In a relief to condom manufacturers, the Madras High Court on Thursday said that a condom is not a medicine and that the government cannot put a cap on the price of condoms.
The first bench of Chief Justice Sanjay Kishan Kaul and Justice T S Sivagnanam adopted a July 2015 order set by the Delhi High Court, reported The Times of India.
In July, the Delhi HC had set aside two orders of the National Pharmaceutical Pricing Authority (NPPA), the national drug price regulator, which had fixed maximum prices for condoms by including it in the Drug Price Control Order (DPCO).
The Delhi HC had then held that the Centre's decision to put a ceiling on condom prices was both "illegal" and "unsustainable".
Why condoms can't be put in the category of medicines
Pharma companies argued that at present condoms have been included in the national list of essential medicines. However, they said, that the government had not taken into consideration the different versions of condoms that were available and how pleasure condoms are different from basic/utility variety. "Fixation of a common ceiling price for both the categories under the impugned orders is violative of fundamental right to equality," TOI quotes the companies as saying.
The Delhi HC had held that though condoms fall in the list of essential medicines, there is no specified strength or dosages for the use for their formulations.
What the Delhi HC said in July while quashing the orders of the NPPA
"We are of the view that NPPA exceeded the powers conferred by DPCO-2013 while fixing the ceiling price for condoms. The language of para 4 (of DPCO 2013) is unambiguous and makes clear the legislative intent that the ceiling price can be fixed only for scheduled formulations of specified strengths and dosages as specified under the First Schedule," PTI quotes the court order.
"Therefore, according to us, the provisions of para 4 cannot be made applicable to condoms, the dosage and strength of which have admittedly not been specified under the First Schedule.
Consequently, fixation of the ceiling price for condoms under DPCO-2013 is impermissible under law. Accordingly, we declare that the orders of NPPA dated November 5, 2013, and July 10, 2014, are illegal and unsustainable. In the result, both the said orders are hereby set aside," it added.
The court had also said that condoms were not only used as contraceptives but also for prevention of sexually transmitted diseases. It said condoms are “rightly considered as Essential Medicines and are included in the National List of Essential Medicians to ensure affordable healthcare to a majority of population and also to improve accessibility of drugs for anti-HIV etc through special assistance scheme."