Uttarkhand’s drug controller sought responses from Patanjali Ayurved over its misleading ads promising miracle cures for serious ailments under a section of the Drugs and Cosmetic Rules Act, 1945 that had been stayed by the Bombay high court, and not under the pertinent provisions of the Drugs & Magic Remedies (Objectionable Advertisements) Act, 1954, according to official documents and people aware of the matter.

This happened not once but five times between April 2022 and February this year. Patanjali, its public face Baba Ramdev, and its managing director Balakrishna, have come under criticism by the Supreme Court in connection with the company’s and their lapses in adhering to an order from the court on stopping such misleading ads, in response to a case filed by the Indian Medical Association (IMA).

The roles of the state and the Union government have also come under the court’s scrutiny.

In what some people see as a response to such criticism, the Union government, through the ministry of health and family welfare, issued a public notice in several newspapers in the past week titled “Prohibition of advertisement of Ayurveda, Siddha, Unani & Homeopathy or any other drug or treatment of diseases mentioned in Schedule of Drugs & Magic Remedies (Objectionable Advertisements) Act, 1954”. The notice said that ads or announcements “claiming treatment of diseases” mentioned in the aforementioned schedule and “publication of misleading advertisements making false claims” is an offence under the Act.

But what is not clear is why Uttarakhand’s drug controller, Ayurvedic and Unani Services, did not even mention this law in its notices to Patanjali Ayurveda and its subsidiary Divya Pharmacy.

The drug controller issued notices to the company under Rule 170 of Drugs and Cosmetic Rules Act, 1945, and not under Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, according to information obtained under the Right to Information (RTI) law, by Kerala-based activist Dr KV Babu. Rule 170 prohibits the advertisement of Ayurvedic, Siddha, and Unani drugs without the state licensing authority’s approval. It was stayed by the Bombay high court in February 2019 following a petition by the Ayurvedic Drug Manufacturers Association, of which Divya Pharmacy is a member.

The drug controller’s action came under judicial scrutiny when the Supreme Court said on Wednesday that the Uttarakhand government kept its “eyes shut” by not cracking down on misleading advertisements that made false claims of curing diseases such as diabetes and asthma. A bench of justices Hima Kohli and Asanuddin Amanullah also pulled up the state and central governments for failing to register cases.

“I agree with the Supreme Court,” said Kerala-based doctor Dr KV Babu, who has filed several RTI applications on the misleading advertisements, alleging that the state government deliberately did not take any action against the company despite clear violations.

“The fact is that all they have been doing since 2022 is communicating with each other (Uttarakhand drug controller with the Ayush ministry and the local drug inspector) without taking any concrete action against Patanjali Ayurved or Divya Pharmacy under the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 under which I had lodged the complaint in February 2022,” he said.

Dr Babu said that after he raised the issue in February 2022, the State Licensing Authority (SLA) conducted three inspections and issued five notices. “But no concrete action was taken. The inspections were carried out in November 2022, March 2023 and March 2024. Five notices were issued to Patanjali Ayurved in April 2022, November 2022, March 2023, and November-December 2022 and January-February 2024.”

His complaint was specifically regarding a misleading advertisement by Divya Pharmacy carried by a newspaper on 21st February 2022, and based on it the Ayush ministry asked the SLA Uttarakhand to investigate the matter for “withdrawal of advertisement” for contravening the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.

But, as mentioned above, the drug controller instead issued notices to the company under Rule 170 of Drugs and Cosmetic Rules Act, 1945.

In November 2022, Dr Babu received a reply from the ministry that no action can be taken as the matter (related to Rule 170) was “subjudice and pending before the Hon’ble High Court, Mumbai in Writ petition 289 of 2019, and the necessary action may be taken subject to the final decision of the court”.

In the Supreme Court, the SLA said in its affidavit that “in spite of multiple notices sent by the State Authorities to Divya Pharmacy and Respondent No. 5 Company-Patanjali Ayurved Limited; to all such notices, Divya Pharmacy/Patanjali Ayurved Limited has replied by taking refuge under the Bombay High Court’s Interim Order (Annexure R-3)”.

“Therefore, in view of the above Stay Order and pending petition before the Bombay High, Court, the SLA at its level, could not take coercive steps against Divya Pharmacy and/ or Patanjali Ayurved Limited,” it added.

Assistant Drug Controller, Ayurvedic & Unani Services, Krishna Kant Pande said notices were issued to Patanjali Ayurved and Divya Pharmacy on the issue of misleading advertisements, but they couldn’t proceed further as the matter was cited as subjudice.

Pande said they were not favouring Patanjali Ayurved in any way, “Under Rule 170, Patanjali Ayurved had to seek permission for advertisements. They hadn’t sought any permission and that is why they were issued notices,” he said.

Patanjali Yogpeeth spokesperson SK Tijariwala said he was in a meeting.