Court Objects to Government’s Promotion of Unlicensed Ayurvedic Medicines

Centre Had Told States Not to Take Action Against Ads For Such Products

Newsreel Asia Insight #215
May 8, 2024

The Central government has told the Supreme Court it will promptly withdraw a letter from the Ministry of Ayush that directed state and union territory licensing authorities not to take any action against advertisements for Ayurvedic and Ayush products under Rule 170 of the Drugs and Cosmetic Rules, 1945, which prohibits advertisements of Ayurvedic, Siddha or Unani drugs without licensing approval.

Representing the Ministry of Ayush, Additional Solicitor General (ASG) K.M. Nataraj promised to withdraw the August 2023 letter on May 7 after the Supreme Court bench of Justices Hima Kohli and Ahsanuddin Amanullah expressed strong discontent with the Ministry’s stance, as reported by Live Law.

The court perceived the Ministry’s letter as an attempt to circumvent the existing law and demanded clarity on why the government decided to omit Rule 170.

The letter, which was initially issued based on a recommendation by the Ayurvedic, Siddha and Unani Drugs Technical Advisory Board (ASUDTAB), a statutory advisory body, had effectively curtailed enforcement of Rule 170. It sought to bypass the State Licensing Authority, which is a regulatory body responsible for issuing licenses and overseeing compliance with legal standards in various sectors, including healthcare and pharmaceuticals.

The ASG sought to defend the Ministry’s position by showing an affidavit filed by the Joint Secretary of the Ayush Ministry, which indicated that at least 8-9 writ petitions challenging Rule 170 had been filed across various high courts. However, the bench noted that none of the courts had delivered judgments in these cases yet and that no final decision had been reached regarding the omission of Rule 170.

Justice Kohli articulated her disapproval, “You cannot say that the law is there, you do not implement it.”

The contempt case against Patanjali, a prominent FMCG company that produces Ayurvedic products, was central to the day’s proceedings. Patanjali had faced allegations of publishing misleading advertisements, prompting the Supreme Court to scrutinise the government’s decision to effectively suspend Rule 170.

The Ministry’s letter provided companies like Patanjali with a temporary reprieve from regulatory scrutiny over advertising claims. This action could be perceived as promoting Ayurvedic drugs by allowing companies to advertise freely without fear of regulatory action under Rule 170. The letter effectively created a legal vacuum where Ayurvedic companies could make unsubstantiated health claims without consequences.

Justice Amanullah described the letter as “glaring” in its illegality. He noted, “How can you say that do not implement a law till it is a good law? And that too the Government will say that! It is glaring. How do we shut our eyes that till date it was neither withdrawn not taken to its logical conclusion...Is it permissible under the constitution as it holds today?”

The Supreme Court’s strong disapproval of the Ministry’s actions reinforces the perception that the government acted beyond its legal mandate.

In April, the Supreme Court had rebuked Patanjali Ayurved for continuing to air misleading advertisements that disparaged modern medicine, despite a court order to stop, and questioned the Central government’s lack of action against such claims. Patanjali claimed to have created products that could completely cure COVID-19.