Regulating Misleading Health Ads: Legal Frameworks

Regulating Misleading Health Ads

Syllabus

GS 2: Health

Why in the News?

Recently, concerns were raised about Big Tech platforms violating India’s Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (DMR Act), by publishing objectionable advertisements for ayurvedic and homeopathic products, prompting calls for urgent regulatory reforms.

Introduction

• The increasing dominance of Big Tech in India’s advertising landscape has raised serious public health concerns.
• Despite strict legal restrictions under the DMR Act, objectionable advertisements for unproven medical treatments continue to flourish.
• This unchecked trend undermines Indian law, endangers health, and challenges national sovereignty.

Historical Background: India’s Fight Against False Medical Claims

• The issue of objectionable advertisements for drugs dates back nearly a century.
• In 1927, Sir Haroon Jaffer raised concerns in the Council of State about the growing “craze for medicinal drugs”.
• However, it took 27 long years before India enacted the DMR Act to control such deceptive advertising.
• The 1954 Act prohibits advertising any drug, whether approved or not, for 54 listed medical conditions, including diabetes, cancer, and hypertension.
• Even if a medicine is clinically proven, its advertisement is restricted to prevent public exploitation.
• This Act was a visionary attempt to protect the public from exploitation by unethical advertisers and pseudo-medical practitioners offering magic remedies.

Digital Shift: Rise of Internet-Based Advertising

• Since 1954, the world of advertising has undergone a digital revolution.
• With the rise of Big Tech platforms including search engines, social media, video-sharing sites, and e-commerce platforms, advertisements now reach millions instantly.
• These platforms, headquartered mostly in the United States, have disrupted traditional print and broadcast advertising.
• However, this digital shift has also made it harder for governments to regulate objectionable advertisements, especially medical ads.
• For example:
  • A simple search on popular Indian search engines or marketplaces for “Ayurveda + blood pressure tablets” or “Homeopathy + diabetes” yields numerous sponsored ads.
  • These are paid advertisements promoting unproven or illegal medical treatments.
  • Even popular social media platforms host videos by godmen claiming miracle cures for diseases through ayurvedic or herbal products.
  • Some even promote cow-urine-based products for cancer treatment, in open violation of Indian law.
• Despite clear prohibitions under the DMR Act, these platforms continue to profit from such objectionable advertisements.

Double Standards: Different Rules for Different Countries

• Interestingly, Big Tech follows strict advertising standards in the U.S.
• In America, advertising therapeutic claims without approval from the Food and Drug Administration (FDA) can result in criminal prosecution.
• Platforms there pre-screen advertisements and often reject non-compliant content to avoid legal consequences.
• Yet, in India, the same companies run objectionable medical ads freely, without any warnings or filters.
• This shows a clear double standard – one set of ethical rules for developed countries and another for developing nations.
• Such practices reflect not just negligence but also a colonial attitude toward Indian consumers.

Big Tech’s Disregard for Indian Law

A Legacy of Contempt

• Analysts believe that American corporations have historically shown contempt for Indian laws and lives – a pattern visible since the Union Carbide tragedy.
• This attitude possibly stems from systemic racism, where Indian lives are undervalued compared to Western consumers.

Previous Violations Under PNDT Act

• Big Tech’s disregard for Indian law is not new.
• In 2008, a Public Interest Litigation (PIL) was filed in the Supreme Court of India against tech platforms for violating the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PNDT Act).
• The law bans any advertising or promotion related to sex determination of unborn children.
• However, Big Tech platforms argued they were merely “intermediaries”, not “publishers”, and thus not responsible for ad content.

The ‘Intermediary’ Argument

• Under Indian law, intermediaries are exempt from liability for user-generated content if they lack direct knowledge of it.
• But in advertising, Big Tech’s role is not passive – it actively promotes, signs contracts, and accepts payments from advertisers.
• Hence, these platforms are publishers, not intermediaries, and are fully responsible for violating laws like the DMR Act.

Weak Enforcement Encouraged Impunity

• The PIL on PNDT violations dragged on for nine years, ending with a weak court directive to form a government committee instead of ordering criminal prosecution.
• This failure to enforce accountability emboldened Big Tech, reinforcing a sense of immunity and impunity in India.

Why Big Tech Feels Untouchable in India

No Fear of Extradition

• The U.S. government is unlikely to extradite top executives to India for trial under the DMR Act.
• Hence, American management faces no personal risk for violations committed in India.

Corporate Loopholes

• The Indian subsidiaries of these tech giants are legally distinct entities.
• Since the parent companies abroad own and operate the ad platforms, Indian authorities cannot easily prosecute local staff.

Regulatory Weakness

• India’s slow judicial processes and limited enforcement mechanisms create a regulatory vacuum.
• This emboldens Big Tech to continue its illegal advertising practices without fear of punishment.

Need for Immediate Reforms

Criminal Prosecution

• India must register first information reports (FIRs) against senior management of offending platforms.
• The DMR Act provides for criminal liability and its enforcement will serve as a strong deterrent.
• If companies refuse to produce their personnel in Indian courts, it will compel structural reforms in the digital governance framework.

Localization of Accountability

• India can adopt the American model for regulating TikTok, which ensures local accountability.
• All key managerial staff responsible for content and advertisements in India should be Indian citizens and based within Indian territory.
• This ensures that those making policy decisions are legally answerable to Indian courts.

Threat of Jail Time

• Without the threat of imprisonment for responsible executives, compliance will remain superficial.
• Jail time for repeated violations would force global companies to treat Indian law seriously.

Revocation of Legal Immunity

• If Big Tech continues to disregard Indian laws, the government should revoke intermediary immunity granted under Section 79 of the IT Act.
• These platforms cannot enjoy protection while actively publishing unlawful advertisements.

Strengthening the DMR Act Framework

• The DMR Act should be updated to address digital and algorithm-based advertising.
• New amendments should:
  • Mandate pre-screening of prescription drug advertising online.
  • Require transparency reports on rejected or flagged health ads.
  • Impose heavy financial penalties for repeated violations.
• The Consumer Protection Act could also be leveraged to strengthen the legal framework against objectionable advertisements.

Enhancing Enforcement Mechanisms

• State licensing authorities, such as the Uttarakhand licensing authority, should be empowered to take action against platforms hosting objectionable medical advertisements.
• The Advertising Standards Council of India could play a more active role in monitoring and flagging problematic health-related ads.
• A robust grievance redressal mechanism should be established to address complaints about objectionable advertisements promptly.

Conclusion

India must act decisively to hold Big Tech accountable for objectionable medical ads. Strong enforcement, localized accountability, and legal reform are essential to protect public health and uphold India’s digital sovereignty and legal dignity. By updating the DMR Act, strengthening the role of state licensing authorities, and leveraging bodies like the Advertising Standards Council, India can create a more effective regulatory framework to combat misleading health advertisements in the digital age.

Source: The Hindu

Mains Practice Question

Examine the relevance of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, in the context of digital advertising by Big Tech platforms in India. Discuss potential reforms to enhance its effectiveness in the modern digital landscape.