With the COVID-19 pandemic showing no signs of retreat in nearly 180 countries across the globe, the race for discovering the vaccine for it is ongoing at a hysterical pace. Scientists and Medical Institutions around the world are working day and night to find a cure. While major pharmaceutical companies around the world have locked horns in this race which no one seems to be winning, the Patanjali Ayurveda Limited’s Divya Pharmacy jointly owned by Acharya Balakrishna and Yoga Guru Baba Ramdev caused a major stir in the world on June 23rd, 2020 when through a press-conference they announced that they had made a medicinal kit “Coronil” that was capable of curing COVID-19 and was made completely out of medicinal herbs and natural products as per Ayurvedic branch of medicine. This was sensational news and caused major headlines setting aside the ongoing Indo-China conflict in Ladakh. The AYUSH Ministry instantly released a statement that Patanjali Limited did not acquire any kind of certification or license for a COVID-19 curing medicine. It issued a notice prohibiting Patanjali Limited from advertising or promoting the product at any platform and advised it against being involved spreading of any kind of rumors regarding this.
Soon after, Baba Ramdev quickly changed his stance and said that he had acquired a license for Coronil as an “Immunity Booster” and said that he had never claimed that Coronil was a Coronavirus cure. However, in actuality, in the conference for the launch, his stance was completely different when at the press conference he said and we quote “3 din me 69% mareej thik or 7 din me 100% mareej thik.” [“69% patients cured in 3 days and 100% patients cured in 7 days.”] While both sides in this have their version of the story, one thing that is clear in this incident is that the much idolized and celebrated Baba Ramdev and his company is on the wrong side of law about which we will further examine in detail.
Baba Ramdev and his Patanjali Ayurveda Ltd. can land in trouble due to a 1954 law which is Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. The primary purpose of the act is to prohibit advertisements for drugs and “remedies alleged to possess magic qualities”. The act seeks to prevent the people from being misled into self-medication and tries to stop medical practitioners and pharmaceutical manufacturers from making people believe that a certain disease that the people know no cure for, has been made curable by them. While the Patanjali Ayurveda claims it did not promise anything about Coronil curing COVID-19, they were advertising for it without acquiring a proper license or submitting proper testing and research papers. Section 4 of the act bars “Misleading advertisements” which it says gives false information regarding the true purpose or character of the drug. In this case, according to the makers, it is an immunity booster while they apparently advertised it as a cure of COVID-19 which can cause serious misconceptions amongst users. Section 7 of the Act says anybody who violates the law shall be punished with a maximum of 6-month imprisonment along with fine. Till now five persons including Baba Ramdev and Acharya Balakrishna are booked under Section 420 (cheating) of Indian Penal Code which says:
Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The company did try to misinform the masses about the medicine’s usage and if found guilty of this it can tarnish all the goodwill and reputation of the much trusted Corporation.
Other than the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, the manufacturers can also face charges under the Consumer Protection Act, 2019(“Act”). Under, this Act, Patanjali’s Divya Pharmacy can be held liable under sections issuing a misleading advertisement that falls under the definition of 2(28) and can also be prohibited from the advertisement of their product and can be issued a penalty up to Rs. 10 lakh under section 21(1) and 21(2) of the Act, by the Central Consumer Protection Authority. Further, under Section 89 of the Act, any manufacturer who causes a false or misleading advertisement to be made which is prejudicial to the interest of consumers shall be imprisoned for up to two years and fined an amount up to Rs. 10 lakhs; and for every subsequent offense, the manufacturer is punished with imprisonment for a term which may extend to 5 years and with fine which may extend to Rs. 50 lakhs.
Moreover, going by the decision of the Supreme Court in the case of Hamdard Dawakhana v. Union of India, if it can be proven that the restriction on advertisement is made under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, in the public interest, then the restriction can be held to be reasonable and not in contravention of freedom of speech and expression and freedom of trade and commerce.
The action of the Company and the pharmacy in question was undoubtedly maliciously motivated and not in good faith. The severity of the maliciousness is further increased if the panic and chaos regarding COVID-19 are brought into the picture. The disease as of yet has no certified or licensed vaccine or cure and people throughout the world are in a state of frenzy. In such a scenario, if a claim as to a new medicine curing COVID-19 is made, it is very foreseeable that the people would buy it in large numbers, especially if it is also claimed that the medicine has been certified and licensed by the Ministry of AYUSH. In the present case, Patanjali has tried to cash the times and the popular fan base it has in India, especially after being one of the leading FMCG companies in India for the past few years. Propagation of false or misleading facts about the medicine violates the right to informed choice of a consumer and knowingly lures consumers into the violation of their right against unfair trade practices and right against misleading advertisements.
As per the Supreme Court in the case of Hamdard Dawakhana v. Union of India, an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. The advertisement assumes the attributes and elements of the activity which it seeks to aid by bringing it to the notice of the public. Here the promotion of the medicine and the type of publicity that was sought to be achieved for the medicine as a cure for COVID-19 shows that the company very well knew that it was luring people into believing that the medicine Coronil can cure COVID-19 despite having obtained proper certification and license for it by defining it as an immunity booster. Therefore, the company can be held liable for issuing false information and misleading advertisements in public.
Thus the joint owners of the company can be rightfully charged under sections 4,5 and 7 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and section 420 of the Indian Penal Code which is adequate in our opinion as the magnitude and implications of such irresponsible action in a country as vast as India can be far-fetched from what is imaginable through the naked eye.
Mansi Tiwari is a first-year B.A. LL.B. (Hons.) student at the National Law University, Jodhpur, India.
Deeptam Bhadauria is a first-year B.A. LL.B. (Hons.) student at the National Law University, Jodhpur, India.
Suggested citation: Mansi Tiwari and Deeptam Bhadauria, The Science of Ayurveda and the Advertising of False Remedies in a Pandemic, JURIST – Professional Commentary, July 17, 2020, https://www.jurist.org/commentary/2020/07/tiwari-bhadauria-coronil-advertising/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
