fairness creams, health drinks for increasing height or vision or memory, would come under the scanner.  Further, the Bill also provides for addition of 22 disease/disorder to the existing 56 diseases/disorder already mentioned in the existing Schedule of DMRA. Still further, the Bill also provides for higher penalty and longer imprisonment – For the first conviction, it proposes an increased imprisonment of up to 2 years and increased fine of up to 10 lacs and for the subsequent convictions, it proposes increased imprisonment up to 5 years and increased fine up to 50 lacs. The proposed amendments to DMRA show an intent of legislature to clamp down on the advertising that is not ‘fair’, and it is ‘lovely’ to see that these proposed changes have already garnered some support from industry.

Authored by: – Ms. Jayashree Parihar, Senior Associate, PSL Advocates and Solicitors

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