Nagpur :-The Confederation of All India Traders (CAIT) has applauded the issuance of show cause notices to over 20 e-pharmacies including Amazon & Flipkart by the Drug Controller of India on 8th February giving a time of two days to reply. The show-cause notice alleges that the operations of these entities fall foul of the injunction of the Delhi High Court dated 12.12.2018 in the case of Dr. Zaheer Ahmed v. Union of India & Ors .In the above stated case, the Delhi High Court had held that “online sale of medicines without license” is injuncted. It is to be noted that the CAIT alongwith South Delhi Chemists Association and Delhi Drug Dealers Associations and other chemist associations have raised the issue strongly against e-pharmacies in the past and even have met Mansukh Mandaviya, Union Health Minister as back as in the Month of June, 22.
CAIT National President B.C.Bhartia & Secretary General Praveen Khandelwal demands the government to strictly enforce the law and the judgment of Delhi high court and ensure that no e-commerce company is selling medicine violating the Drug and Cosmetic Act. Government must take strict action against the e-commerce/e-pharma intermediaries/marketplace platforms including Amazon and Flipkart who are selling the medicine without obtaining the requisite license-added the trade leaders.
The present Drugs and Cosmetics Act and Rules do not in any way prohibit the use of newer technologies. It does not differentiate between online and offline sale of medicines (albeit with a license). As we have seen, the adoption of systems such as digital signatures, e-invoicing, track-and-track of medicines, bar-coding, etc. have been welcomed as they increase transparency in the system and also help regulators monitor this business. Therefore, even Delhi High court has not barred the sale of online medicine.
Bhartia & Khandelwal said that in the name of technological development, the marketplace platform entities such e-pharma intermediaries, social media intermediaries cannot be allowed to bypass the requirement of obtaining the license for sale, stock, distribute and exhibit as prescribed under the Drug and Cosmetic Act, 1940 and Drug Rules, 1945. However, we have seen that certain entities in the name of technological advancement are engaging in the online sale of drugs and simultaneously claiming protection as intermediaries under Section 79 of the IT Act, 2000. These entities exhibit medicines on their platforms and also engage in end-to-end drug trade in the name of a third-party licensee. Section 18(c) of the Act read with Rules 61, 64 and 65 requires a valid license for even exhibiting or offering for sale of drugs and cosmetics. This means that even intermediation of the online sale of medicines requires a license. Therefore, exhibition and offering for sale of these medicines on these e-pharma platforms without a license is a direct violation of the Act and Rules.
Bhartia & Khandelwal further said that several of these entities are foreign controlled and therefore, are ineligible to seek these retail licenses as this would be a violation of the extant FDI policy in Multi brand retail sector or inventory based e-commerce. Therefore, they are carrying out such operations without obtaining the license under the Drug and Cosmetic Act.Therefore while technological development should not be stopped, this should not mean that the licensing regime for the sale of medicines can completely be bypassed. The regulator should take strict action against entities that undertake the online sale of medicines and by adopting predatory pricing creating an uneven level playing field.
