REVIEW OF LITERATURE Literature on Unfair Trade Practices provides a conceptual and theoretical framework. These studies show a wide range of coverage in terms of various aspects of unfair trade practices. With a view to formulate the problem and to point out the importance of present study a brief review of the researches which have a direct or indirect bearing on the present study have been included in the review of literature. And they are as follows: Edward S. Rogers (1913)1 in his study describes that the designation “unfair competition” or “unfair trade” seems to have been adopted as a convenient description of offences against commercial morals not included in trade mark infringement. It was for many years assumed that unless a technical trade mark was violated, no relief could be had.

It was soon

demonstrated that the acceptance of any such rule opened the door to all manner of commercial knavery, and at an early day judges with consciences and a proper sense of sportsmanship began to decide cases in favour of the complainant which were in no sense trade mark cases, but where the defendant’s conduct involved precisely the same wrong the sale of one trader’s gods as those of another the result being accomplished by some ingenuous contrivance, the deceptive use of personal, geographical or descriptive names, imitated labels or form of package or in some of the infinity of ways which enable one trader to represent his goods as those of a competitor, whose reputation is better and whose trade he covets. Donald B. White (1939)2 states that the California Unfair Practices Act outlaws petition. Section 1 of the Act, in force since 1913, was prior to 1937 the typical anti-discrimination statute in force in many states which prohibits selling at different rates in force in many states which prohibits selling at different rates in different communities for the purpose of destroying competition of a regularly established dealer or of potential competitors. Section 7 in force since 1933, prohibits giving secret rebates or unearned discounts not extended to all purchasers where the result is to injure a competitor and destroy competition. Mario Rotondi, Derenberg (1958)3 drew the attention of American jurists to the European concept of unfair competition. The interest of this comparison is notable because it offers a marked example of differing approaches and methods respecting a subject of universal 88

application, which, in view of the very similar development of commercial and industrial activities in Europe and America, should rather give rise to uniform methods and results. In a study by (Preston, 1967)4 a computer-based measurement method was constructed in order to evaluate the misleading effects of advertising claims. Deceptive advertising was reviewed by comparing consumer responses to the questionable claims against responses to the presentation of no attribute information and true information. The authors found that expanded claims and inconspicuous claims lead to significantly higher levels of false beliefs (e.g., lack of side effects, low price, and speed of relief) than did the true or no information claims. Additionally, expanded claims lead to significantly higher levels of purchase intent compared to the no information condition, and expanded claims were more effective than inconspicuous qualifications in intensifying beliefs. The findings are consistent with a body of research, showing that consumers constantly misconstrue some types of advertising claims and that the implications drawn from questionable claims are treated as factual. (Jacoby, Jacob and Small, 1972) 5 A deceptive advertisement is defined as one that creates a false or incorrect belief about the product. Dillion (1973) 6 stresses that the cost of deceiving the public through advertisements is not financially beneficial for businesses. The author adds that companies who want to retain their customers should not display deceptive advertisements. Dillion explains that if the company is primarily focused on one-time sales, then only in this manner will deceptive ads provide value for business. Dyer and Kuehl (1974) 7 also tested the impact of message source and strength effects on the effectiveness of corrective advertisements. For example, they reported that certain types of advertising messages may harm the image of the advertiser: corrective advertising reduced positive attitudes toward the advertiser. The authors concluded that the behavioral and cognitive aspects of consumer attitude are affected by certain types of corrective advertising messages resulting in a reduction in the perceived reliability of the advertiser. (Aaker 1974) 8 was the first to formulate that advertisements can also mislead the consumer. According to him, deception is said to exist when "the output of the perceptual process (a) differs from the reality of the situation and (b) affects the buying behavior to the detriment of 89

the consumer". A number of definitions have since then been offered by various regulatory agencies, associations, and legal bodies. According to the Federal Trade Commission's (FTC) Deceptive Policy Statement, an ad is judged as "deceptive", if there is a representation, omission, act, or practice conducted by a corporation that will or is likely to mislead a consumer. (Armstrong and Russ, 1975) 9 argued that a deceptive advertisement is defined as one that creates a false or incorrect belief about the product. The fact that people believe a certain claim they infer from an advertisement does not necessarily mean they have been misled. (Gardner, 1975) 10 pointed out that some claims made in the advertisements can be verified by testing the results with the claims. If the results are not comparable with the claims, then the ad can be labeled as being deceptive. Adkinson and Mazis (1976) 11 described corrective advertising as a remedial action: when an advertisement is declared deceptive, the Federal Trade Commission may order that the sponsoring firm not only withdraw the ad but also remedy erroneous impressions that the allegedly false advertising may have created. This study examined whether corrective efforts restored customers’ perceptions of the advertised product. The experiment consisted of 83 college students who were tested on non-corrective germ-killing appeal advertisements and corrective germ-killing appeal advertisements. Analyses indicated that corrective ads did result in differential perceptions of the particular product advertised; thereby, suggesting that the corrective ads tested did appear to achieve desired results from the FTC’s perspective (Adkinson and Mazis, 1976). In contrast, past research has also shown that limited exposure to a company-source or an FTC-source corrective message may not be effective in achieving its intended objective of removing falsely based beliefs about a particular product. Russo (1976)

12

and his coworkers (Russo, Metcalf, and Stephens 1981) emphasized that

holding a false belief after being exposed to the ad does not imply that the advertisement caused the belief. Therefore they suggested comparing the results of the consumers exposed to the advertisement with the beliefs of the control group without the advertisement exposure or with a second experimental group, which is exposed to advertisements where the potentially misleading claim is omitted or corrected. Their work has also defined 90

misleadingness as a belief-fact discrepancy. The FTC altered its approach to unjust advertising, and the focus shifted from the message to the resulting belief of the consumer. (Preston, 1977) 13 Consumers are faced with a very large number of advertisements everyday in different media. This makes the job of the policy makers very difficult to judge the misleading nature of all such messages. The task can be made simpler if such questions are reserved only for critical cases; the majority of the work should concern itself not with the question whether an advertisement does mislead, but whether it has the capacity to mislead. Dover and Olson (1978) 14 in their research indicated that consumer beliefs and attitudes are impacted by deceptive ads. They concluded that consumers are more prone to have either a positive belief or greater purchase intent toward the product or service advertised when the ad is deceptive. The authors describe how the deception leads the consumer to believe the item is more valuable or unique than what it really is. This form of attraction may bring a greater market share to the business and assist in increasing sales. Determining whether an ad is misleading continues to prove difficult and controversial (Russo, Metcalf and Stephens, 1981) 15. Various researchers have made many attempts to define deceptive advertising. Many of the definitions that have appeared in the literature have one thing in common; they all state that for an advertisement to be deceptive it must assert or imply something that is "objectively false" (e.g. Shimp and Preston, 1981) 16. (Grunert and Dedler, 1985) 17 This is to say that if the consumer identifies the claim as false, it means that he does not believe it to be true and thus is not deceived by it. A false claim does not harm consumers until it is believed and a true claim can cause great harm if it generates a false belief. (Burke DeSarbo, Oliver, and Robertson, 1988)

18

the use of deception in advertising is

widespread. Deceptive advertising has been frequently used by firms. Presence of deception and its effect on the behavior of consumers has been the area of interest among advertisers and marketers. There have been cases of deceptive advertising within the industry and thus this subject has been of great concern for consumers and policy makers.

91

In the Case of Nemi Pharma Pvt. Ltd. (1989)19 mentioned that the price-list effective from Aug, 1988 does not give liberty to the distributors that they can sell your products at the prices lower than the prices as mentioned in the price list. This trade practice of resale price maintenance is a restrictive trade practices within the meaning of section 33 (1) (f) of MRTP Act. Cydney Louth, Edwina Rogers (1990)20 described how we can stop unfair trade practices it includes articles on how to file an antidumping petition and glossary of antidumping terms. Firstly import Administration’s office of investigations reviews the petition and determines within 2 days whether or not any investigation should be initiated. If the petition is accepted, the case moves on to the International trade commission.

Then International trade

commission announces its ‘injury’ determination within 45 days of the date of petition was filed. If International trade commission found no injury the petition was terminated. Robert E.. Litan, Richard Bdtuck (1992)21 states that unfair trade practices itself invites condemnation More than 90 signatories to the General Agreement on Tariffs and Practice allow member countries to impose import duties to counter unfair pricing (Dumping) by foreign trading partners. The subsidies code to the GATT, signed in 1979 authorized similar offsetting duties against unfairly subsidized imports. On these two agreements the United States has built a major administrative program to root out dumping and unfair subsidization and apply remedial penalties. Davis (1994)

22

reviewed the relative influence of four factors on the decision-making

process of advertising experts in regard to advertising content and policy. The four factors analyzed were: (1) ethics, (2) legal considerations, (3) business considerations, and (4) anticipated approval of management/peers. The author found that the legal considerations factor (i.e., laws and regulations), not ethics, was the most influential factor for most advertising managers. Apparently, advertisers weigh ethical decisions (what is considered to be in good interest for the public and the absolute “rightness” of decisions) as less important than legal considerations when it comes to advertising content and policy. Davis argues that if ethics were to be the number one consideration when creating an ad, the incidence of deceptive advertising practices would be reduced. The author identified elements for increasing ethical considerations in professional decision-making in order to reduce the high 92

incidence of deception in advertising. As a remedy for increasing deceptive practices, Davis (1994) also recommends that the FTC issue detailed, formal standards for identifying deception in advertising. The underlying rationale for these actions reflects the belief that increasing the influence of ethics in the decision-making process is one means for increasing the likelihood of an individual selecting a socially responsible course of action such as rejecting deceptive advertising claims. (Attas, 1999)

23

When consumers believe an advertisement to be true when it is actually

false, consumers may be "harmed". Individuals prefer their beliefs to be true, and if a consumer is misled by an advertisement, then the consumer may be tempted to buy the advertised product. More consumers are likely to buy the advertised product as a result of the ad claim because they believe it to be true. David J Federbush, (1999)24 states that unfair acts are practices now are clearly actionable under FDUTPA C Florida’s Deceptive and unfair Trade practices Act, even if they have no deceptive component Individual and commercial plaintiffs who can meet their burden of proof have a powerful weapon to use against a potentially huge range of commercial wrongdoing. At the same time, unmeritorious claims should be discouraged by exposure to prevailing defendants reasonable attorneys fees and casts and by the provision permitting the court to require private plaintiffs to post bonds to cover damages which might be incurred by defendants in cases that appear to be frivolous, merit less or harassing. Craig, Scot and Netemeyer (2000) 25 suggest that false claims which do affect the consumers, can lead to government intervention due to the possibility that the consumers can be negatively impacted. Japan Weekly Monitor (2002)26 stats that the government is moving to increase regulation of Japan’s food industry after a recent string of false labeling scandals and the nation’s first reported case of mad cow disease rocked consumer faith and sparked calls for harsher penalties for food companies guilty of unfair trade practices. Jennifer warner(2002)27 mentioned that a new government report shows misleading drug advertisement persist due to delay in the U.S. food and drug administration (FDA) review process and repeated violations by some pharmaceutical companies. Under the current 93

government regulation, pharmaceutical companies are required to submit all drug ads to the FDA when they are first released to the public through print or broadcast media. If the FDA finds the advertisement to be misleading or otherwise fails to fairy represent both the benefit and risks of the advertised drug, it may issue a regulatory letter requesting that the company either withdraw or revise the ad or a warning letter for more serious violations. John Mc Claughry (2003)28 explains that our pharmaceutical industry has made spectacular advances in improving our health. Millions of Americans , and more millions around the world, who only a generation ago would have been crippled, debilitated and miserable, are living active, quality lives thanks to the miracles produced in the labs of America’s Pharmaceutical Companies. But he is also concerned about the ‘leading cause of rising health care costs.” He said that modern drugs make possible earlier discharge from hospitals and nursuing homes but the cost is very much high. Conshohocken (2003)29 states in his article that VIASYS Healthcare Inc’s (NYSE:VAS) Respiratory Technologies Group announced that the united states District court in Trenton, New jersey has set a trial date of January 27, 2004, to hear its counterclaims against INO Therapeutics, Inc. (New Jersey) and AGA AB (Sweden) for antitrust and unfair trade practices. VIASYS subsidiary Sensor Medics, its partner pulmonox Medical Inc. (Canada), filed these claims, contending that INO Therapeutics and AGA had wrongfully impeded research into new and expanded uses of pharmaceutical gaseous nitric oxide.

INO

Therapeutics and AGA are subsidiaries of Linde AG (Germany). In December 2002. The district court issued a ruling that granted Sensor Medics and pulmonox’s request for a summary dismissal of patent infringement claims brought by INO Therapeutics. AGA and The General Hospital Corp. (Massachusetts).

These parties filed suit and sought an

injunction that would prohibited Sensor Medics and pulmonox from supplying ViaNOx™ gaseous nitric oxide and the AeroNOx ® delivery system for clinical investigations leading to FDA approval for new applications of this agent.

The court rejected both their

infringement suit and the injunction request. In an order entered on August 19, 2003, the court set the trial date on Sensor Medics and pulmonox’s antitrust and unfair trade practices counterclaims.

94

Janet (2003)

30

found that drug makers have readily admitted that they routinely pay

insurance companies to increase the use of their products and to be added to the recommended list of drugs. They admit that they give rewards to both pharmacists and doctors for switching patients from one brand of medication to a rival. Finally they admit that they provide all sorts of gifts and gratuities to doctors, ranging from financial aid to educational programs to bags and writing pads, n the hopes that they will encourage doctors to remember and perhaps prescribe their band of drugs. In October of 2002, the department of Health an Human Services stated that many gifts and gratuities are suspicious because they looked like illegal kickbacks. It is a common industry practice for drug companies to give gifts to those who prescribe more of their drugs. He also added the argument from American Medical Association that drug companies should be allowed to give doctors pens, notepads and other items of “nominal value” that have ‘no correlation to any service provided by the physician to the pharmaceutical company. According to the American Medical Association such items are “harmless”. An electronic poll was conducted on atheism.about.com about should doctors be allowed to take kickbacks and gifts from pharmaceutical companies.

It was found that 3% of

respondents said that yes, it’s none of our business what sort of relationship a doctor has with the company whose medication is being prescribed. 5% said yes, but only if patients are informed about the relationship between the doctor and the drug company. 89% replies as no, doctors shouldn’t have any financial incentive to prescribe one drug over another. Only the best interests of the patients should matter, not the financial interests of the doctors31. Should doctors be allowed to take kickbacks and gifts from pharmaceutical companies?

95

No of Respondents

%

Yes, it’s none of our business what sort of relationship a doctor has with the company whose medication is being prescribed.

5

3

yes, but only if patients are informed about the relationship between the doctor and the drug company

8

5

no, doctors shouldn’t have any financial incentive to prescribe one drug over another.

132

89

I don’t Know

3

2

I don’t care

0

0

Total votes: 148 An electronic poll was conducted on atheism.about.com about Do you think that gifts from pharmaceutical companies may influence what doctors prescribe?

88% said yes it’s

unethical and should stop. And result of the poll was shown as under32: Do you think that gifts from pharmaceutical companies may influence what doctors prescribe? No of Respondents Yes, but such influence isn’t unethical yes its unethical and should stop No, not at all I don’t know/don’t care Total votes: 991

% 76 874 28 13

7 88 2 1

Financial Update (2004)33 defines how can a bank determine whether its actions or practices are unfair or deceptive? In response to questions raised by state-chartered banks, the federal Reserve Board of Governors (FRB) and the federal Deposit Insurance Corp. (FDIC) recently provided guidance on this issue. What is unfair or deceptive? “Unfair or deceptive acts or

96

practices in or affecting commerce” are illegal under section 5 of the federal Trade Commission (FTC) Act, which applies to all persons engaged in commerce, including banks. Business wire, (2004)34 explains that the Big Apple filed a complaint on Aug. 4 in the U.S. District Court for the southern District of New York against 44 pharmaceutical companies and their subsidiaries. The complaint alleges that the defendant engaged in fraudulent and deceptive conduct resulting in millions of dollars of overcharges to the city’s Medicaid budget. New York City alleges violations of federal and state Medicaid law, Medicaid and common law fraud, breach of contract, unfair and deceptive trade practices, and unjust enrichment. The complaint alleges two fraudulent and deceptive schemes: first, that the defendants inflated the average wholesale prices, which are used to calculate Medicaid reimbursements for prescription drugs; and second, that by reporting false, inflated, and misleading pricing information, they underpaid the Medicaid rebates that the federal Medicaid statute requires. Many of the claims alleged in the complaint have been previously substantiated by numerous federal investigators, including congressional investigations and by federal criminal and civil actions against some of the defendants. Lofgren, Hans (2005)35 describes that India’s pharmaceutical industry, the world’s fourth largest by volume, is a major exporter of relatively cheap generic medicines to both developed and developing countries. In 2001, the Mumbai-based firm Cipla commenced exports of a generic version of a triple-combination drug for the treatment of HIV/AIDS to Africa for around US $ 350 (for a one – year course). The price charged by the multinational drug companies was around US $ 12,000. The response of the ‘big pharma’ companies, supported by the US government, was to attack the Indian firms and their customers, notably the south African government, in the courts and the international institutions. This caused public outrange that ultimately forced a withdrawal of the legal action against South Africa, and the prices for HIV/AIDS drugs charged by the multinationals were also lowered. Still, the need for HIV/AIDS drugs in developing countries is far from being met, and US resistance to generics remains a key factor hampering supply. Large- scale Indian exports of generic medicines were made possible by the absence of product patents for drugs, which were abolished (along with patents for agro-chemical products) in early 1970s. Process patents were recognised but firms were free to develop alternative processes to manufacture a 97

wide range of bulk and finished drugs at low cost.

There were also high tariffs and

restrictions on the importation of ready-made formulations, and transnational drug companies were required to reduce their stake in their Indian subsidiaries.

The Indira Gandhi

Government of that period subscribed ( in some respects at least) to Nehru’s vision of autonomous industrialization, and sought to encourage the development of an indigenous pharmaceutical industry and to provide access to low- cost medicines. All in all, until recently, India was an unattractive market for the multinationals and many abandoned the country altogether. S Sothi Rachagn (2005) 36 focuses on the situation of the Malaysian consumer, but raises a number of issues likely to be of significance in many other developing countries. The paper highlights the absence of appropriate protection laws, the lack of enforcement of existing laws, and the failure to provide suitable redress mechanisms for the resolution of consumer grievances. In each case, examples are given of objectionable practices and inadequacies of present laws and institutional arrangements, in the final part of the paper, the author suggests some reasons why the consumer movements in the developing countries have failed to achieve a greater degree of success. Ladley (2005) 37 too found that deceptive advertising may bring a greater market share to the business and assist in increasing sales. Corporations across numerous industries have found marketing as a resource towards increased profit potential and have grown "hungry" for higher profits, thus motivating increased use of unscrupulous marketing tactics. Ketek Antibiotic Alert (2006) 38, this report states that Bronchitis Drug Ketek may cause liver Failure Death. On June 29, 2006, the U.S. Food and drug administration ordered the makers of Ketek to put a stronger warning on the drug labels because of its link to serious liver injury, liver failure and death. David Ziemer (2006)39 states that a standard Commercial General Liability (CLG) policy does not exclude coverage for statutory misrepresentation, the Wisconsin court of Appeals held on Aug. 23. The decision effectively renders standard exclusions for the insured’s misrepresentations a nullity. In 1995, Robert Stuart and his wife, Lin Farquhar-Stuart, contacted Ronald Weisflog, president of weisflog’s Showroom Gallery, Inc., a corporation in 98

the business of building and remodeling homes, about making additions to their home, including a hot tub/spa room. Weisflog represented to the Stuarts that they were purchasing quality architectural services and that the specifications in the drawings would comply with all applicable building codes. In fact, nobody at Weisflog was a licensed architect and Weisflog was not familiar with parts of the local building code.

Relying on the

representations, the Stuarts entered into a contact for the additions, and Weisflog constructed them. In 2001, the Stuarts noticed damage in the spa room. An inspector identified several building code violations in the spa room and rest of the project. According to the inspector, the damage was so extensive that it made moral sense to demolish the spa room and rebuild than to repair it. Carol Eustice(2006) 40 explains different marketing schemes. He stated that newest marketing scheme involves direct-to-consumer advertising. The concepts embed the name of the mind of a patient so the patient will carry it into the doctor’s office, often with a request to try it. In the past three years, ads for drugs have appeared on television and in magazines like never seen before. Doctors and insurance companies view this as one of the least favorable marketing tactics, believing that it lures patients to high price drugs when other available drugs are often available drugs are often cheaper and possibly as effective. He also explain that how we can take our self out from this game. These methods are mentioned below: a) Ask your doctor to be aware of cost and effectiveness when choosing a drug to prescribe. b) Ask both your doctor and pharmacist about the availability of a generic substitution for the drug prescribed. c) Inquire about drugs seen in ads but don’t insist on a prescription for the drug. Encourage and allow your doctor to use his best judgment. Estrada (2006)

41

on the impact of deceptive advertising within the entertainment industry

examined whether companies generate greater sales from deceptive advertisements as opposed to not deceiving the public. Carol & Richard Eustic, (2006)42 mentioned that in an article in a article in U.S. News & world report (19/02/2001) took aim at the impact pharmaceutical sales representatives have 99

on the prescribing habits of physicians. In this article emphasis was given on the question that are the decisions doctor’s make about which drugs to prescribe based on knowledge, expertise, you need are influenced by drug representatives. It was mentioned that in America prescription drugs are a $ 120 billion/ year business, with the potential to double by 2004. Aggressive campaigns by drug companies for the purpose of winning over doctors and patients cost. Hedlund Julie and Alkinson, Robert D. (2007) 43 pointing out the unfair trade practices in the innovation Economy (US) many nations have turned to an cashier and faster path to winning the global competition for IT leader ship: erecting a whole host of unfair and protectionist policies focused on systematically disadvantaging foreign, including US,. Companies in global companies. These policies include raising the relative price of foreign IT products and services by applying tariffs, taxes, subsidies and excessive antitrust enforcement; acquiring foreign IT product and services without paying for them through digital theft and forcing US. Companies to give up their intellectual property etc. These aggressive and unfair foreign IT trade policies lead to fewer high paying IT jobs in US. And threaten our global IT leadership position. But these policies don’t just hurt the United States, they hurt the global economy. Financial Web44, The independent financial portal describes some of the practices that we should wary of from insurance agent or companies. He said that know what illegal knows your sights. He defined misrepresentation, Misleading advertisement, twisting, churning, discriminate etc. He states that it is a violation of the unfair Trade practices Act for any person or organization to commit or be involved in any act of boycott coercion or intimidation that’s intended to create a monopoly or restrict fair trade in transaction of insurance. FDA- Blog (2007)45 discuss current events in the Pharmaceutical industry while exposing the truth behind the FDA’s involvement with Big ph RMA (pharma). A Massachusetts court has ruled that 3 of Americas largest pharmaceutical companies Forbes.com reports that Astra Zeneca, Schering, Bristol-Myers Squib violated general laws by inflating the average wholesale prices that they reported for certain drugs, including chemotherapies have engaged in unfair and deceptive trade practices. According to Steve Berman, the attorney who led the suit. Massachusetts ruling was test case and trials are planned for the rest of the states. This 100

is just the tip of the iceberg of problems for AstraZeneca and pfizer. Bloomberg.com said, “U.S. District judge Patti Saris found that AstraZeneca overcharged for Zoladex, a treatment ofr prostate cancer and levied damages of nearly $ 4.5 million for one group of plaintiffs. She said the ocurt needed additional information to figure damages for the other. Saries ruled that Bristol-Myers Squibb overcharged for itscancer drugs Taxol, Vepesid, Cytoxan, Blenoxane and Rubex. She levied damages of $ 183.454 for one group of plaintiffs and is collecting infromation to figure the other group’s damages.” Although the judge agreed that johnson & johnsons conduct was at times troubling, apparently did not cross the ine of ‘egregious misconduct’ and was cleared of the charges. Berman said, ‘We are also grateful that she found the biggest victims were the patients who had to pay these outrageous prices out of pocket as a result of the defendant’s wrongful conduct.” Attorneys Trial group (2008)46 defines the pharmaceutical malpractices or pharmaceutical negligence as a drug company caused injury or death to a consumer by failing to act within the applicable standard of acre. It also mentions the list of most common drugs that can cause serious injusy leading to pharmaceutical negligence. In this list accutance, Baycol, Enbrel, Meridia, Oxycontin, Paxil, Prempro, Rezuline, Serzone, Thimerosal, vioxx and Ayprexa are included. Janet, Jenner & Suggs (2008)47, under their article alerts the user of Digitek (digoxin tablets). This tablet is used by very ill patients with congestive heart failure of abnormal heart rhythms. They defines the problem that this pills were apparently made for an unknown period of time with a potentially fatal defect. Some tablets may have twice as thick as they were supposed to be. That means they could contain twice the approved level of digitalis, the active ingredient in Digitek. These double- strength pills can lead to Digitalis toxicity. Digitalis toxicity can cause a heart attack, stroke, kidney failure, nausea, vomiting, dizziness, low blood pressure and an unstable or slow heart rate. Judith Kafmann (2008) 48 explains that many claims that more people do not have access to life – saving drugs because of high prices and that patent rights both increase prices and stand in the way of getting claims are false. He said that drugs that cure AIDS and many other diseases are available precisely because of patent protection. Patent protections encourage research and development by offering the possibility that a pharmaceutical company’s 101

investment will be repaid, a powerful incentive to companies to invest millions and millions of dollars into risky research and development of these medications. Carol Richard Eustice (2008)

49

mentions that drug safety requires patient involvement. A

patient should take certain measures to ensure drug safety. Patents need to fully understand their prescription after discussing it with their doctor and pharmacist. Gardiner Harris (2009)50, mentioned that Fedral Health Officials and prosecutors, frustrated that they have been unable to stop illegal kickbacks to doctors from drug and device companies, are investigating doctors who take money for using these products. Alos as part of plea bargains, Fedral health officials are forcing a growing number of drug and device makers t post publicly all payments made to doctors who serve as consultants or speakers. Manufacturers have repeatedly used consulting payments in illegal schemes to persuade doctors to prescribe drugs or devices in inappropriate and unapproved ways according to Federal Charges. Nagar, Komal (2009)

51

find that advertisements do not necessarily prove to be more

successful in affecting recall of false claims. The relevance o f the paper lies in the attempt to reveal the serious nature of deception and in sensitizing advertisers towards raising the moral recognition level in advertising and towards alerting them to check the overtones of unethical advertising. The findings of the research are a clear indication to the advertisers that the use of deception in advertisements does not lead to a greater recall of false claims. The results of the study will help the advertisers to reflect on the need to avoid the use of deception in advertising. Trisha Torrey (2009) 52 explains the five tips to help patients to reduce drug costs1.

Partner with your doctor

2.

Partner with your health insurance

3.

Compare prices and purchase in Quantity

4.

Look into prescription assistance programs

5.

Use a drug Discount card 102

K Ravindra (2010) 53 stated in his article that there are too many products in the market and competition is tough for marketers to attract customers, they give a false picture of their products which is far away from reality. The study shows a balanced opinion with more or equal number of people agreeing and disagreeing on this issue. There is a strong agreement on the issue regarding ad makers social responsibility. Majority of the respondents agree that as-makers should act with utmost responsibility while promoting the products through mass media. It can be said that advertising professionals should always try to eliminate its social harmful aspects and observe high ethical standards in regard to truthfulness, human dignity and social responsibility. Tiwari AK, Colaco Hazel Ruth (2010) 54 explains the level of deception in the ads created by the advertisers is a perennial subject of debate. Advertisements make tall claims, which are not fulfilled many of the times. Advertising has become a marketing force, which helps in mass selling and distribution. In fact, advertising has become an industry in itself. It is also the object of much criticism some justified, some not. It has been claimed that much of the advertising content is false, deceptive and misleading and that it conceals essential information and omits limitations. Huge Settlement.com55 explains that pharmaceutical malpractice lawsuits are one of the fastest growing types of personal injury lawsuits that there is pharmaceutical malpractice is very common and the foundation for these law suits in prescribed medication. In case where a properly prescribed medication cause serious side effect or illness, the drug manufacturer would be liable. In the matter of Shrishama Fine Chemicals and Pharmaceutical (Karnataka) Ltd56 The respondent had advertised that ‘Asprin’ has many benefits, especially in respect of heart ailments and that it should be used. It was considered as a false representation made by the company. In Burroughs Wellcome (India) Ltd.57 The respondent who manufactured ‘Redake paracetamol Tablets’ for clearing headaches advertised its product ‘ safest way to clear headaches’ , that the same did not have the side effects like Aspirin which caused ‘erosive gastritis with occult and overt gastro-imntestinal bleedings and gastric ulcer. 103

In Boots Co. (India) Ltd58. The respondent has not mentioned the warning in the advertisement that ‘Coldarin’ should not be used for children as it contains ‘Asprin’ which is not good for the health of children. As it contains ‘Asprin’ which is not good for the health of the children. In Zandu Pharmaceutical works Ltd.59 The respondent had indicated on the packet of medicine ‘Trishum’ and not in the advertisement that the medicine was to be taken under the advice of a physician. The respondent buy not giving this caution in the advertisement has misrepresentation to the consumer about the manner in which the medicine was to be used. In Hamdard (Wakf) Laboratories60 the respondent in the advertisement claimed many uses for its tonic ‘Safi’. It inter alia claimed that the tonic was effective in eczema, acne, drug eruption etc. preliminary investigation report conducted by the Research wing of the commission concluded by the respondent company has not made false claims regarding the efficiency and usefulness of ‘Safi’ as most of claims are based on a Research Project. Accordingly, the Commission accepted the report of the Research wing and terminated the enquiry proceedings. Medical Marketing Media (2003) 61 mentioned a misleading claim. A territory manager from Actelion pharmaceuticals made false and/or misleading oral representations to a hospital staff member about the use of Tracleer (bosentan) in congestive heart failure, charged the food and Drug Administration’s Division of Drug Marketing, Advertising and Communication (DDMAC) in a recent letter.

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Edward S. Rogers, “Predatory Price cutting as unfair trade:, Harvard Law Review vol-27, Dec 1913

2)

Donald B. White, :Unfair Competition-Constitutionality of California Unfair trade practices act.” California Law Review vol-27, No-4 (may1939)

3)

Mario Rotondi, “Unfair Competition in Europe its present Theory and unfair trade practice”, The American Journal of Comparative law, vol-7 (Summer-1958)

4)

Preston, I.L. (1967) 'Logic and Illogic in the advertising process', Journalism Quarterly, 44: 2 (Summer), 231-239.

5)

Jacoby, J. and Constance S. (1972) 'The FDA approach to defining misleading advertising', Journal of Marketing, 39, 65-73.

6)

Dillion,T. (1973) 'What is seceptive advertising?', Journal of Advertising Research, 13:5 (October), 9-12.

7)

Dyer, Robert F. and Philip G. Kuehl (1974), “The “Corrective Advertising Remedy of the FTC”: An Experimental Evaluation,” Journal of Advertising, 38 (January), 48-54.

8)

Aaker, D.A. (1974) 'Deceptive advertising,' in Aaker, D. and Day, G.S. 2nd (eds), Consumerism, New York, Free Press, pp. 137-157.

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