It is indeed commendable the Supreme Court has decided to take Patanjali by the scruff of its neck. Baba Ramdev and Acharya Balakrishna would not have been so brazen had it not been for the tacit support of the state machinery. Having opened a can of worms, the Supreme Court now has also rightly expanded the scope of the case to other unethical FMCG advertising.
The Patanjali case is a frightening example of how money is to be made by peddling hocus pocus as remedies, and then using people’s fears against modern medicine to promote products that have doubtful efficacy.
As far back as 2019, the company splashed advertising for eyedrops which it claimed was “helpful in treating glaucoma or cataract, double vision, color vision, retinitis pigmentosa and night blindness”. Though in violation of the Drugs and Magic Remedies (Objectional Advertisements) Act (DMRA) 1954, no action was taken.
Between February and October 2022, the Uttarakhand State Licensing Authority (SLA) and Drug Controller of Indian were alerted to several Patanjali campaigns for drugs that claimed to cure diabetes, and bring down cholesterol levels. Most dangerous was the one forits drug ‘Coronil’ launched in February 2021 that claimed to arrest the covid-19 virus. How can any regulator take action, if the then Union Health Minister Harsh Vardhan flagged off the launch!
The court battle
The second leg of Baba Ramdev’s ad campaign was against allopathic medicines. In a video that went viral,he said modern medicines hadkilled off lakhs of patients. Finally, the Indian Medical Association (IMA)filed a petition challenging Baba Ramdev and notice was issued in August 2022 by the Supreme Court.
So strong was Patanjali’s clout that the Uttarakhand State Licensing Authority, under who the company’s Haridwar production facilities fall, withdrew its ban on some of the drugs claiming it was an ‘error’! The Ayush ministry too did a U-turn. It stated that no action could be taken as Rule 170 of the Drugs and Magic Remedies Act, which prohibits advertisements of Ayurvedic, Siddha or Unani drugs without the licensing authorities’ approval, was awaiting a final decision of the court. This was a false claim as the operation of Rule 170 had not been stayed.
Patanjali, in violation of its undertaking, continued to issue the same offensive advertisements as late as January this year. It is at that point the Supreme Court on 27 February, this year issued a notice of contempt against Patanjali, threatened to fine the company Rs one crore and forced it to issue advertisements apologizing for violating its undertaking not to advertise these drugs.
To the credit of the Supreme Court bench of Justices Hima Kohli and A. Amanullah, it has decided to broaden the scope of its examination to other FMCG and health care companies. “Now we are looking at everything… we are looking at children, babies, women, and no one can be taken for a ride, and the Union government must wake up to this,” the apex court said.
It’s about time, too. Self-regulation by industry bodies such as the Advertising Standards Council of India (ASCI) have miserably failed. It was only years of controversy and litigation before Hindustan Unilever (HUL), producers of the brand ‘Fair and Lovely’, dropped the word ‘fair’ and replaced it with ‘Glow and Lovely’ in June 2020.
Besides the dubious claim the ‘beauty’ creamsmake the user ‘fair’, the advertising promotes racist stereotypes that ‘fair’ is beautiful, while dark skin tones are ‘ugly’. What should have been disallowed by executive standards, had to be implemented through court intervention and a social media campaign.
The dark zone
There are hundreds of other advertisements that continue to make false health claims. From ‘Mountain Dew’ creating Supermen who dive off mountains, to ‘energy’ drinks such as Horlicks and Boost, the poor consumer is constantly under pressure to embrace expensive and dubious food and beverage supplements rather than rely on good, wholesome home food.
Then, beyond these celebrity products, there is a dark zone of clandestine advertising by a set of jiggery-pokery products that are advertised in regional and national newspapers. Theyare little better than con-jobs, and claim to banish impotency, grow scalp hair overnight, and keep sexual virility going for nights on end.
While our attention is on big brands like a Patanjali or Horlicks, the brand reach of some of these is in millions, and often larger than what our English-speaking middle-class identifies with. Sample some of the common ones: The ‘Hempushpa’ drug claims it keeps women ‘active’ for the whole month, while the ‘Japani capsule’, an old con-brand, claims it gives the user a “feeling of energy and elation”. Yet again another brand ‘Zulf Raj’ says it stops hair loss, and prevents it from turning grey.
The ancient system of medicine in Ayurveda, Yunani and Siddha practice continues to contribute in a big way to our health system. However, quackery – as is present in allopathic medical practice – is a bane that has to be eliminated. The Ministry of Ayush was thus set up in November 2014 as a regulator of these ancient systems of medicine. Unfortunately, as we have seen, it has failed.
Ordinarily, media platforms should stop unethical advertising campaigns at the booking stage. However, given the delicate financials of media organisations, they have been turning a Nelson’s eye to ad content. Here is where the ministry of Ayush, steps in. The teeth provided by Rule 170 of the DMR Act are strong enough ensure these ads don’t appear.
Banning the products is a more complex process. But if the regulatory system ensures misleading and harmful advertising does not see the light of day, more than half the battle is won. There is no doubt the Patanjali case, when it reopens on 30 April or thereafter, will be keenly watched.
