The Centre today informed the Supreme Court that it will forthwith withdraw the letter sent by Ministry of Ayush to all state and Union Territories Licensing Authorities directing them not to take any action against ads related to Ayurvedic and Ayush products under Rule 170 of the Drugs and Cosmetic Rules, 1945.
This follows after a bench of Justice Hima Kohli and Justice Ahsanuddin Amanullah expressed discontent with the Ministry’s stand that the letter was issued in view of a recommendation made by the Ayurvedic, Siddha, and Unani Drugs Technical Advisory Board. The bench was hearing a contempt case against Patanjali over the publishing of misleading advertisements.
The bench questioned that how can a government say that only on recommendation they will direct authorities not to take actions? Without taking the decision, why would the Centre say that do not implement the law, the bench remarked. The Rule 170 prohibits advertisements of Ayurvedic, Siddha, or Unani drugs without licensing authorities’ approval.
Earlier on August 29, 2023, the Ministry of Ayush sent a letter to all States and UTs Licensing Authorities and Drug Controllers of AYUSH, ordering that actions under Rule 170 not be initiated by them in view of a recommendation of the Ayurvedic, Siddha, and Unani Drugs Technical Advisory Board (ASUDTAB) to omit the provision. Notably, the final notification towards omission of the Rule remained to be published at the time.
The case was listed today for consideration of the larger issue of misleading health claims made by Fast-Moving Consumer Goods (FMCGs)/drugs companies through ads, and the Union’s decision to scrap Rule 170 from the 1945 Rules. Earlier, the top court had asked the Centre to respond on what weighed with it when it decided to omit Rule 170. Responding, Additional Solicitor General KM Nataraj had submitted that he would take instructions and clarify.
During the hearing, the ASG referred to an affidavit filed by the Joint Secretary of the Ayush Ministry to point out that at least 8-9 writ petitions against the Rule were filed before various High Courts. However, the bench noted that judgment had not been delivered in any of those cases.
The ASG also tried impressing that the Delhi High Court had asked for reconsideration of the issue surrounding Rule 170. Subsequently, the bench posed that even if the High Court had directed to take a decision on the Rule, how could the government issue the letter restricting implementation of the law when the final decision (regarding omission) was not taken.
Furthermore, Justice Kohli clarified that the High Courts are not powerless; each High Court has its own view. She added that if any High Court feels that a regulation has to be kept in abeyance, it will take a moment for it to pass an order after hearing the parties. Justice Amanullah also expressed that after the court’s strong observations in earlier order, the Centre was expected to withdraw the letter.
Subsequently, the ASG assured that the letter would be withdrawn forthwith. After being informed that the final notification for omission of the Rule was sent to the Ministry of Law and Justice and objections called from the public within 30 days in February, 2024, the court directed that the process be expedited.