Advertising Project: Regulations on advertising in healthcare industry in India

By: Syed Azharuddin Sreekashini Sreedhar Anusha G. Prathyusha P. Vivek Shukla Pranav Srivastava Kartik V.

Acknowledgement
The satisfaction of the completion of this project is not complete without the mention of Prof Prashanth Aare who has been constantly guiding, mentoring and encouraging our efforts. We take this opportunity to express our gratitude to all those who helped us to carry out this project successfully and have been great source of inspiration. Valuable feedback from healthcare professionals: Dr. Rita Shukla, Dr. Shyam Sunder Toshniwal, Dr. M.V. Rao, Dr. L. Laxmi, Dr. Neha Shukla, Dr. Arbaab Qureshi, Dr. Mujahid Ali, Dr. Badreshwar Kote, Dr. Pradeep Mishra, Dr. Ashwin N., Dr. Pradeep, Dr. Adityavikram Kabra, Dr. Anshul Shukla and Dr. Ajay Jain were essential in compiling this report.

Abstract
Advertising is defined as: The non-personal communication of information usually paid for & usually persuasive in nature, about products (goods & services) or ideas by identified sponsor through various media. With the liberalization and globalization of the Indian economy, firms have been aggressively and vigorously promoting their products and services. In a comparative environment, every representation of a product or service is about what others are not. These practices raise questions about truthfulness and fairness of representation of products and services. Healthcare industry is specifically more sensitive to impact of advertising. Healthcare industry in India has been growing at a very brisk pace due to growing economy and medical tourism. Regulations and restrictions on the healthcare industry in India are studied through this project.

Introduction
Advertising communication is a mix of arts and facts subservient to ethical principles. In order to be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead the consumer. If it so happens, the credibility is lost. To enforce ethical advertising code, the various regulating authorities and laws are: Advertising Standard Council of India (ASCI) The Consumer Protection Act, 1986. Monopolies and Restrictive Trade Practices Act, 1969. Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. Drugs and Cosmetics Act, 1940. Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994. Cable Television Networks (Regulation) Act, 1995. Transplantation of Human Organs Act, 1994. Advertising Association of India (AAAI). Medical Council of India.

Advertising Standard Council of India (ASCI)

Advertising Standards Council of India is a self regulatory voluntary organization of the advertising industry. The Advertising Standards Council of India (ASCI), established in 1985, is committed to the cause of Self-Regulation in Advertising, ensuring the protection of the interests of consumers. The ASCI was formed with the support of all four sectors connected with Advertising, viz. Advertisers, Ad Agencies, Media (including Broadcasters and the Press) and others like PR Agencies, Market Research Companies etc. Its main objective is to promote responsible advertising thus enhancing the public's confidence in Advertising. ASCI is represented in all committees working on advertising content in every Ministry of the Government of India. ASCIs Code for SelfRegulation in Advertising is now part of ad code under Cable TV Acts Rules. Violation of ASCIs Code is now violation of Govt. rules. ASCIs membership of The European Advertising Standards Alliance (EASA) ensures that it gets valuable advice, learning and even influence at the international level. ASCI follows the following basic guidelines in order to achieve the acceptance of fair advertising practices in the interest of the consumer: To ensure the truthfulness and honesty of representations and claims made by advertisements and to safe guard against misleading advertising; To ensure that advertisement are not offensive to generally accepted standards of public decency;

 To safeguard against indiscriminate use of advertising for promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large; and To ensure that advertisements observe fairness in competition so that the consumers need to be informed on choices in the market places and canons of generally accepted competitive behaviour in business are both served.

Few Complaints filed with ASCI HLLs Clinic All Clear Dandruff shampoo claimed that it had ZPTO, the special ingredient in Clinic All Clear that stops dandruff. This claim was found to be untrue since ZPTO is a micro biocide, when in reality, dandruff is known to be caused by several other factors, besides, microbes. HLLs multi-crore research wing clearly overlooked this aspect. The advertisement has been withdrawn. Novartis India claimed that their disposable contact lenses ensure there is no protein build-up. This claim was found to be totally false. The truth is that build up is a natural biological phenomenon with all contact lenses. The ad was discontinued.

Monopolies and Restrictive Trade Practices Act, 1969

The MRTP Act, 1969 was enacted to prevent monopolies and restrictive trade practices in the economy. In 1984, it was amended to add a chapter on unfair trade practices. It created a body called the Director General of Investigation and Registration (DGIR). On a complaint, or on its own, the DGIR could investigate into a claim of a restrictive or unfair trade practice. It also created a judicial body called the MRTPC. The DGIR takes cases before the benches of the Commission. The Commission, on judging a practice to be an unfair trade practice, could order the offending party to cease and desist the practice. Section 36 A of the Act lists several actions to be an unfair trade practice. The provision which pertains to comparative representation is contained in Section 36 Section 36 A of the Act deals with 5 major Unfair Trade Practices: Any misleading, false, and wrong representation either in writing (i.e. in advertisements, warranty, guarantee etc.) or oral (at the time of sale) actual or intended, even if actual injury or loss is not caused to the consumer/buyer constitutes as unfair trade practices; Sales, where there is element of deception; All business promotion schemes announcing free gifts, contests, etc. where any element of deception is involved; Violation of laws existing for protection of consumers; Manipulating sales with a view to raising prices.

Cases under MRTP act

Colgate v/s Vicco Case In a television advertisement promoting Vicco tooth powder, another tin, of oval shape and without any label is shown. White powder coming out from the can was described as useless. Colgate claimed before the Commission that this was disparaging its product Colgate toothpowder. The Commission found that the shape and colour combination of the can shown in the television commercial resembled Colgates tooth powder can. In fact, there may even have been no intention of depicting the can to be of Colgate. But since the advertisement created an impression in the viewers that the can was of Colgate, it would be a case of disparagement.
Ujala v/s Robin Blue Case

Ujala whitener was advertised as insta violet concentrate, a post wash for white clothes. The advertisement disparaged neel. The makers of Robin Blue contended that this was a case of disparagement under section 36A(1)(x), as their product was also neel. The makers of Robin Blue claimed that they were the market leaders in India, with a market share of 56.4% in the blue powder category. Thus, disparagement of neel would definitely mean disparagement of their product.

Drug and Magic Remedies (Objectionable Advertisement) Act, 1954

This Act has been enacted to control the advertisements of drugs in certain cases and to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. In Hamdard Dawakhana vs. Union of India the Supreme Court was faced with the question as to whether the Drug and Magic Remedies Act, which put restrictions on the advertisements of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases, was valid as it curbed the freedom of speech and expression of a person by imposing restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form of speech and expression but every advertisement is not a matter dealing with the expression of ideas and hence advertisement of a commercial nature cannot fall within the concept of Article 19(1)(a). However, in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd, a three judge bench of the Supreme Court differed from the view expressed in the Dawakhana case and held that commercial advertisement was definitely a part of Article 19(1)(a) as it aimed at the dissemination of information regarding the product. The Court, however, made it clear that the government could regulate commercial advertisements, which are deceptive, unfair, misleading and untruthful.

Medical Council of India

The Medical Council of India (MCI) is a statutory body with the responsibility of establishing and maintaining high standards of medical education and recognition of medical qualifications in India. In order to protect and promote the health and safety of the public MCI ensures proper standards in the practice of medicine.

MCI has laid down the code of ethics on advertising in chapter 6: 6.1.1 Soliciting of patients directly or indirectly, by a physician, by a group of physicians or by institutions or organisations is unethical. A physician shall not make use of him / her (or his / her name) as subject of any form or manner of advertising or publicity through any mode either alone or in conjunction with others which is of such a character as to invite attention to him or to his professional position, skill, qualification, achievements, attainments, specialities, appointments, associations, affiliations or honours and/or of such character as would ordinarily result in his self aggrandizement. A physician shall not give to any person, whether for compensation or otherwise, any approval, recommendation, endorsement, certificate, report or statement with respect of any drug, medicine, nostrum remedy, surgical, or therapeutic article, apparatus or appliance or any commercial product or article with respect of any property, quality or use thereof or any test, demonstration or trial thereof, for use in connection with his name, signature, or photograph in any form or manner of advertising through any mode nor shall he boast of cases, operations, cures or remedies or permit the publication of report thereof through any mode. A medical practitioner is however permitted to make a formal announcement in press regarding the following:

1. 2. 3. 4. 5. 6. 7.

On starting practice. On change of type of practice. On changing address. On temporary absence from duty. On resumption of another practice. On succeeding to another practice. Public declaration of charges.

6.1.2 Printing of self photograph, or any such material of publicity in the letter head or on sign board of the consulting room or any such clinical establishment shall be regarded as acts of self advertisement and unethical conduct on the part of the physician. However, printing of sketches, diagrams, picture of human system shall not be treated as unethical. Although most advertisements by physicians and hospitals can be deemed as unethical according to MCIs code of ethics, yet MCI has not enforced or made any formal announcements regarding the common practices.

Findings:
While advertising by doctors and hospitals has been legal for quite some time, until recently, professional taboos discouraged the practice. Increasing economic pressures and changing cultural norms have led, however, to the demise of these informal proscriptions, and advertisements produced by hospitals and individual providers are now common. Yet arguments against healthcare-service advertising can be made on both ethical and economic grounds. While advocates of healthcare service advertising argue that the practice is harmless, often educational, and economically essential, several recent studies of healthcare service advertising reveal that medical centers and individual physicians often create advertisements that: 1. Manipulate patients ignorance and vulnerability; and 2. Stimulate demand for unproven or ineffective therapies. These advertising practices may lead patients not only to make poor decisions about disease treatment or health maintenance, they may also encourage unnecessary risks or foster unrealistic expectations. Further, the relatively unrestrained manner in which advertising for medical services is now practiced may increase the overall cost of healthcare.

Hospital Advertising and the Ethics of Patient Decision-Making

Those who support healthcare service advertising argue that on the whole decisions regarding the purchase of medical services are not significantly different than those related to any other kind of purchase. In their opinion, buying a car and buying a cholecystectomy arein economic terms at leastnot significantly different. They argue that while consumers of healthcarelike their car-purchasing brethren should be protected from false advertising they dont warrant protection from more subtle or manipulative appeals. But if the purchasing of medical services is unique among commercial transactions, then one could argue that consumers of healthcare are ethically entitled to special treatment. Is medicine fundamentally different? It is in both the milieu in which purchase decisions are made and the special nature of the patient-as-consumer situation. In the majority of circumstances, the consumer of healthcare services cant truly be informed about what he or she is buying. Assessing the efficacy and safety of medical treatments requires time, reflection, and often expertise that most patients dont have. Even if their sponsors intentions are honorable it is extremely difficult for medical service advertisements to convey the complex risks-and-benefits ratios that underlie intelligent medical decision-making. Complicating matters further, indicators of quality in medicine are extremely difficult to assess for the healthcare professionallet alone the layperson. As one author has put it, the sheer complexity of medicine, and the quality measures it has available, virtually guarantees that any statement about quality that can fit comfortably in a popular advertising format will be deceptive. Admittedly, medicine isnt the only area in which purchasers of goods or services have limited knowledge about the items they are buying.

Few peopleincluding this authoractually understand how computers or cars work. Medicine, however, is unique in that purchasers of medical services are not only relatively uninformed, but they are also uniquely vulnerable and dependent. More often than not, patients making decisions about medical services are under severe emotional and/or physical duress. They also depend on the skills, goodwill, and conscientiousness of healthcare providers. Yet while the vulnerable and dependent position of patients should encourage scrupulous avoidance of manipulative or emotional messages in medical service advertising, frequently just the opposite is true. In a study of advertisements produced for academic medical centers, Larson and colleagues found that more than 60% of the advertisements directly appealed to patients emotions. Further, the same study found that medical centers consistently promoted procedures or therapies with unproven benefits. Recent studies of healthcare service advertising reveal that medical centers and individual physicians often create advertisements that manipulate patients ignorance and vulnerability and stimulate demand for unproven or ineffective therapies

Hospital Advertising and Its Effect on the Cost of Healthcare Services

Hospitals, medical centers, and individual physicians currently spend millions of dollars annually advertising themselves to the public. The question is, What is the return on all this money, or (put another way) Is all this spending worth it? Certainly, the pervasive and increasing use of advertising by healthcare institutions indicates that the advertisers, at least, believe it is. But beyond the salutary effect advertising may have on a single institution, what is the cost of healthcare advertising for the healthcare system as a whole? When hospital advertising first became widespread, one of the most pervasive justifications for its use was that it was not advertising at all; it was simply education. Advertising, it was argued, was a way for hospitals to educate the public on the need or availability of vital healthcare services. Defenders reasoned that it was not a matter of stimulating demand but rather of increasing utilization. While admittedly there are instances in which healthcare service advertising has increased the demand for necessary and efficacious services, it is just as likely to promote expensive, unnecessary, or inefficacious ones; for example, the aggressive advertising of whole-body computed tomographic and magnetic resonance imaging screening tests (a procedure whose benefit has never been proven and that may expose patients to invasive and costly follow-up tests). Admittedly, the costs of these screening tests are borne by the individual consumer, but the expensive and often unnecessary followup testing they may provoke are covered by all of us. Evidence also indicates that hospital advertising may (in part) be responsible for the publics demand for costly and ineffectual treatments around the end of life, given the perception that higher technology and more advanced procedures are always better.

We shouldnt be surprised that the expansion of healthcare advertising has led to this situation. In essence, healthcare institutions that advertise without regard to the actual need for their products or services are simply behaving the same way more obviously commercial enterprises do. General Motors Corp. doesnt need to consider the actual transportation needs of the public when it introduces a new caronly whether or not the company can sell it. By the same token, without standards for healthcare advertising that explicitly address the effect these advertisements may have on demand for unnecessary services, promotion of these often-profitable services will only continue and grow.

The Costs of Competition

Supporters of healthcare advertising also suggest that advertising is good for the healthcare consumer. They cite marketing theorists contentions that by providing the public with free and useful information, advertising lowers search coststhe costs associated with finding a good or serviceand makes consumers more sensitive to product characteristics. The consequence, they contend, is that advertising not only ultimately lowers consumers cost, but it can also drive an increase in quality. These observations may have some merit with other sectors of the economy; they have little relevance in healthcare. First, aggressive and well-funded advertising can easily overwhelm the disincentive of purchasing low-quality goods or servicesparticularly in a field like healthcare, in which quality is so difficult to measure objectively. Further, in an area like healthcare, in which there are legal restrictions on price competition and consumers typically pay through a third-party intermediary, there is little if any room for advertising to promote lower costs. The fact is that healthcare advertising is more likely to be inflationary. When a hospital spends money to promote its new open-heart surgery program, it is most likely competing with other institutions for the same pool of patients. Because the supply of potential consumers of this service is limited, other institutions will be forced to spend more money promoting their own programs simply to maintain the market share they already have. As a result, advertising by one institution only increases pressure on advertising budgets across the boarda situation that inevitably leads to higher costs universally. Advocates of healthcare advertising also argue that it can be good for the community. They argue that advertising may increase revenue for a healthcare institution, thus enabling the institution to more vigorously

pursue its mission. Because the demand for legitimate healthcare services remains relatively fixed, however, the only growth healthcare advertising typically creates comes at the expense of a competitor. The consequence of this zero sum game becomes starkly apparent when one considers that hospitals and medical centers tend to compete only for the most well-insured or affluent patients. There is little healthcare advertising directed at conditions that disproportionately affect the poor or uninsured. Hospitals or medical centers with the best or most aggressive advertising campaigns tend to cherry-pick the highestpaying patients, leaving those patients who are less likely to pay concentrated at centers that are unable to compete. This concentration of poorly reimbursed or free care at institutions struggling to maintain financial viability can, over time, lead to lower quality and, if the institutions fail, decreased access for the most vulnerable.

Conclusion:
Based on the various findings and suggestions from healthcare experts it is clear that advertising in healthcare industry needs to be regulated. Patients should only be educated about the available facilities and unethical practices such as creating fear in the peoples minds should be penalized. With economic pressures and competition for healthcare expenditures growing, hospitals and individual physicians will continue to look to advertising healthcare services as a means to increase revenue. Yet patients are fundamentally different than other types of consumers. Given the typical patients combination of vulnerability and inequity of knowledge, it is clear that healthcare consumers deserve special protection from advertisements that play to emotions or ignorance. Additionally, because we as a society collectively foot the bill for healthcare costs, we must think about whether we can count on individual hospitals and healthcare providerswith their own narrow financial agendasto abstain from advertising that unnecessarily promotes increased expenditures and costs. More studies on the direct costs of healthcare service advertising need to be done, and more light needs to be shed on the effects of the millions of rupees advertisers spend annually. Some advertising of medical services may indeed be necessary, but it cannot be allowed to threaten informed patient decision-making or the economic viability of our healthcare system.