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TOP 5 HEALTH LAWS AND POLICY UPDATES

The new criminal code, Bharatiya Nyaya Sanhita (BNS) has replaced the Indian Penal Code (IPC) and introduced stricter penalties for medical negligence. Registered Medical Practitioners can now face up to two years in jail and fines for medical negligence. The new law will apply from July 1, 2024.
Source: bit.ly/3RXnx5t

The Central Pollution Control Board (CPCB) has extended the last date of filing of annual returns by the registered producers, importers, brand owners (PIBOs) and plastic waste processors for FY 2022-24 and FY 2023-24 respectively till September 2024. The earlier timeline to file the annual returns were June 30, 2024 and April 30, 2024 respectively.
Source: bit.ly/3XQtxAY

In an effort to decrease reliance on imports and to promote domestic production of medical devices, the Department of Pharmaceuticals (DoP) reportedly intends to launch a new program that will provide shared facilities for medical device parks or clusters that are formed with the exclusive financial assistance of the state governments.
Source: bit.ly/3xU6b2u

The Enforcement Directorate (ED) is investigating an alleged nationwide network of contraband dealers and has placed several pharmaceutical companies under scrutiny who are engaged in the production of drugs and opioids as a measure to prevent the creation of illicit distribution networks through fraudulent sale and supply bills.
Source: bit.ly/3VNzoEw

The United States Food and Drug Administration (USFDA) has published a draft guidance that removes the requirement of undertaking switching studies for applicants undertaking an approval for treating Biosimilars as interchangeable. The USFDA has now made switching studies optional for biosimilar approvals. Hence, persons applying for approval for Biosimilars may now use computer modelling based on the current acceptable analytical technologies to demonstrate the Biosimilars as interchangeable.
Source: bit.ly/4eQUudy

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TOP 5 HEALTH LAWS AND POLICY UPDATES

In order to procure equipment from foreign manufacturers, by floating a Global Tender Enquiry for any procurement up to INR 200 Crore, normally the concerned ministry is required to seek prior approval, and that too in exceptional circumstances. This requirement has now been exempted for certain medical devices upon request by the Ministry of Health and Family Welfare, as a result, all departments and ministries (where applicable) seeking procurement of the 161 Medical Devices listed in this Notification, shall be free to issue Global Tender Enquiries without prior approval.
Source: bit.ly/3zmmGVs

While currently Registered Medical Practitioners are encouraged to use the generic names of Drugs, they are not barred from prescribing branded Drugs, nor are they restricted to prescribe specific dosages. In this connection the Bangalore based association of Chemists and Druggists, has sought clarification regarding the obligations of registered Pharmacists, with respect to drug substitution and sale of non-standard quantity of Drugs to patients when the prescription dosage does not match the minimum pack size available from the manufacturer, along with raising concerns on the recent restriction on discount advertisement imposed by the Maharashtra Pharmacy Council.
Source: bit.ly/3LeL4Lj

In light of the recent recall of Indian manufactured spices in various countries, India’s Central food regulator, the Food Safety Standards Authority of India had conducted extensive testing of samples and has suspended licenses 111 small and medium sized exporters for not meeting standards despite the increased Minimum Residue Limits.
Source: bit.ly/4bnDQQ5
Source: bit.ly/3L4UXLP

The Rajasthan High Court has taken Suo Motu cognizance of the rising cases of food adulteration across the state, recognizing a need to plug the existing gaps in the Food Safety and Standard Act, 2006 (FSS Act, 2006). IN pursuance whereof, it passed orders to the Central and State Governments to more efficiently implement the FSS Act 2006, by identifying and targeting high-risk areas for sample collection, conducting tests with greater frequency, instituting state and district level committees for review of measures taken, and create general awareness among consumers.
Source: bit.ly/4bv1JF8

The International Medical Device Regulators Forum (IMDRF) has published guiding principles for Good Machine Learning Practice, for the use and implementation of AI and Machine Learning tools into medical devices. These guiding principles include: Leveraging multi-disciplinary expertise throughout the lifespan of the products, ensuring the training and test data-sets are separate, focusing on performance of human-AI collaborating team, and use of data-sets based on current best practices.
Source: bit.ly/4ePEmsQ

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TOP 5 HEALTH LAWS AND POLICY UPDATES

The Department of Pharmaceuticals (DoP) has extended the deadline for filing a self-declaration under the Uniform Code for Pharmaceutical Marketing Practices, 2024 (UCPMP) to July 31st, 2024. The prior date for filing the self-declaration was June 30th, 2024.
Source: bit.ly/4coX09h

The Central Drugs Standard Control Organization (CDSCO is considering making the international nomenclature of cosmetic ingredients (INCI) mandatory on all cosmetic product labels to improve transparency and identification. The unified INCI method will help customers understand product compositions while assisting dermatologists and regulators in monitoring component safety. The move is intended to avoid confusion, improve compliance, and increase the marketability of safe products.
Source: bit.ly/3L6jz6J

A Super Speciality Hospital and one of its doctors were ordered by the State Consumer Disputes Redressal Commission (SCDRC) to compensate its patients for medical negligence. The reason for the directive was that the specialist doctor had given his responsibility to a junior and neglected to attend to the patient, which led to an incorrect diagnosis and treatment, which constituted medical misconduct.
Source: bit.ly/3zrpKQn

The Central Drugs Standard Control Organization has ordered the closure of more than 36% of the 400 drug manufacturing facilities located throughout India after an increase in inspection following deaths associated with substandard cough syrups.
Source: bit.ly/4eKMs5Y

In an effort to regulate false and misleading nutritional claims and health claims made by e-commerce platforms, the Food Safety and Standards Authority of India (FSSAI) is planning to impose stricter controls on advertisement and sale of protein supplements and shakes in India.
Source: bit.ly/45KzjpF

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TOP 5 HEALTH LAWS AND POLICY UPDATES

The Central Drugs Standard Control Organization (CDSCO) may initiate the process of developing a guidance document that will outline methods for the safe disposal, collection, storage, and transportation of unused and expired drugs in accordance with various international recommendations. This follows a recent modification to Schedule M of the Drug Rules, which outlines standards for producers to store waste material properly and safely until disposal.
Source: bit.ly/4cEM07z

The Madras High Court’s division bench has overturned a 2018 single-judge order prohibiting online pharmacies from digital trade, providing a significant boost to the sector. This ruling is expected to influence ongoing cases, where the government may finalizing policies for regulating online drug sales.
Source: bit.ly/3RGccqb

In an instance of medical negligence, the National Consumer Dispute Redressal Commission ordered hospital officials to pay Rs. 200,000 in compensation for failing to show the patient the pacemaker as part of proper procedures and consultation, resulting in a deficiency in services.
Source: bit.ly/4brby74

The Study highlighting issues with self-regulation of UK pharma industry was released presenting patterns of company misconduct, recidivism, and complaint resolution delays within the European context.
Source: bit.ly/45MTZ03

The Ministry of Health and Family Welfare has suspended the mandatory linking of Central Government Health Services (CGHS) beneficiary ID with Ayushman Bharat Health Account (ABHA) ID, making it optional until further notice, due to practical issues and data privacy concerns.
Source: bit.ly/4buGLGM

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TOP 5 HEALTH LAWS AND POLICY UPDATES

India’s Central Pollution Control Board has issued final warning to all Producers, Importers, Brand Owners and Plastic Waste Processors, to complete Extended Producer Responsibility (EPR) registration on dedicated EPR portal latest by June 30, 2024, or face punishment.
Source: bit.ly/4cgRsxK

India’s Health Ministry has published Guidelines for Ethical Use of Leftover De-identified/ Anonymous Samples for commercial purposes.
Source: bit.ly/3RIc0XE

The Committee on Energy and Commerce in Congress of the United States of America has sought reply from US Food and Drugs Administration (US FDA) about institutional weaknesses in US FDA’s foreign inspection program over variations in inspection outcomes from India and China.
Source: bit.ly/3RF3xEH

India’s Karnataka High Court has formed a sub-committee to draft rules for establishing Intellectual Property Division (IPD) in Karnataka High Court. IPD benches are established with specialised judges to cater to Intellectual Property Disputes.
Source: bit.ly/4bmOVR8

India’s Kerala High Court, in a recent case, has framed guidelines for prosecuting guardian of a minor, or the owner of a vehicle driven by a minor, for offences involving vehicle driven by the minor.
Source: bit.ly/3RHALDn

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TOP 5 HEALTH LAWS AND POLICY UPDATES

The US Food and Drug Administration (FDA) has finalized guidance on circumstances that constitute delaying, denying, limiting, or refusing a drug or device inspection. The latest guidance extends the US FDA’s existing inspection standards for drug manufacturing companies to include device manufacturing companies as well.
Source: bit.ly/3XCVD2s

The Department of Pharmaceuticals (DoP) expanded its committee on drug and medical device pricing reform and added key public stakeholders to the committee as special invitees. This special invitees include patient advocacy groups, healthcare providers, and the medical community.
Source: bit.ly/3XDmJ9z

Indian government has formed a committee to assess the feasibility of allowing nutraceutical production within existing drug manufacturing facilities. This follows the recent update to Schedule M of Drugs Rules, 1945, which mandates separate production areas for nutraceuticals and pharmaceuticals.
Source: bit.ly/45JefzF

India’s Drugs Technical Advisory Board (DTAB) is evaluating a ban on chloramphenicol and nitrofuran antibiotics in animal feed due to misuse concerns in poultry and livestock.
Source: bit.ly/3zleFAo

New guidelines on the withdrawal of life support from terminally sick patients have been released by the Ministry of Health and Family Welfare (MOHFW) for healthcare providers and are to remain open for public comments for one month. The guidelines emphasize patient’s autonomy and their right to decline life-sustaining treatment (LST), even if doing so results in death.
Source: bit.ly/3RH4D2P

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TOP 5 HEALTH LAWS AND POLICY UPDATES

India’s Central Consumer Protection Regulator has issued draft Guidelines for Prevention and Regulation of Unsolicited and Unwarranted Business Communication, 2024 for public consultation and suggestions till 21st July, 2024
Source:  bit.ly/4cdCxV0

India’s Consumer Protection Regulator is in discussion with electronic manufacturers to change the warranty period of electronic appliances from purchase date to installation date to address the issue of shortfall in warranty period.
Source:  bit.ly/3zbR7xM

India’s COVID-19 manufacturer adds Indian Council of Medical Research as a co-owner in the patent for the vaccine.
Source:  bit.ly/4cd3esZ

According to a report by an investment banking firm, Indian market has 388 generic pharmaceutical brands with sales of over 100 crores, up from just 21 brands fifteen years ago.
Source:  bit.ly/3XymBrN

The Arbitration Bar of India and Indian Arbitration Forum have expressed their concerns over the Office Memorandum issued by Ministry of Finance providing guidelines for arbitration and mediation in Contracts of Domestic Public Procurement.
Source:  bit.ly/3XymDzV

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Mandatory undertaking before advertising food and health products and services on the internet, TV and print media in India

India’s Supreme Court has exercised its inherent constitutional powers and issued directions that, before an advertisement concerning food and health products or services is displayed/ aired/ printed/, the concerned advertiser / advertising agency will have to issue a self-declaration to the concerned electronic media / T.V. Channel / broadcaster / printer/ publisher/ electronic media stating that the “the advertisement does not make misleading claims and complies will all relevant regulatory guidelines”. A breach of these directions may result in contempt of the Supreme Court and be punishable under the Contempt of Courts Act, 1971. It may also result in breach of relevant sectoral laws, for example, in case of TV advertisements, it may result in breach of Cable Television Network Act, 1995. This has been clarified by Ministry of Information and Broadcasting in its circulars (1, 2).

The key thing to note is that the legal obligation has been cast on the owners and operators of electronic media (Google, Facebook, Instagram, YouTube etc), T.V. Channels, Radio Stations, Print and Digital News Websites etc. to ensure that the prescribed self-declaration is in place before the advertisement is accepted and published.

In order to ascertain the genuineness of the self-declaration, the Ministry of Information and Broadcasting and Press Council of India have respectively created dedicated portals where the self-declaration issued by advertisers/advertising agencies can be accessed and verified.

How to make self-declaration for advertisement over internet and print medium?

An advertiser who wishes to make any advertisement in relation to food or health products (health supplements, drugs, medical devices, dental products, nutraceuticals, food for special medical purposes, cosmetics, condoms etc.) or health services (telemedicine, physiotherapy, dental consultation etc.) over the internet or print medium should take the following steps:

Step 1 – Sign up on the dedicated portal: https://cbcindia.gov.in/cbc/advt-login

Step 2 – Fill the required details, and upload the Letter of Authorization in prescribed format

Step 3 – Generate Self-Declaration by providing mandatory details the following mandatory details:

  1. Product / Service Name
  2. Brief Description of Advertisement Content
  3. Title of Advertisement
  4. Nature of Advertisement (Internet Video, Internet Static, Print)

Step 4 – The Form of Self-Declaration will be automatically generated. It should be downloaded for signatures.

Step 5 – The signed Self-Declaration (which will be autogenerated) should be uploaded. Once uploaded, it should be directly accessible for download by Advertiser as well as general public.

How to make self-declaration for advertisement over TV and Radio.

An advertiser who wishes to make any advertisement in relation to food or health products (health supplements, drugs, medical devices, dental products, nutraceuticals, food for special medical purposes, cosmetics, condoms etc.) or health services (telemedicine, physiotherapy, dental consultation etc.) over the T.V. Channels or Radio Stations should take the following steps:

Step 1 – Sign up on the dedicated portal: bit.ly/3RZh3D5

Step 2 – Fill the required details, and upload the Letter of Authorization in prescribed format

Step 3 – Submit the following mandatory details:

  1. Product / Service Name
  2. Title of Advertisement
  3. Advertisement URL
  4. Date of First Release of Advertisement
  5. Nature of Advertisement (Internet Video, Internet Static, Print)

Step 4 – Upload the Letter of Authorization Form (template provided here: bit.ly/4bBk43E

Step 5- Upload Self-Declaration Certificate (template autogenerated)

Step 6- Submit the Form with details as described above, after uploading the Letter of Authorization and Self-Declaration Certificate.

Once submitted, it should be directly accessible for download by Advertiser as well as general public.

How to verify self-declaration made by advertisers

Owners and operators of electronic media, and print and digital publications, may visit the following link to verify if the self-declaration of advertiser is genuine or not: https://cbcindia.gov.in/cbc/advt-public-list

Owners and operators of T.V. Channels and Radio Stations may visit the following link to verify if the self-declaration of advertiser is genuine or not: bit.ly/4bBk43E

How to ensure that advertisement does not make misleading claims and complies with all relevant laws?

The Indian law surrounding misleading claims is scattered across various statutes, and has been shaped by Courts to keep pace with changing times. The key legislations which apply to food and health products and services are: Consumer Protection Act, 2019, The Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, The Food Safety and Standards Act, 2006, The Food Safety and Standards (Advertising and Claims) Regulations, 2018, The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954) and Rules, 1955, The Drugs and Cosmetics Act, 1940, and Drugs Rules, 1945, The Medical Devices Rules, 2017 and The Cosmetics Rules, 2020, The Legal Metrology Act, 2009 and Legal Metrology (Packaged Commodities) Rules, 2011.

Conclusion

Considering the Supreme Court order and Circulars of the Ministry of Information and Broadcasting, all advertisers, broadcasters and publishers (both print and digital, video and static medium) must now ensure compliance with the requirement of self-declaration and familiarize themselves with misleading advertisement laws.

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Madras High Court Greenlights Online Sale of Drugs and Medical Devices in India

online_sale_of_drug_and _medical_devices

Introduction

The Division Bench of Madras High Court in its recent order has confirmed that online pharmacies and online marketplaces of medicines and medical devices can continue to operate under existing law i.e. Drugs and Cosmetics Act, 1940 and Rules, 1945.

In doing so, the Court reversed the order passed by a Single Judge Bench of the same Court in 2018, which had effectively ordered e-pharmacies and e-marketplaces to stop business.

In this article, we will discuss the developments leading up to the recent Court order.

Background of 2018 court order banning online sale of medicines

On 17.12.2018, The Single Judge Bench of Madras High Court surprised e-pharmacies and e-marketplaces by ordering that till the Central Government did not publish rules for regulation of e-pharmacies, “the on-line traders are bound not to proceed with their on-line business in drugs and cosmetics.”

The rationale behind such an order was that without any proper framework regulating the online sale of drugs, there may arise chances of potential misuse of health and safety. The Court felt that amendments to the Drugs Rules, 1945 were necessary before allowing the online sale of drugs. The Court also directed the state government to notify the proposed Drugs and Cosmetics Amendment Rules, 2018 in the state Gazette, latest by 31.01.2019, for online sale of drugs within the state.

However, after passing the order, at the request of e-pharmacies and e-marketplaces, the Court decided to defer the implementation of the order until 20.12.2018 so that they could prefer an appeal against the order.

Ad-interim stay of 2018 order

The e-pharmacies and e-marketplaces preferred an appeal against the order of the Single Judge, on 02.01.2019 the Division Bench temporarily stayed the operation of the Single Judge Bench.

The Bench felt that a sudden ban would disrupt access to medication for those who relied on online pharmacies, particularly for home deliveries. However, the Division Bench agreed with the Single Judge Bench on the need for appropriate regulation for the online sale of drugs and directed the Central Government to finalize a framework for the regulation of online sale of drugs.

Reversal of 2018 order

The Division Bench has now passed a final order in the appeal. It has explicitly allowed the online sale of drugs, with a condition that any online sale of drugs must be routed through licensed druggists and chemists only.

In doing so, it has endorsed the lawfulness of operation of e-pharmacies and e-marketplaces, which are currently doing business through dealers and retailers who have a license for sale or distribution of drugs under Drugs Rules, 1945.

The Court decided to dispose of the appeal primarily on the grounds that the Delhi High Court is already hearing a matter with identical issues and the Central government is in the process of preparing a new policy for the online sale of drugs.

Order from Delhi High Court

The Delhi High Court is currently hearing a batch of writ petitions in which the petitioners have challenged the legality of the online sale of drugs and medical devices. Unlike the Madras High Court, the Delhi High Court has never held that the online sale of medicines is bad in law. The Delhi High Court has always maintained a position that the online sale of medicines and medical devices by licensed retailers is not unlawful. However, the Delhi High Court has time and again expressed concerns that the Central Government is yet to finalize a framework for the regulation of online sale of drugs and medical devices, despite the fact that the draft rules for the regulation of online sale of drugs were published in 2018 for comments and the Central Government has already received comments. The Court has now given the Central Government a last opportunity to put in place a policy framework for online drug sales by July 2024.

Conclusion

The order of the Madras High Court is welcome as it removes the ambiguity that existed in relation to the legality of the online sale of drugs and medical devices. Now, the fate of e-pharmacies and online marketplaces for medicines and medical devices is inextricably linked to the outcome of the petition filed in the Delhi High Court and the decision of the Central Government to introduce (or delay the introduction of) a framework for online sale of drugs and medical devices.

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TOP 5 HEALTH LAWS AND POLICY UPDATES

Dear Reader, we are happy to share the most interesting legal and policy updates concerning health industry that we read today. We hope you enjoy reading it.

Absence of essential medicines in a hospital constitutes medical negligence
India’s National Consumer Dispute Redressal Commission (NCDRC) has held that absence of an essential injectable medicine within the hospital, resulting in administration of an alternate injection to a patient who later died, constituted medical negligence. The court ordered the Hospital to pay Rs 25 Lakh as compensation.
Source: bit.ly/3UtaJ7u

Cost of conducting clinical trial of drug published in public domain for first time
Médecins sans frontières (MSF/doctors without borders), a non-governmental organization dedicated to delivering international medical aid, has published cost of conducting clinical trial of a new drug. As per MSF, no pharmaceutical company has published actual cost of conducting clinical trials, though such costs are frequently referenced to justify high drug prices.
Source: bit.ly/3wjvo5J

Indian standards for infant formula permit addition of sugar, therefore controversy surrounding added sugar in infant food unwarranted: Industry
A popular infant formula formulation company has clarified that the sugar content in their product is within the limits prescribed by India’s food regulator, Food Safety and Standards Authority of India (FSSAI). This clarification was issued after reports that the product being sold in low-and-middle income countries has high sugar content.
Source: bit.ly/3UsnaQH

Indian medical device regulator has allowed sale of sleep apnea devices post rectification of foam degradation issue
A major manufacturer of sleep apnea therapy devices has reportedly confirmed that its devices are sold in India without the foam degradation issue, which had previously caused it to recall its devices in India and around the world. In the US, the manufacturer has agreed to provide users of affected devices with new, updated, or equivalent devices with a renewed warranty or a refund.
Source: bit.ly/3WufUXh

Revised guidance for referencing of biological products by biosimilar drugs published for comments by US FDA
The US Food and Drugs Administration (USFDA) has released a revised guidance entitled “Promotional Labeling and Advertising Considerations for Prescription Biological Reference Products, Biosimilar Products, and Interchangeable Biosimilar Products.” The guidance addresses various questions that manufacturers, packers, distributors, and their representatives/firms may have when developing FDA-regulated promotional labeling and advertisements (promotional communications) for prescription reference products, biosimilar products, and interchangeable biosimilar products licensed under the Public Health Service Act (PHS Act).
Source: bit.ly/3wudFsl