With the advent of Technology in India and the emergence of online platforms to facilitate the livelihood of human lives, unfortunately, there are also emergence of more legal issues that form/get associated with it.
It becomes the utmost duty of the state to ensure that public interest is not prejudiced at any cost. E-pharmacies are the term that has gathered the attention of the policy makers and the central legislature in the past few weeks.
The reason for this sudden attention on the e-pharmacies is because of various legal implications including the public health that are involved in the functioning of these internet based platforms who function or run either with or without the license.
The possible legal issues involved and why the need to regulate those entities will be discussed in detail in this particular article.
What are these E-Pharmacies and how do they function?
Before looking into the status or the current legal regime that is existing to regulate the e-pharmacies in India, let us have a look at the functioning and the definition of these online pharmacies or e-pharmacy.
The term ‘e-pharmacy’ has been defined based on the functional part of these platforms which includes the selling of the medicines with the help of internet based technology or online platforms.
Some of the famous Online pharmacies that are in place when it relates to the selling of medicines through online mode includes Pharmeasy, Merapharmacy, Netmeds, Medicare etc. These entities are engaged in the delivery of medicines to its customers at the doorstep.
Current legal regime regulating Drugs in India:
Currently, there is no direct law or rules which regulates the online pharmacies.
Because of the absence of the regulation specific to the Online pharmacies, the legal regime that is present with regard to the ordinary pharmacies shall be made applicable to these entities in question.
The Drugs and Cosmetics Act of 1940 regulates the distribution, manufacturing, import and sale of drugs in India.
The question that remains to be answered is whether the E-Pharmacies currently in radar under the Central Government of India shall be brought within the purview of the Drugs and Cosmetics act 1940.
It is also important to note that there are necessary conditions that need to be complied by these pharmacies (including the one operating in online modes) to ensure that the public health is not prejudiced.
Let us have a quick look at these aspects/conditions applicable for the brick and mortar entity (ordinary pharmacies). Apart from the act and its rules, there was a code of regulations which was introduced in the year 2016 but the same was not considered as a law.
As per the current legislation, any entity who comes under the ambit of pharmacy shall be required to get a valid license for the manufacture, sale, distribution etc.
Even though the act of 1940 and its relevant rules of 1945 does not directly provide the applicability of these laws to the Online/e-pharmacies, until these entities are considered as the Pharmacy, they will be covered automatically.
Leaving the past aside, currently in 2022, these Online Pharmacies were brought under the radar of the Central Government which could be seen through the recent bill of 2022 that dealt with the regulation of Online mode of pharmaceutical industries.
The draft bill of 2022 tries to ensure that the online pharmacies are regulated whereby certain provision expresses the prohibition on the persons who deal with the selling, distributing and the importing of drugs through online mode without proper license or the permission.
The draft Bill seeks to regulate online pharmacies. It prohibits any person to sell, stock, or distribute any drug by online mode without a license or permission.
It allows the central government to make regulations and restrictions for online sale of drugs. Section 102 prohibits the online selling or manufacture of certain Ayurvedic, Siddha and Unani drugs and cosmetics also.
Section 83 of the draft allows the Central government to frame necessary rules for the purpose of issuing license and the procedure including the prohibition under chapter 4.
Legal Issues involved and the Way forward:
Violation of right to Privacy and procedure to safeguard Individual data:
Even though the customers of the platforms are benefited out of the functioning of them delivering at the doorstep, there are also heavy legal implications that are involved due to their functioning apart from the public health aspect.
Such an important issue as cited by this author is the issue of the informational privacy and the violation of the right to privacy of an individual.
The Indian Constitution ensures an individual of his/her right to privacy and such a person shall be entitled to protect the same.
The issue that can be identified is the misuse of the data of the patient whoever has used these online platforms and have provided their personal data.
When these data are being collected by these platforms, the question is where are these data being stored by the platforms and how will these data be used, especially the sensitive personal details relating to the health and given that there is central law for the regulation of the Personal data, there is much possibility for misuse of the same.
It is very important for the government to protect the personal information and to have the status of how these data are being collected and stored,the objective, consent part etc needs to be regulated. If it is not properly taken care off, it would result in violation of the right to privacy of each individual.
Public health and Safety:
Another major issue is the legitimacy of the service and the customer health when it comes to the current functioning of the e-pharmacies.
The object of the current drug regulation is to ensure that no individual performs the acts relating to the drugs without proper license and the permission.
With such importance placed on the public health, it is again utmost duty of the government to bring the legislation as fast as possible to avoid the public health being prejudiced
No specific law to address the rising concerns:
Having seen the above contentions relating to the e-pharmacies and their current status, which was already been discussed by the judiciary in the past years,
it is up to the legislature to look at the possible solution to either prohibit the selling through online platforms.
But, when such prohibition comes as an enactment, then the same may be constitutionally challenged if there is an entire ban which will affect the right to freedom of trade and profession.
Thus, the law should be an act which balances both the public interest and the right to freedom of trade and commerce of these entities.
