Rarely do courts give completely different opinions on a single issue. However, the Delhi High Court and the Madras High Court recently took different views on whether sale of online medicines should be permitted in the absence of a definitive law regulating it.
In an interim order, the Delhi High Court has imposed a ban on the sale of drugs online. This was followed by an order of the Madras High Court saying that it cannot be stopped “all of a sudden”.
Laws yet to be framed
Online sale of prescription medicines is a relatively recent phenomenon in India and laws are yet to be framed to regulate the industry.
With exponential growth of Internet users in India, there has been a corresponding growth in online sale of consumer goods. Several Internet platforms have opened up websites where consumers can buy medicines without having to visit brick-and-mortar stores. While this makes the process more convenient for consumers, there are opposite views on banning online sale of medicines till regulations kick in.
In September 2016, a report by the sub-committee constituted by the Drugs Consultative Committee had stated that e-pharmacy although in its nascent stage could account for 5%-15% of total pharma sales in India.
The report said the Indian pharmaceutical industry is the third largest in the world by volume and tenth in value. Its total size is about ₹2 lakh crore, of which exports account for nearly 55%. India meets its own 95% domestic demand through indigenous production. There are around 8.5 lakh licensed drug sale premises in the country at present.
The sub-committee was of the view that any ill-effects of online sale of medicine will be irreversible. Hence, it recommended that until systems and specific provisions are in place, e-pharmacy may not be allowed.
The Ministry of Health and Family Welfare has said that “sale of such drugs other than from a licensed premise is not in conformity with these rules [Drugs and Cosmetics Rules]”.
Sale of medicine in the country is regulated under the Drugs and Cosmetics (D&C) Act. Several specified drugs cannot be sold except on and in accordance with a prescription by a registered medical practitioner from licensed premises.
The sub-committee had noted that there are some “alarming risks” involved in case sale of drugs through the Internet. First, monitoring of fake and illegal pharmacies could be a challenge and cyber experts need to be employed to tackle such cases. Secondly, a scanned copy of a prescription is not considered authentic under the D&C Act as well as under the Information Technology Act. One prescription can be uploaded on two different e-pharmacy sites, leading to drug abuse. Such multiple dispensing of prescriptions can lead to misuse of drugs and increase the number of drug addicts, especially youth.
Delhi HC’s stand
The sub-committee had said that sale of psychotropic drugs, which can be easily abused, will increase. So will diet pills, libido enhancers and cosmetic fillers. Even minors will be able to order controlled medication and consume it without supervision of parents or guardians.
On December 12 last year, the Delhi High Court had banned online sale of medicines without licence. The order came on a petition filed in public interest by a senior dermatologist claiming that drugs are highly potent and their misuse or abuse can have serious consequences on human health.
Dermatologist Zaheer Ahmed had contended that online pharmacies operate without a drug licence. He said a large number of children or people from uneducated background use the Internet and can fall prey to wrong drugs while ordering medicines online.
Dr. Ahmed said he was shocked to learn that one of his patients was able to get from an online site a prescription drug, which cannot be sold without a valid prescription, despite not submitting any proof or prescription.
Madras HC’s view
His plea before the Delhi High Court also pointed out that it was easy for anyone to get a fake prescription and order the drugs online.
The Tamil Nadu Chemists and Druggists Association had moved the Madras High Court seeking to block links to all websites doing online sale of Schedule H, H1 and X medicines in India.
The association had contended that online sale of medicines was being done through more than 3,500 websites, which were distributing drugs all over the country.
A single-judge Bench of the Madras High Court had on December 17 last year told traders not to proceed with their online business in drugs till the rules are notified by the Central government.
“Unless the legislation keeps pace with technology, commerce based on technology has to lag behind,” Justice Pushpa Sathyanarayana had observed.
Justice Sathyanarayana also directed the Centre to notify the proposed Drugs and Cosmetics Amendment Rules, 2018, in the Gazette before January 31. This was challenged by various online vendors before a larger Bench of the Madras High Court.
Some of the online pharmacies had contended that their business model only sought to facilitate sale and purchase of medicines through their site. Any patient intending to purchase prescription drugs is required to upload a valid prescription from a licensed medical practitioner. The online aggregators stated that the online system itself was designed in such a manner that a request for prescription drugs would be rejected unless a valid prescription is uploaded by the customer with such an order.
It stated that it only provides a technology platform to connect consumers to the brick and mortar third-party licensed pharmacies, and the sale of medicines itself is concluded directly between the third-party licensed pharmacies and the customers.
Benefits for elderly
It listed various benefits for senior citizens and said that online vending provides convenience for the elderly; for those who have mobility issues, the online delivery medium is crucial.
Later, on January 2, this year, a Division Bench of the Madras High Court had noted that it may not be possible for all consumers to go to medical shops and buy medicines.
“Online sale is going on for quite some time. If all of a sudden it is stopped till the amendments are notified, it would definitely create grave hardship, inconvenience and health issues to the patients/persons concerned, who order medicines through online platforms,” the Bench noted.