“The Union has to activate itself,” Justice Hima Kohli, who is heading the Supreme Court Bench hearing the case against Patanjali Ayurved and its leaders Acharya Balkrishna and Baba Ramdev, observed on April 23 in the context of the government not having taken any action against the company for publishing advertisements touting untested, pseudoscientific cures for COVID-19, diabetes, and other conditions. The Bench also took cognisance of a report that the baby formula Nestlé sells in India contains more sugar than its corresponding product in Europe, and expanded the Patanjali Ayurved matter’s remit to include all fast-moving consumer goods (FMCG) companies publishing misleading advertisements. India has been recording a surge in non-communicable diseases (NCDs) thanks to the easy availability of ultra-processed foods, together with sedentary lifestyles. Manufacturers have also been known to include some vitamins, say, in order to escape scrutiny, but their product is still ‘junk’. In the last month, the apex court has sought public apologies from Patanjali Ayurved et al. for advertising misleading claims even after the Court directed them to stop; the Bench chided the defendants for publishing a diminutive advertisement. There is some uncertainty now over whether the Court will accept the latest apology, but herein lies the rub.
The expectation that the Court will “activate” itself because the existing apparatus to regulate, report, and sanction misleading advertisements is complaints-led as well as dysfunctional is dangerous. The Court asked the Ministry of AYUSH why it did not act on the allegedly bad advertisements the Advertising Standards Council of India had flagged; the Council itself has no instruments by which it can force compliance. The Food Safety and Standards Authority of India has specified the permissible thresholds of ingredients in various food products yet is infamously reluctant to pull up errant manufacturers; it also remains understaffed, underequipped, and underfunded. The task of regularly calling out unscientific claims has thus fallen to variously informed members of civil society, from ill-qualified ‘influencers’ to licensed medical practitioners, yet they do not enjoy protection from retributive, expensive, and tedious legal action. As such, FMCG marketing should be subject to prompt enforcement and timely action. Its absence is responsible for the proliferation of unfalsifiable claims regarding nourishment as well as the growing disunion between India’s concern about NCDs and the foods available to the people. But the courts should only review legislation, not lead it. Quick, exemplary action against violators in the cases before it, and not overenthusiastic encroachment of legislative and executive power, is what is expected of the judiciary.
