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Nandita Vijay, Bengaluru October 04 , 2022
TMT Law Practice has underscored the need for making the Unified Code for Pharma Marketing Practices (UCPMP) mandatory and penalizing the violators. The Prevention of Corruption Act (PCA), 1988 should be amended to include commercial bribery between two private entities. Benefits provided to health care providers (HCPS) like cash, gifts, travel, speaker fees and sponsorships should be prohibited with criminal liability.

Following the move by the Union government to appoint a high-level Committee to examine the marketing practices of pharmaceutical companies, Sanjay Kumar, partner TMT Law Practice said that even the National Medical Commission (NMC), the erstwhile Medical Council of India (MCI) rules should have penal consequences for accepting any cash or kind by doctors whether in public or private service.  Payments with third-party consultants and agents should be prohibited with penal action, he added.
Further, inconsistent accounting processes should be brought within the ambit of anti-bribery laws. Lack of ownership for compliance procedures, including implementing recommended remedial actions should be a mandatory compliance for pharma companies and HCPs. Enactment of the US Sunshine Act to record and report legitimate payments is desired, Kumar told Pharmabiz in an email.
The impact of such incorrect practices impact the pharma sector. Anti-Bribery and Anti-Corruption (ABAC) risk receives significant attention from company’s senior management. Pharma companies invest significantly in drug development. The research and development needs scientific promotion for the medicines to enable doctors know about the latest advances. Such scientific promotion can be facilitated, inter alia, by seminars, symposia, and CME (continuing medical education).
The UCPMP has been in effect since January 1, 2015 and adhered by major pharmaceutical associations. The code allows filing complaints, inquiry by the Apex Committees of the Associations, penal actions, of which the company is a member. However, the code is not enforceable under any statute as it is voluntary, he said.
Further, a CBDT circular, sought to focus on the nexus between pharmaceutical companies and doctors. Hence, in order to examine the issue, for a legally enforceable mechanism to regulate marketing practices of pharmaceutical companies. The committee will submit its report in 90 days after It will examining the provisions to regulate pharmaceutical marketing practices and align interventions for implementation by the healthcare industry.

There is need for proper review as the UCPMP is a voluntary code and there is no legal sanction for violating this code. The existing Code of Ethics can be exploited by doctors to receive professional ‘fees’ for their ‘services’ rendered to pharmaceutical firms. The Panel will consider a legally enforceable mechanism for legally enforceable mechanisms on regulating marketing practices, with a study of global practices, said Kumar.
UCPMP is a voluntary code for pharma companies. However, being voluntary without any penal sanction, it appears to be a toothless tiger. Therefore it is time for India to have transparency and prevent kickbacks for doctors from a pharma company. So far, UCPMP has shown no success to check unethical marketing practices. Therefore, UCPMP must come under the current Drugs and Cosmetics Act. It should be amended from time to time by making unethical marketing practices illegal. This apart, a whistle-blower law with protection of informer and an award of compensation is being suggested, said Kumar.

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