Misleading ads can now attract Rs 50 lakh fine and five years jail time

The Ministry of Health and Family Welfare is aiming to clamp down on misleading advertisements on topics like skin fairness, diabetes, increase in height, obesity, etc in a big way. It has suggested amendments to the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. One of the stringent clauses is an increase in the fine imposed on misleading advertisers to Rs 50 lakh and a jail term of five years.

On February 3, 2020, the ministry made public a draft Bill titled 'Drugs and Magic Remedies (Objectionable Advertisements) (Amendment) Act, 2020' that covered the proposed amendments. It also invited the public and stakeholders to come forward with their suggestions and objections towards the said draft within 45 days from the date of its issue.

The reason behind these amendments was the rising number of complaints against the present Act, concerning its implementation and effectiveness and to stay in touch with changing times and technology.

A major proposed change in the draft Bill is the expanded definition of the word 'advertisement' that shall now cover the electronic media, internet, and websites. Also, the ministry has increased the number of diseases, disorders, and conditions on which advertisements are prohibited - from 54 to 78.

The draft Bill also suggests an increase in the punishment doled out to offenders. For first time offenders, it has proposed two years imprisonment and a fine of Rs 10 lakh, up from the present six months and an unspecified fine amount. And for those committing the offence for the second time, five years imprisonment and a fine of Rs 50 lakh has been proposed, up from the existing one year imprisonment and fine of Rs 10 lakh.

We spoke to Shweta Purandare, the Secretary-General of The Advertising Standards Council of India (ASCI) to better understand this draft Bill. ASCI is the self-regulatory body of the advertising industry in the country.

While considering how the healthcare category has always faced the most scrutiny concerning misleading aids, she says, "Healthcare products and services is one of the top sectors with a high number of misleading ads but there are others too, like the education sector. The notification about the draft covers drugs or medicines only and doesn't cover cosmetics. Earlier, some of the subjects mentioned in the list were covered under Schedule J of the Drugs and Cosmetics Act, 1940 which has now been brought under the Drugs and Magic Remedies (Objectionable Advertisements) (Amendment) Act, 2020."

About the proposed changes, Purandare says, "It is a welcome move to expand the definition of the word advertisement because earlier, the definition was very narrow. Now, they've broadened the scope of what one means by advertisement. Keeping in mind the growth of digital media, they've also included websites of companies as well."

Speaking about how increased punishments will act as a deterrent, she adds, "The change will help in a big way. In 2017, ASCI had entered into an MoU with the Ministry of Ayush and was suo moto monitoring the print and TV media. We looked into almost 20 per cent of the ads. We looked into almost 2,500 ads, and more than 500 ads were found violating the Act. A high number of ads were misleading in nature. Advertisers at that time could perhaps get away by paying a small fine. The implementation of the regulation wasn't very effective. However, with the new steep fines and jail terms, I think the advertisers will have to be careful."

Purandare also told us about the time it will take for advertisers to stop such practices. She says, "Over the past three years, we've seen a dramatic decrease in the violations of the Drugs and Magic Remedies Act because of increased awareness of the action taken by the Ministry of Ayush either at the Centre or the state level. With this draft that is open to suggestions, I am sure it is going to be a much-needed change. We hope to see a cleaner healthcare sector that is free of misleading advertisements."

"More importantly, it will protect consumers because many advertisements promise to cure diabetes, cancer or paralysis and vulnerable and gullible consumers fall victim to it. We have to look at what kind of medicines are being pushed out and whether they are authentic drugs or not. With this draft, consumers are going to benefit in a big way."

This is not the first time the government has decided to clamp down on misleading ads and protect consumers. In 2019, the Ministry of Information and Broadcasting (MIB) directed TV broadcasters to carry the ASCI scroll for any grievances against objectionable advertisements.

Also in 2019, the government decided to set up a committee through the Food Safety and Standards Authority of India (FSSAI) that would scrutinise product-related claims made in advertisements across digital, TV and print.