Madras High Court enforces blanket ban on online sale of medicines

In another setback for e-pharmacies, the Madras High Court on Monday enforced a blanket ban on the sale of online medicines till there is clarity on the regulations in the sector.

Justice Pushpa Sathyanarayana, while disposing of a mandamus writ petition, directed that the ban would remain for an indefinite period until the central government passes necessary rules and regulations that allow for the online sale of medicines.

Accordingly, the central government through the Department of Health and Family Welfare, which was the first respondent, took an undertaking to publish rules pertaining to the issue at hand in the next three months.

While The Tamil Nadu Chemists and Druggists Association was the petitioner in the case, online pharmacists like Practo, PharmEasy, Netmeds, 1mg and Medlife International were among the 13 respondents.

Following the ruling by the Madras HC on Monday, Pradeep Dadha, founder and chief executive of Netmeds said, “We would be filing an appeal and taking the required recourse available under the law. The benefits of affordable and accessible medicines through our services have been appreciated by customers across the country, and as a fully licensed pharmacy, Netmeds.com is committed to adhering to all the guidelines and standards as prescribed under the Drugs and Cosmetic Act of 1940.”

The new order comes a month after the Madras High Court passed a similar order that was in effect till November 9. The new order has only extended the ban until legal clarity is reached.

It also comes a week after the Delhi HC also issued a ruling prohibiting e-pharmacies from selling medicines online without a valid licence across the country.

At the heart of the problem is the contention by the petitioner that the online sale of medicines was in contravention of the Drugs and Cosmetics Rules, 1945. Accordingly, sections of the rules stipulate that the online sale of drugs that fall under Schedule H, H1 and Schedule X can be sold only if a valid prescription is issued.

According to the petitioner, e-pharma companies have flouted Rules 65 and 97 of the act by selling prescription drugs and controlled substances without a valid prescription. Additionally, these players also offered bulk discounts to users, with the price difference going up to even 20%.

While the Madras HC did consider benefits to the user such as better pricing advantage and physical-mobility to the drug store, the court felt that some of the risks that needed to be addressed in the online sale of drugs included counterfeit drugs, lack of adequate information about the drug among buyers and he misuse of medical, financial and electronic information of patients.

While passing the order, the court also likened the prevailing legal imbroglio and regulatory ambiguity to the one prevailing in the horizontal e-commerce sector which included Flipkart, Amazon and Snapdeal and the several episodes of seller protests in the past.

“What cannot be permitted can be regulated. This seems to be the mantra of the Central and State Governments. But the rapid growth of e-commerce continues to present challenges to the State and Central Governments in the trade of online pharmacy. The protests made when Amazon, Flipkart and Snapdeal entered in general retail are being continued in retail medicine. The Central Government continues to lag in passing a specific legislation aimed at the online pharmacy industry,” the order stated.