If Doctors Are Mandated To Prescribe Only Generic Drugs, Issue Of Pharma Companies Bribing Will Be Resolved, Says Supreme Court

The Supreme Court today orally remarked that the issue of pharmaceutical companies allegedly bribing doctors toprescribe excessive or irrational drugs and push for high-cost overpriced brands would be resolved if there was a statutory mandate for doctors to prescribe generic medicines. 

A bench of Justice Vikram Nath, Justice Sanjay Karol and Justice Sandeep Mehta was hearing a petition which contends that pharmaceutical companies are bribing doctors to bring business and to prescribe excessive and/or irrational drugs and a push for high-cost and/or over-priced brands. It seeks a direction that till the Uniform Code of Pharmaceutical Marketing is given the colour of a legislation, the Court may lay down the guidelines to control and regulate unethical marketing practices by pharmaceutical companies.

In the alternative, it also implores the Court to make the existing Code binding with such modifications/additions as the Court may find proper and reasonable, which should be followed by all the authorities/courts under Articles 32, 141, 142 and 144 of the Constitution. The notice was issued to the Union in this matter in March 2022.

At the outset, the Court stated that since the matter would take some time, it would keep it for hearing after vacation. The Counsel for the petitioner, Senior Advocate Sanjay Parekh, informed the Court that the Respondents have filed counter-affidavit in which they have stated that a High Powered Committee has been appointed. He remarked that, however, there is nothing on record as to what the Committee has suggested as a recommendation.

At this juncture, Justice Mehta asked if there is any statutory mandate that the doctors must prescribe generic drugs only and not those of some specific company or brand.

"This will follow in line with what you are praying. In Rajasthan, there is now an executive instruction that every medical professional with have to prescribe generic medicine. They can't prescribe by any company name. That should take care of the things," Justice Mehta averred. He added that this was through a direction passed in a public interest litigation in the case Vijay Mehta.

Parekh responded that there is no statutory mandate and only a "voluntary code" exists in place that doctors should prescribe generic drugs. He also stated that there was a matter before the Supreme Court related to this issue.

To this, Justice Mehta suggested that he look into this aspect. "Just think of this in this line, if this direction is given across the country. Then all these things will be taken care of."

He added that Rajasthan could be looked at as an example. The Counsel for the Respondent informed that there is actually a direction in place by the Indian Medical Council for all doctors to prescribe generic medicines only. 

Nevertheless, the Court kept the matter for hearing on July 24.

The Petitioner No. 1 is the Federation of Medical & Sales Representatives Association of India (FMRAI), a national level Trade Union with local units in 300 cities and towns of the country, registered in 1963 under the Trade Unions Act, 1926.

Petitioner No. 2 is the Secretary of Petitioner No. 1 Union. Petitioner No. 3 is the National Coordinator of Jan Swasthya Abhiyan, an organization involved in health-related issues, and has been working as the pharmaceutical industry's watch since the last 40 years. Since 2005, the Petitioners have been seeking effective prevention and control of unethical marketing practices in the pharma industry by way of an enforceable Code of Ethical Marketing, through regular interaction with the Respondent No. 1 (MINISTRY OF FERTILIZER AND CHEMICALS, DEPARTMENT OF PHARMACEUTICALS).

The petition has been drawn by Advocate Surabhi Agarwal and filed through Advocate Aparna Bhat

Case Details: FEDERATION OF MEDICAL AND SALES REPRESENTATIVES ASSOCIATIONS OF INDIA AND ORS. v. UNION OF INDIA AND ORS.|W.P.(C) No. 323/2021