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Laws governing the sale of optical lens in India

Background:

To understand the relevant legislations governing the sale of optical lens i.e. contact lens in India and further the regulations if any on the sale of contact lens via the e-commerce platform.

Whilst I have not come across a specific legislation regulating such sale, I would like to draw attention to the Drugs and Cosmetics Act, 1940 (“Act”) and the Drugs and Cosmetics Rules, 1945 (“Rules”) made thereunder. The Act defines a drug in such a manner that it includes devices intended for external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings[1]. Contact lens are intended to correct or improve the vision of people with myopia, hyperopia, presbyopia, and astigmatism by wearing it over the eye, thereby it can be inferred that contact lens is in fact a device intended for external use to treat a disorder in humans.

Chapter IV of the Act provides for the procedure to manufacture, sell and distribute drugs, pursuant to which no drug can be sold or manufactured or distributed which is not of a standard quality or is misbranded, adulterated or spurious. Further Section 18 of the Act mandatorily requires a license for the distribution or sale of drugs.

Pursuant to Rule 59, an application is required to be made for the grant of a licence to sell, stock, exhibit or offer for sale or distribute drugs. Accordingly duly filled Form 19/ 19A accompanied by a fee of rupees one thousand and five hundred, if the drugs falls under Schedule C or Schedule C1 will be made. Schedule C provides for Biological and Special Products, and lists Ophthalmic preparations. Ophthalmic preparations are sterile, liquid, semi-solid, or solid preparations[2] and most commonly are eye drops and ointments. It does not seem to include contact lens but rather the solutions and ointments required for contact lens care and upkeep. Therefore if the website intends to sell products such as lens solution or ointments it will require a license for the same as such products are Ophthalmic preparations.

As contact lens do not fall within the Schedule C or Schedule C1, Rule 61 specifies that  a license shall be issued in Form 20, Form 20-A or Form 20-B, as the case may be to sell, stock, exhibit or offer for sale or distribute drugs. As a result a license will be required for sale of contact lens.

Further, as the sale of contact lens does not require a qualified person, a restricted license will be applied for in Form 20A. In addition the conditions for sale, as per Rule 65 is as follows:

·         The supply, otherwise than by way of wholesale dealing of any drug supplied on the prescription of a Registered Medical Practitioner shall be effected only by or under the personal supervision of a registered Pharmacist;
·         The supply of any drug on a prescription of a registered medical practitioner shall be recorded at the time of supply in a prescription register specially maintained for the purpose and the serial number of entry in this regard shall be entered on the prescription;
·         The description "Drug store" shall be displayed by such licensees who do not require the services of a registered Pharmacist[3];

Reference the query on whether contact lens require prescriptions to be sold, please note that Schedule H of the Rules provides the list of prescription drugs, and the note to the schedule states that the preparations containing the substances listed excluding those intended for topical/or external use are also covered by this Schedule. Therefore it is clear that contact lens would not require a prescription.

Further Schedule H1 provides that preparations containing the drug substances and their salts as listed in Schedule H1 excluding those intended for topical or external use except ophthalmic containing the listed substances are covered by the Schedule. To reiterate if the website intend to sell Ophthalmic preparations it will be under a prescription if such Ophthalmic preparations contain the substances listed in Schedule H1.

The Rules provide that the labeling[4] and standards[5] of Medical Devices must conform to the specifications as prescribed by the Bureau of Indian Standards[6]. Schedule R1 provides that medical devices as listed shall conform to the Indian Standards specification laid down from the time to time by the Bureau of Indian Standards, and there is no mention of Opthalmic lens/ contact lens therein. Therefore contact lens only have to conform with the labeling requirements of BIS.

It is clear that the Act and Rules regulate the import, manufacture, sale and distribution of Medical Devices, however only notified medical devices are regulated in India. As per the list of notified Medical Devices as available on the website[7] of Central Drugs Standard Control Organization (CDSCO), there is no notification for contact lens, however Intra Ocular Lenses (“IOL’s”) have been notified as a Medical Device. IOL’s are implanted inside the eye to replace the eye's natural lens when it is removed during cataract surgery, and are also used for a type of vision correction surgery called refractive lens exchange, therefore would not include contact lens.





[1] Section 3(b)(iv) of the Drugs and Cosmetics Cat , 1940 defines drugs as: "drug" includes--
(i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;
(ii) such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette;
(iii) all substances intended for use as components of a drug including empty gelatin capsules; and
(iv) such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of disease or disorder in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette, after consultation with the Board;
[3] Rule 65(15)(a)
[4] Rule 95: Prohibition of sale or distribution unless labeled: Subject to the other provisions of these Rules, no person shall sell or distribute any drug (including a patent or proprietary medicine) unless it is labelled in accordance with these Rules.
[5] Rule 125A of the Drugs and Cosmetics Rules , 1945
[6] Rule 109A of the Drugs and Cosmetics Rules , 1945

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