Libertatem Magazine

Telemedicine and the Snapdeal Controversies.

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Isn’t it just a click away? Isn’t it cheap? Nevertheless, next time when you buy your medicines listed in Snapdeal, Flipkart or other such online marketplaces, think again. Recently, the Food and Drugs Department of Maharashtra have filed cases against Snapdeal for selling drugs without a permit or a prescription of the doctor.

The online marketplace sites have entered into real controversy with the Drugs Department of India for unauthorized sale of drugs in the country. Drug laws categorizes drugs into different kinds. Broadly speaking, there are the over-the-counter drugs which can be sold without a prescription and then there are the regulated drugs. The regulated drugs are listed in Schedule K,X,H etc., which can be sold only with prescription and after diligently following all the rules regarding its storage, transit etc. as provided in the Drugs and Cosmetics Act, 1940.

Therefore, the sellers and the manufacturer of the drugs who are involved in the actual sale or manufacture or in the exhibition, storage or offer for sale, are required to possess a valid license and have to adhere to all the rules as prescribed by the government. Unfortunately, or fortunately, in the case of these Online Marketplaces, the drug laws does not clarify as to whether the online intermediaries of a trade are liable or not. Only an agent or a seller of the drugs can be held liable for the offences under Drugs and Cosmetics Act, 1940.

Taking advantage of this loophole in the legislation, Snapdeal and similar websites did not bother to own a license on the pretext that they are not the sellers or manufacturers but just an intermediary that facilitates business between sellers and buyers in their e-platform. There has been no initiative taken by the e-platforms offered by this online marketplace that would confer them with a role of seller or agent in the online sales happening in their websites. Moreover, the disclaimer agreement that such websites enter with the merchants and the buyers (in the standard form of contract) absolves them from all the liabilities that may occur from the sale. In the end, their defense is that the drug laws are not applicable to them but only to the Merchants who list the products for sale.

Apparently, the online marketplaces like Snapdeal are actively taking the cover of being the intermediary for evading the application for drug laws. Such violations should evoke in the government a concern for the public safety and health. Therefore, the Drugs Department must quicken their efforts to refill the gaps and amend the Drugs and Cosmetics Act, 1940. But, where to restrain these online market places?

In the United States, the online pharmacies are licensed and recognized through the Ryan Haight Online Consumer Protection Act, 2008. The Act allows only the endorsed online pharmacies to sell the medicines online. Moreover, those controlled substances cannot be sold without a valid prescription and the drugs are to be kept according to the stipulated conditions and standards. Besides this, the Act lays down the policy for face-to-face medical examination of the patient before the online dispensing medicines. The Internet pharmacies are under an obligation to disclose their identity and trade details. Also, the Act prohibits the buying of drugs through online foreign sellers.

India is desperately in need of amending its archaic drug laws to incorporate the changing circumstances. It is suitable if the Drugs Department suggests a licensing mechanism for the online pharmacies like the way it is followed in the US.


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