Base de Datos de Legislación

Part IV: Miscellaneous Provisions

36. Advertisement of drugs

(1) Subject to the provisions of this Act, no person shall advertise any drug or poison except with the written permission of the Board.

(2) Applications for the advertisement of any drug or poison shall be made to the Board in the prescribed form and shall be accompanied by the prescribed fee.

[Act No. 7 of 1990, Sch.]

39. Prohibition of misleading advertisements

Subject to the provisions of this Act, no person shall take any part in the publications of any advertisement referring to a drug, medicine, medical appliance or similar article in terms which in the opinion of the Board are considered to be extravagant and to bear little or no relation to the pharmacological properties and action of the ingredients or components thereof.

40. Offences and penalties in respect of advertisements

(1) A person who contravenes any of the provisions of sections 36, 37, 38 and 39 shall, subject to this Act, be liable—

(a) in the case of a first conviction, to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding one year, or both;

(b) in the case of a subsequent conviction, to a fine not exceeding thirty thousand shillings or to imprisonment for a term not exceeding two years or to both.

(2) Where, in proceedings for contravention of any of the provisions of sections 37 and 38, it is proved—

(a) that an advertisement was published referring to any drug, appliance or article of any description, in terms calculated to lead to the use of such drugs, appliance, or article—

(i) in the case of a contravention of section 37 of this Act, for the treatment of any of the human ailments referred to in subsection (1) of that section; or

(ii) in the case of a contravention of section 38 of this Act, for procuring the miscarriage of women; and

(b) that the advertisement also referred to the drug, appliance or article in terms calculated to indicate that it was manufactured, produced, imported, sold or offered for sale by the person charged,

then, unless the contrary is proved, it shall be presumed for the purpose of those proceedings that that person took part in the publication of the advertisement, but without prejudice to the liability of any other person.

(3) In any proceedings for contravention of any of the provisions of sections 36, 37, 38 and 39, it shall be a defence for the person charged to prove—

(a) that the advertisement to which the proceedings relate was published in such circumstances that he did not know and had no reason to believe that he was taking part in the publication thereof; or

(b) that the advertisement was published only in a publication of a technical character intended for circulation mainly amongst persons of the following classes, or of one or some of them that is to say—

(i) duly qualified medical practitioners, dentists and veterinary surgeons;

(ii) registered pharmacists and authorized sellers of poisons;

(iii) persons undergoing training with a view to becoming duly qualified medical practitioners, dentists or veterinary surgeons, or registered pharmacists;

(iv) persons carrying on a business which includes the sale or supply of surgical appliances.

(4) No prosecution for a contravention of any of the provisions of sections 37, 38 and 39 of this Act shall be instituted without the consent of the Attorney General.

[Act No. 7 of 1990, Sch., Act No. 2 of 2002, Sch.]