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Smsj bench Madras High Court Overturns Order Restraining Online Sale of Drugs

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Madras High Court Overturns Order Restraining Online Sale of Drugs

 SHIVANI BHARGAVAon

A division bench of the Madras High Court on June 25 set aside an earlier order by a single judge bench of the same court, which prohibited online pharmacies from engaging in digital trade of medicines, The Economic Times reported. This might set a precedent in other ongoing cases, the report noted.

What was the Court’s stance on E-Pharmacies before this?

In December 2018, the Tamil Nadu Chemists and Drugs Association (TNCDA) filed a writ petition in the Madras High Court in response to which the Court had ruled that e-pharmacies were “bound not to proceed with their online business in drugs and cosmetics” until rules regarding this were framed by the Central government. After appeals by online pharmacies, the case was heard and disposed of on Tuesday by Justices SM Subramaniam and C Kumarappan.

What was the TNCDA’s Writ Petition about?

The petitioners in this case, the TNCDA had argued that the Indian Drugs and Cosmetics Act, 1945, which governs the sale of medicines in the country, was formulated before computers and online businesses came into existence, and that since India does not have concrete rules governing the online sale of medicines, there is a chance of contaminated, expired or fake and harmful medications being sold to people. The Madras HC consequently issued an interim injunction against the online sale of medicines by e-pharmacies operating without a license.

Five e-pharmacies, NetMeds, Practo, Medlife, 1mg, and Pharmaeasy appealed against the ban. They argued that e-pharmacies were convenient for senior citizens and for those who wanted to order medicines discreetly, in addition to offering a greater choice to patients, which led the Court to suspend the ban. However, the court had reserved its final verdict at that time in this case.

Legal Challenges faced by E-Pharmacies

E-Pharmacies have at times faced legal hurdles. For instance, the Delhi High Court ordered a ban on the online sale of medicines across the country and directed the Delhi government to enforce this order, in December 2018, in response to a Public Interest Litigation (PIL) filed by a Delhi-based dermatologist. It also issued show-cause notices to several e-pharmas. However, at the time pharma executives believed that the order would only affect companies operating without a retail license. Experts also questioned the efficacy of the ban, calling for a dialogue with pharma companies instead.

The Union Health Ministry released a draft policy in 2018 aiming to regulate e-pharmacies by making amendments to the Drugs and Cosmetics Act, 1940. The draft included provisions for compulsory licensing for e-pharmacies with the Central Licensing Authority, a body established under the Drugs and Cosmetics Act by the Central Government, without which they would not be allowed to operate.

However, the Ministry had not been able to come up with a concrete policy even after the Delhi High Court ban. The Delhi HC observed in its November 2023 hearing of this case that the Union Government had been given opportunities to frame a policy on the online sale of medicines for more than 5 years but had not done so and that “in the interests of justice, the Union of India (UOI) would be given one last opportunity frame the policy with regards to online drugs within eight weeks”.

As of March 2024, the Ministry has sought more time from the court to frame a policy on this issue.

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