May 2024

Apr 30,2024 As Supreme Court intensifies its focus on companies against misleading advertisements, amendment to strengthen the Drug and Magic Remedies (Objectionable Advertisements) Act, 1954 have been in stuck with the Union Health Ministry since February 2020, reported ToI. In response to an RTI application seeking the status of the amendment, the ministry responded last month that the matter was still “pending”. The Ministry had formed the committee through an order back on December 10, 2019. It included representatives from Ayush Ministry, Consumer Affairs department, Information and Broadcasting Ministry and a few state drug controllers. The draft amendment bill was made public for comments on February 3, 2020, just when Covid struck. The committee that drafted the amendment bill had recommended the DMR(OA) (Amendment) Bill 2020 “in order to giving the sharper teeth (sic) and to keep pace with the changing time and technology”. The main changes proposed were to enhance punishment and to increase the number of conditions for which ads for drugs claiming to diagnose, cure, mitigate, treat, or prevent would be prohibited from 54 to 78. The penalty was to increase from “imprisonment which may extend to six months or with fine, or with both” for first conviction to “imprisonment which may extend to two years and fine up to ten lakh rupees”. For subsequent convictions, penalty under DMRA is “imprisonment which may extend to one year, or with fine, or with both”. The amendment proposed to increase it to imprisonment up to five years and fine up to fifty lakh rupees. All comments received were compiled by the CDSCO (Central Drugs Standard Control Organisation) and sent it to the ministry by the end of June 2020. A draft cabinet note was put up before the health minister in November 2020 and a slide presentation on the draft was made by the CDSCO on the request of the ministry. The next month, it was suggested that the draft be circulated among all states as they would be the ones to implement it. The file circulated some more till Covid put a stop to it. It was next picked up in September 2022 when it was decided that a meeting ought to be held with the drug controller general of India on the matter. From the RTI reply recently, it appears that there has been no progress after that. The DMRA amendment was initiated on the recommendation of a Parliamentary standing committee, whose report tabled in March 2018 stated that “it is the need of the hour to strictly monitor and regulate the misleading advertisements for promoting the sale of AYUSH medicine”. Unlike the Drugs and Cosmetics Act, 1940, DMRA brings within its ambit medicines of all systems including Ayurvedic drugs. This is why many of the complaints against Patanjali’s drugs were filed under DMRA as they claimed to cure/treat diseases listed under the DMRA. “Despite the parliament committee’s recommendation to enact a strong law to prevent misleading and illegal ads, it is clear from the file noting that I obtained through RTI, that there is no file movement since 2022. I complained to the Prime Minister’s office and even after direction from the PMO, they are sitting on it,” said Dr Babu, an ophthalmologist and RTI activist, who has filed several complaints against Patanjali ads for violating DMRA. Source: Economic Times

May 06,2024 Regardless of whether you have purchased a flat, bungalow, or a house, you have the right to file a case if you have any grievances where you feel that the RERA Act may have been violated. The Real Estate Regulatory Authority (RERA) Act was enacted for this very purpose — to solve home buyers ‘ grievances and promote a healthy real estate market in India. It is important to consider that in some situations, taking legal action through civil court may be the best course of action or the only option available. So, the question is how you should decide which way to move. We tell you how to choose. As per an ANAROCK report (released in December 2023), which cited data from the Ministry of Housing & Urban Affairs (MoHUA), 1,16,300 cases of homebuyers’ disputes since 2016 till November 28, 2023, have been resolved by RERA courts across India. One of the criteria for filing a case under RERA is that the respective home/flat/bungalow etc., must be registered under the RERA Act. Registration under the RERA Act is mandatory for every real estate project with more than eight apartments or a size of more than 500 square metres. “Complaints can be filed by home buyers under Section 31 of the Real Estate (Regulation and Development) Act, 2016, either with the Real Estate Regulatory Authority or the adjudicating officer. Cases can be against promoters, allottees and/or real estate agents for any violation or contravention of the provisions mentioned under the RERA Act such as delay in possession, demand for advance payment above 10% without execution and registration of agreement for sale, structural defects and others,” says Heena Chheda, Partner, Economic Laws Practice, a law firm. Chheda says that the RERA Adjudicating Officer is empowered to determine the compensation payable in matters pertaining to Sections 12, 14, 18 and 19 of the RERA Act. “The RERA Authority is empowered to adjudicate the dispute pertaining to the violation or contravention of the provisions of the RERA Act or the rules and regulations made thereunder,” she says. “During the pre-RERA period, the industry was often seen as less transparent, with buyers frequently facing delays in project deliveries and discrepancies with amenities as promised and those that were finally delivered. Post-RERA, the industry has seen significant improvements in transparency and accountability. RERA has played a crucial role in formalizing the real estate sector while also promoting fairness and transparency in real estate deals. This has not only benefited buyers but has also provided genuine developers a level playing field,” says Prashant Sharma, President, National Real Estate Development Council (NAREDCO) Maharashtra. Legal experts say that aggrieved home buyers file a case in RERA first and then approach the RERA Appellate Tribunal and then the high court and then ultimately the Supreme Court if their dispute is not solved. “As per Section 79 of the RERA Act, Civil Courts shall not have any jurisdiction to entertain any suit or proceeding concerning matters that the Real Estate Regulatory Authority (RERA), adjudicating officer or Appellate Tribunal is empowered to determine under the RERA Act,” says Shabala Shinde, Partner, Grant Thornton Bharat, a tax and business consultancy firm. The RERA Act provisions are applicable in addition to existing legal Acts, which means all other Acts can be made applicable while deciding a case under the RERA Act. “The intention is to avoid duplication of legal processes and ensure consistency in resolving real estate related disputes. However, Section 88 does specify that provisions of the RERA Act shall apply in addition to and not in derogation of other applicable laws,” says Shinde. Source: Economic Times

May 04,2024 The Consumer Protection Act, 2019 safeguards consumers’ rights and covers all goods and services of all public, private, or cooperative sectors, except those exempted by the central government. This Act provides consumers with a platform for grievance redressal and compensation. As per the Act, individuals who feel wronged after purchasing goods or services can seek help from consumer commissions to resolve their issues. “Any person who has purchased goods or availed any services for its personal use could file a case in the consumer forum if the goods so purchased are defective, or the services suffer from any deficiency or shortcoming,” says Abhay Pratap Singh, Partner, GnS Legal, a law firm. “Consumer should not tolerate the inconvenience or wrong done to them and file appropriate complaints to ensure the same is not repeated by the unscrupulous traders to them and others in the society,” says Vijay Kumar Makyam, a distinguished lawyer who is currently serving as a member of District Consumer Redressal Commission, Medak at Sangareddy. “A prescribed fee is required to be paid depending on the consideration paid by the consumer. Moreover, ensure that the complaint is filed within two years from the date the cause of action arose. Additionally, don’t forget to serve a personal or legal notice to the opposite party before filing the case,” says Subramanium. Another application needs to be filed if the consumer commission’s order is not complied with. “If the final order is not complied with in time, file an application seeking execution,” says Subramanium. “Most times consumers neglect to file a complaint as they are occupied with their regular work and do not take time to fight the menace against corporate giants; however, the Government has built a consumer-friendly environment and they have called these dispute settlement platforms/Commissions instead of Calling them as Courts (to ensure the Consumer are not deterred with lengthy procedures of regular Courts); At these commissions, summary proceedings will be taking place for expedited justice,” says Makyam. Source: Economic Times

May 07,2024 It is imperative for celebrities and public figures to act responsibly while endorsing a as advertisers and endorsers are equally responsible for issuing misleading advertisements, the Supreme Court said on Tuesday. Clamping down on misleading advertisements, the apex court directed that before an advertisement is permitted to be issued, a self-declaration be obtained from the advertisers on the line of the Cable Television Networks Rules, 1994. Rule 7 of the 1994 rules deals with advertisement code and stipulates that advertisements carried in the cable service shall be designed to be in conformity with the laws and should not offend morality, decency and religious susceptibilities of the subscribers. “We are of the opinion that advertisers, advertising agencies and endorsers are equally responsible for issuing false and misleading advertisements,” a bench of Justices Hima Kohli and Ahsanuddin Amanullah said. “Endorsements by celebrities, influencers and public figures go a long way in promoting products and it is imperative for them to act with responsibility while endorsing any product in the course of advertisement and taking responsibility for the same…,” the bench observed. The top court said the ministries concerned need to set up a specific procedure which will encourage consumers to lodge complaints regarding misleading advertisements and the complaints be taken to their logical conclusion. It said self-declarations by advertisers shall be uploaded on the ‘Broadcast Seva’ portal which runs under the aegis of the Ministry of Information and Broadcasting Regarding advertisements in the print media, the bench said the ministry shall create a portal within four weeks and advertisers shall file self-declaration before issuing any advertisements. The bench said the proof of filing self-declaration has to be made available by the advertiser to the broadcaster or publisher. It also asked the health ministry to file an affidavit regarding complaints received from 2018 onwards by the Food Safety and Standards Authority of India on misleading advertisements concerning food products and also details of action taken or proposed to be taken on them. The bench referred to the Central Consumer Protection Authority guidelines including those related to children-targeted advertisements and duties of the manufacturer, service provider, advertiser and advertising agency. It also perused the affidavits filed by the ministries of Ayush, consumer affairs and information and broadcasting. Source: Economic Times