Monopolies and Restrictive Trade Practices Commission
In Re: Indo-German Pharmaceuticals vs Unknown on 17 October, 1986
Equivalent citations: [1987]61COMPCAS432(NULL)
ORDER D.C. Aggarwal, J.
1. This is an enquiry under Section 36B(d) read with Section 36A/36D of the Monopolies and Restrictive Trade Practices Act, 1969, against M/s. Indo-German Pharmaceuticals of Bombay (hereinafter referred to as "the respondent") for having advertised in the newspaper "Aaj" dated February 23, 1985, published from Patna, a drug named "Energy Forte". As per the notice of enquiry, the respondent has by the advertisement claimed (i) the medicine can cure many diseases including sex disorders but under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, such advertisements are prohibited; (ii) the medicine is a general tonic for gaining strength, vigour and vitality.
2. The notice of enquiry says that the advertisement is misleading and false and, therefore, it is unfair trade practice within the meaning of Section 36A(1)(i) and (vi) of the Monopolies and Restrictive Trade Practices Act.
3. The respondent did not appear to contest the notice of enquiry but by registered post sent a reply. This reply purports to have been signed by Mr. Rajeev S. Thatte, managing director of the respondent manufacturing company. Inter alia, he says that the respondent company has no intention of infringing the law and that the Commissioner, Food and Drugs Administration, Government of Maharashtra, who controls the advertisements, has no machinery for prior scrutiny of the advertisements but whenever any criticism about a particular advertisement appears, they make due amends. It is stated that the respondent has not issued any advertisement since March, 1985. The respondent also gave a full and detailed statement of the sales made every month from January, 1985, to May, 1986. However, it is stated that the ayurvedic medicine is free from toxic effects and the ingredients thereof have been disclosed on the label outside.
4. A preliminary investigation report was submitted to the Commission by the Director-General (Investigation and Registration). It is submitted by him that the advertisement merely indicates that the medicine is useful for improving vigour and vitality whereas it is actually meant to improve sexual potency. This being so, the avertisement does not project the true character of the medicine and the need therefor. So, according to him, this advertisement falls within the ambit of Sub-clauses (i) and (vi) of Clause (1) of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969.
5. Since the respondent did not appear to contest the notice of enquiry, ex parte proceedings were ordered by order dated August 22, 1986. It is in this way that Mr. Samir Biswas, Joint Director (Legal), appeared as AW-1. He produced documents, exhibit A-1 to exhibit A-17. In his statement, he referred to Section 3 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, exhibit A-13, whereby publication of any advertisement with respect to a drug in terms which suggest the use of that drug for the maintenance or improvement of the capacity of human beings for sexual pleasure is prohibited.
6. Exhibit A-1 and exhibit A-2 are the two advertisements in Hindi. Their possible translations in English made by the office of the Director-General are exhibit A-14 and exhibit A-15. These advertisements do not directly canvass the use of the medicine " Energy Forte" for improvement of sexual potency but these advertisements have been couched in a language which suggests that adults will benefit from these medicines by improvement of the vital functions of the body and the personality. Exhibit A-12 gives the contents of this medicine which amongst others include makardhwaj, Abrak bhasma, trivang bhasma, sudha shilajit, kesar, ashwagandha, gokharu, jaiphal, lavang, sudha luchala, etc. In exhibit A-12, he also mentions the reference books which speak of the efficacy of these component-drugs for improving vitality and sperm activity. Exhibit A-10 is a copy of the licence granted by the Food and Drug Administration of Maharashtra State whereby Mr. Rajiv S. Thatte, proprietor of the respondent company, has been licensed to manufacture the ayurvedic medicines.
7. It is generally known that the contents of this medicine "Energy Forte", according to the ayurvedic system of treatment, do have tonic value and the ayurvedic physicians freely prescribe these drugs for curing physical and mental weakness. It is needless to say that one's sexual potency by and large will depend upon physical health. Therefore, so far as the efficacy of this medicine in the treatment of the ailments it is generally prescribed for is concerned, there cannot be any misrepresentation. Of course, the curative effect thereof will vary from individual to individual.
8. The relevant sub-clauses of Section 36A(1) referred to by the Director-General read as follows:
(i) falsely represents that the goods are of a particular standard, quality, grade, composition, style or model;
(ii) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services.
9. By a strange logic, the preliminary investigation report says that the medicine is actually meant for improving sexual potency but the advertisement indicates that it is useful for improvement in vigour and vitality and, therefore, it is misleading. As discussed supra, the contents of this medicine are understood to be efficacious for the improvement of mental and physical health and the improvement in sexual health cannot lag behind. There is no finding by the Director-General that this medicine is a sexual stimulant for a temporary gratification without accompaniment of improvement in general health. There is no finding that this medicine does not serve as a tonic. We, therefore, cannot agree that there is any misrepresentation about this medicine.
10. In any case, if the advertisement can be said to refer to this drug named as "Energy Forte" as leading to the use of it for the maintenance or improvement of the capacity of human beings for sexual pleasure, action can be taken not by this Commission but only by the authorities appointed under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.
11. In the result, we do not find any ground to pass a "cease and desist" order under Section 36D of the Monopolies and Restrictive Trade Practices Act. We order accordingly.
12. Announced.