Condom is not the Medicine and hence fixation of the ceiling price for condoms is impermissible in Law !!!

Condom is not the Medicine

“Condom is not the Medicine and hence fixation of the ceiling price for condoms is impermissible in Law !!!” – Hon’ble Madras High Court, adopted the decision of Hon’ble Delhi High Court !!

Now a days one cannot predict as to what kind of problems the Judiciary may be confronted with !!

The Delhi High Court was dealing with the core question of law as to Whether fixation of ceiling price under the provisions of the Drugs (Prices Control) Order (DPCO), 2013 for male contraceptives (condoms) is in conformity with the powers vested under the Essential Commodities Act, 1955 read with the Drugs and Cosmetics Act, 1940 in the case of RECKITT BENCKISER (INDIA) LTD. V/s. UNION OF INDIA AND ANR

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Condom is not the Medicine
The Petitioner contended that the prices of condoms were not controlled previously, however by order dated However, by order dated 05.11.2013, the National Pharmaceutical Pricing Authority, Department of
Pharmaceuticals, Ministry of Chemicals and Fertilizers, Government of India, fixed the ceiling price of the condoms at Rs.6.56/- per unit (one condom). It was argued on behalf of the Government that since condoms help to curb diseases, they would fall under the definition of ‘medicines’. and it further contended that if luxury condoms were removed from the DPCO, then the manufacturers would flood the market only with their expensive varieties of condoms and purposely make their lesser priced contraceptives scarce.

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Condom is not the Medicine
Hon’ble Delhi high Court in its 67 pages judgment dated 10th July, 2015 held that the action of NPPA is unsustainable in the eyes of law and its beyond the purview of powers conferred upon them by Law, moreover Condoms are not Medicine and its a barrier device and the dosage and strength of which have admittedly not been specified under the First Schedule of DPCO and thus its price cannot be controlled !!! The Madras High Court also relied upon the Delhi high Court judgment and observed in its judgment dated 31/08/2015 in the case of TTK Protective Devices Limited V/s. Union of India, that the action of NPPA is wrong and beyond the scope of law and it also rejected the argument advanced by the Government !!!

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Condom is not the Medicine
Article by Adv. Rohit Erande Pune.

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