Consumer Can't Be Misled To Believe In False Efficacy Of Drug In Name Of Commercial Freedom Of Speech: Delhi High Court In Dabur v. Patanjali

While dealing with a suit filed by Dabur India against commercial advertisements of Patanjali Ayurved allegedly disparaging its Chyawanprash product, the Delhi High Court has ruled that consumer must not be misled to believe in false efficacy or superiority of a regulated drug in the name of commercial freedom of speech.

Justice Mini Pushkarna said that advertisers cannot be permitted to exploit their right to commercial freedom of speech by resorting to false, baseless and untruthful representations in the context of medicinal preparations and drugs.

The Court observed that the threshold at which Courts analyze misrepresentation in commercial practice has to be much higher and stricter when the product being advertised is capable of having a detrimental impact on the health of the consumer.

“Advertisements cannot urge people not to buy a certain product as the same constitutes disparagement. Therefore, any representation by an advertiser which contravenes the requirements of professional diligence and is likely to materially distort economic behaviour of the average consumer with regard to the product is disparagement,” the Court said.

It added that lower threshold for tolerance of untruthfulness is the norm in the law relating to disparagement and degree of comparative advertising permissible in the context of medicinal preparations, especially, regulated drugs, including ASU drugs.

“What might be permitted by way of comparison or puffery in case of a toilet cleaner might not be permissible when the product involved is a regulated drug,” the Court said.

Justice Pushkarna restrained Patanjali Ayurved from running advertisements allegedly disparaging to Dabur's Chyavanprash product.

It directed Patanjali to delete the lines, i.e., “Why settle for ordinary Chyawanprash made with 40 herbs?” and modify its Print Advertisements in both Hindi and English languages.

The Court also directed Patanjali to delete from the TVC the line i.e., “Jinko Ayurved or Vedon ka gyaan nahi Charak, Sushrut, Dhanvantri aur Chyawanrishi Ki Parampara ke Anuroop, original Chyawanprash kaise bana payenge.”

The Court observed that the fact that Dabur advertises its products as having 40+ ayurvedic herbs, and the impugned Print Advertisements clearly caution consumers not to settle for Chyawanprash which has 40 ayurvedic herbs, is aimed at identifying Dabur's product.

It further said that the Court cannot ignore the diverse and widespread viewership of television channels and electronic media and that electronic advertisements have a larger audience pool and a deeper impact on the viewers, affecting their choices and preferences.

“Therefore, while dealing with cases of electronic advertisements, Courts have to be mindful of the overall message which an advertisement seeks to communicate,” it said.

Title: DABUR INDIA LIMITED v. PATANJALI AYURVED LIMITED AND ANR