E-pharmacies have once again said that they are platforms like Ola and Uber, and do not need a license to operate. Just as Ola and Uber do not own cabs or have to be licensed under the Motor Vehicles Act, e-pharmacies don’t manufacture, stock, or sell medicines, but only provide a platform for their delivery.
A division bench of the Delhi High Court consisting of Chief Justice D.N. Patel and Justice C. Hari Shankar today heard two petitions against online sale of medicines – Dr Zaheer Ahmed’s (w.p.11711/2018) and another by South Chemists & Distributors Association (w.p.10611/2018), along with Dr Ahmed’s contempt petition (Cont.Cas[C] 355/2019). Senior advocate Amit Chadha represented 1mg Technologies, and Jayant Bhushan represented Dr Ahmed. The case now involves online pharmacies 1mg, LifCare, Pharmeasy, and concierge service Dunzo.
Chadha said online pharmacies do not sell, stock, or manufacture drugs on the platform, but “we’re only a platform,” and so “we don’t need a license”. Justice Hari Shankar asked him, “Are you saying you’re like Amazon?” Chadha reiterated that e-pharmacies are like Ola, Uber, which don’t “own a single cab”, and don’t have licenses under the Motor Vehicles Act. Similarly, Swiggy doesn’t have a license either. “We are only the ‘Ramu’,” Chadha said, a reference to errand boys.
E-pharmacies had put up the same defence in the last hearing (for the contempt petition), and had said that they’re like Swiggy and do not need a license. The court had granted the Centre more time to file their reply since its still working on the draft rules for e-pharmacies (see order here). Both writ petitions and the contempt petitions are listed for final hearing on November 29.
The Union of India in its reply to Dr Zaheer Ahmed’s petition said that it has circulated a copy of the Delhi HC’s December interim ban order to all state drug controllers. “That’s all the Central government has done,” said Bhushan, “when the government should be issuing directions for others to comply with the interim ban order.” He continued:
- He said online sale of medicines are “highly dangerous” and medicines meant to be sold only by registered medical practitioners are being sold by e-pharmacies.
- There’s no method by e-pharmacies to verify that prescriptions are bonafide.
- Every point of medicine sale is licensed under the Drugs & Cosmetics Act, 1940, which is not the case with e-pharmacies
- E-pharmacies like NetMeds continue to run advertisements for medicines available on discounts on TV and on their websites.
Multiple High Courts are awaiting Centre’s final rules for e-pharmacies
Chadha argued there are similar cases in 7-8 high courts all over the country, and most of them are waiting for the Centre to finalise the draft e-pharmacy rules. These include cases in the Mumbai HC, Madras HC, Calcutta HC, and Patna HC, among others.
- The Mumbai HC is awaiting the Centre’s final rules for e-pharmacies.
- The Madras HC had placed an interim ban on online sale of medicines but later vacated the order, and is now awaiting the Centre’s rules.
- The Delhi HC had based its order on the Madras HC order, which is now vacated
Currently, there is no provision under the Drugs and Cosmetics Act for online pharmacies to get an e-commerce license, said Chadha. But according to Bhushan, the interim injunction from the Delhi HC banned the online sale of medicines without license. This means it applies to anybody who assists in an online sale of medicines as well, he said. “E-pharmacies are an accessory in sale of medicines online,” he said. The Delhi HC passed a “sole interim order irrespective of what the Madras HC order” but “e-pharmacies are continuing sales with impunity”, he said.
According to him, the “authority of the court is being whittled down” and the court “must come down with a heavy hand” for violation of its interim ban order.
The case is now listed for November 29, 2019.
Dr Ahmed’s contempt petition, Centre says rules being drafted
Dr Zaheer Ahmed had in April 2019 filed a contempt petition in the Delhi HC against the Centre, the Delhi government, CDSCO (Central Drugs Standard Control Organization), the Delhi Drugs Controller, and e-pharmacies such as 1mg, LifCare, Pharmeasy, and concierge service Dunzo. Dr Ahmed said the e-pharmacies had continued operations despite the Delhi HC placing an injunction on their operations in December 2018. Union health secretary Preeti Sudan is the named respondent for the Centre in the contempt petition.
In the previous hearing of the contempt petition held on July 4, the Centre had submitted that rules for online pharmacies are being formulated, but without specifying a timeline for when they would be finalized.
Delhi HC has placed an interim ban on online sale of medicines without license
Ahmed’s petition was filed last year, and seeks to ban the operations of e-pharmacies, citing them a public health risk, easy to manipulate, and unsafe, among other things.
In December 2018, the court had passed an interim ban on online sale of medicines without license, and directed the Central government and Delhi government to restrain the online sale of medicines; it cited a similar ban passed by the Madras HC (which was later lifted) as precedent. “We see no reason why similar directions be not issued in the present case,” said the Delhi HC’s order on December 12, 2018.
Most importantly, the order noted that the petitioner’s lawyer Arvind Nigam told the court that the draft rules prepared and circulated by the Health Ministry will prohibit the online sale of medicines. This is untrue, and contradicts the Draft Rules for E-pharmacies, 2018 which would legitimize the business of e-pharmacies by bringing them under the fold of the Drugs and Cosmetics Act.