Proposal for Stricter Anti-Tobacco Rules for OTT Platforms: Will Your Next Binge-Watch Start with a Warning?
Imagine you are about to binge-watch your favourite series on your preferred OTT (Over-The-Top) platform. You have your snacks ready, you are settled in comfortably, and just as the show is about to begin – there it is: a 20-second long, non-skippable, anti-tobacco disclaimer, and on-screen health warnings. The Indian government’s latest proposal seeks to make this scenario a reality as part of its ongoing effort to curb tobacco consumption through stricter regulations aimed at OTT platforms.
On 13th September 2024, the Ministry of Health and Family Welfare (Tobacco Control Section) (“Ministry”) published the draft Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2024[1] (“Proposed Rules”), which proposes to revise Rule 11 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023[2] (“2023 Rules”).
In May 2023, the Ministry notified the 2023 Rules for anti-tobacco warnings on OTT platforms, which became effective from 1st September 2023. However, to prioritize public health, the Ministry has now proposed even stricter Proposed Rules for anti-tobacco warnings on OTT platforms. The Ministry is currently seeking feedback from the public, with objections and suggestions invited within 30 (thirty) days from the publication of the Proposed Rules in the official gazette (i.e., 13th September 2024).
Given the increasing number of people turning to OTT platforms for entertainment, the Ministry is now expanding its tobacco control measures to this rapidly growing sector. In a bid to align OTT platforms with traditional media like television and cinema, the Proposed Rules require any and all content on OTT platforms depicting use of tobacco products to inter alia have mandatory non-skippable anti-tobacco health spots, display of prominent, static, anti-tobacco health warnings, in the manner as prescribed in the Proposed Rules.
However, is treating OTT platforms the same as television and cinema really the way forward? The conversation has sparked debates about the balance between public health, creative freedom, and the practical challenges of implementing such regulations in the digital space.[3]
What the Proposed Rules Say: Health Warnings and Beyond
The Proposed Rules introduce a new sub-clause (1A) in Rule 11 of the 2023 Rules. This requires all films on online curated content platforms[4] – whether they are Indian or foreign, and regardless of their certification by the Central Board of Film Certification (“CBFC”) – to:
- display anti-tobacco health spots, of minimum 30 (thirty) seconds duration each at the beginning and middle of the film;
- display anti-tobacco health warning as a prominent static message at the bottom of the screen during the period of display of the tobacco products or their use in the film;
- display an audio-visual disclaimer on the ill-effects of tobacco use, of minimum 20 (twenty) seconds duration each, in the beginning of the film.
While the 2023 Rules stated that every publisher of online curated content displaying tobacco products or their use must display health spots, warnings, and disclaimers, they did not explicitly specify the term ‘films’. However, the new sub-clause (1A) introduced vide the Proposed Rules (discussed above) specifically lays down requirements for all ‘films’ on online curated content platforms.
Additionally, the Proposed Rules revise Rule 11(1) of the 2023 Rules, which obligates all content published in online curated content platforms to:
- display non-skippable anti-tobacco health spots, of minimum 30 (thirty) seconds duration; and
- display non-skippable audio-visual disclaimer on the ill-effects of tobacco use, of minimum 20 (twenty) seconds upon opening the platforms of the publishers of the online curated content;
- display anti-tobacco health warning as a prominent static message at the bottom of the screen during the period of display of the tobacco products or their use in the programme on all content, whether of Indian or foreign origin, released on or after 1st September 2023.
In order to provide adequate time to all online curated content platforms for making changes in their software to implement the above requirements, the Proposed Rules will come into effect 6 (six) months from their notification in the official gazette.
It appears that the non-skippable audio-visual health spots and disclaimers, as required to be displayed upon “opening of the platform”, are modelled after the mandatory public service announcements currently shown in cinemas and on television.
2023 Rules v/s The Proposed Rules: What Has Changed?
For clarity and ease of understanding, we have provided below a breakdown of how the Proposed Rules differ from the existing 2023 Rules:
| Provision | 2023 Rules | Proposed Rules |
|---|---|---|
| Scope of Application | Applies to all publishers of online curated content displaying tobacco products. | Applies to all content published on the online curated content platform, with specific clarity on its applicability to all films, certified or not by the CBFC, of both Indian and foreign origin, published on online curated content platforms. |
| Specific Requirements for Films | No specific requirements for films separately called out. | Requires all films (certified or not by the CBFC, and of both Indian and foreign origin) published on online curated content platforms, on or after 1st September 2023, to:
|
| Health Spots | Requires anti-tobacco health spots of at least 30 seconds each to be displayed at the beginning and middle of the program. | Requires non-skippable anti-tobacco health spots of at least 30 seconds to be displayed upon opening the online curated content publishers’ platforms. |
| Health Warnings | Requires an anti-tobacco health warning to be displayed as a prominent static message at the bottom of the screen during scenes involving tobacco products or their use. | Maintains the requirement under the 2023 Rules, but explicitly applies it to all content, whether of Indian or foreign origin, as released on or after 1st September 2023, thereby making the application prospective in nature. One of the key concerns with the 2023 Rules was with respect to application on past content which seems to be addressed in the Proposed Rules. |
| Audio-Visual Disclaimer | Requires a minimum of 20-second long audio-visual disclaimer on the ill-effects of tobacco use, at the beginning and middle of the program. | Mandates a non-skippable, minimum of 20-second long audio-visual disclaimer on the ill-effects of tobacco use to be displayed upon opening the online curated content publishers’ platforms. |
| Impact | No such provision. | The requirements pertaining to Health Spots, Health Warnings, and Audio-Video Disclaimers (as explained) would apply to all content whether of Indian or foreign origin, if released on or after 1st September 2023, as detailed in the Proposed Rules in the official gazette. |
It is important to note that despite the notification of the 2023 Rules, several OTT platforms have not fully implemented the mandated anti-tobacco health spots, warnings, and disclaimers in the manner prescribed in the 2023 Rules.
According to the 2023 Rules, any failure to comply would lead to action (suo motu or based on a complaint) by an inter-ministerial committee, consisting of representatives from the Ministry of Health and Family Welfare, Ministry of Information and Broadcasting (“MIB”), and Ministry of Electronics and Information Technology (“MeitY”). However, the OTT platforms will be given a reasonable opportunity to explain such non-compliance and make necessary modifications to their content.
The 2023 Rules faced pushback from major OTT platforms, which planned to challenge them, citing inter alia high editing costs, lack of the Ministry’s jurisdiction to regulation online curated content platforms, and the lack of prior industry consultation.[5] However, the Ministry of Health and Family Welfare defended the 2023 Rules, stating that consultations had taken place between key government ministries, including the MIB and MeitY.[6]
A Step Towards Uniformity or a Creative Bottleneck?
While the Proposed Rules aim to extend the Government’s tobacco control measures to a broader digital audience, it’s important to reflect on how OTT platforms differ from traditional media. While cinema halls and television networks have long complied with the requirement to display anti-tobacco warnings, when it comes to OTT platforms, which provide content on demand and cater to a more global and individualized audience, the challenge of implementing the Proposed Rules is greater.
However, a complete absence of anti-tobacco regulations for OTT platforms may conflict with Article 14 of the Constitution of India (which mandates equality before the law), given that depiction and use of tobacco in television and cinema has long been regulated to protect public health. Accordingly, there appears to be no clear reason to treat OTT platforms differently from other mediums, such as television and cinema, when both serve broadly similar functions in terms of content consumption. Accordingly, it remains to be seen whether OTT platforms can establish an intelligible differentia (i.e., valid distinction) from traditional media to justify this differential treatment.
Most OTT platforms may argue that they host vast libraries of content produced across different countries, with varying local laws regarding the portrayal of tobacco use. Editing this global content to meet Indian regulations could pose a significant logistical and financial burden on these OTT platforms. Furthermore, interrupting the user experience with mandatory ads and warnings may not sit well with viewers accustomed to binge-watching uninterrupted episodes of their favourite shows.
On the other hand, the government’s rationale is also based on solid ground: public health. With OTT platforms increasingly becoming the go-to source of entertainment for millions, especially the youth, the depiction of tobacco use in online content has a real impact. According to various reports[7], nearly 1.35 million people die annually in India due to tobacco-related diseases, and hence, regulating the portrayal of tobacco in media is one part of the broader strategy to curb these numbers.
Conclusion: Striking the Right Balance
While the Proposed Rules for OTT platforms are undeniably well-intentioned, their successful implementation hinges on a careful balancing act. While the Proposed Rules serve an important public health goal, but come with significant challenges for both the OTT platforms and their audiences.
For OTT platforms, the key challenge will be ensuring compliance without alienating their user base. This might involve leveraging technology to automate the process of detecting and labelling content with tobacco use. Further, OTT platforms should look for measures to make health warnings less intrusive or incorporated in a more user-friendly manner to preserve the binge-watching experience.
For the Government, it is essential to engage in a dialogue with OTT stakeholders to find solutions that uphold public health priorities, while recognizing the unique nature of digital streaming platforms. A more flexible framework could allow for creative freedom while still ensuring that the necessary warnings reach the viewers.
Ultimately, the Proposed Rules reflect a growing recognition that media consumption habits are changing, and regulations must evolve to keep pace. While it remains to be seen how OTT platforms will adapt to these stricter norms, if and once implemented, this marks a significant shift in how India approaches tobacco regulation in the digital age. As content continues to blur the lines between local and global, health and entertainment, the future of content regulation will need to be just as innovative as the platforms it seeks to govern.
Authors:
Raashi Vaishya, Associate
Anushree Rauta, Partner
Footnotes
1 See: https://mohfw.gov.in/sites/default/files/Revised%20Draft%20Notification%20OTT%20Rules.pdf
2 See: https://ntcp.mohfw.gov.in/assets/document/Acts-Rules-Regulations/GSR-400(E).pdf
3 For a detailed historical analysis on the anti-tobacco health warnings, please see: https://iprmentlaw.com/2023/06/04/anti-tobacco-health-warnings-for-ott-content-should-ott-be-treated-at-par-with-theatres-and-television/
4 Explanation under Rule 11 of the 2023 Rules defines online curated content as, “any curated catalogue of audio-visual content, other than news and current affairs content, which is owned by, licensed to, or contracted to be transmitted by a publisher of online curated content, and made available on demand, including but not limited through subscription, over the internet or computer networks, and includes films, audio visual programmes, documentaries, television programmes, serials, series, podcasts and other such content;”
5 See: https://www.reuters.com/world/india/netflix-disney-amazon-challenge-indias-tobacco-rules-streaming-sources-2023-06-02/; https://www.medianama.com/2023/06/223-health-ministry-new-rules-depiction-tobacco-ott/
6 See: https://www.medianama.com/2023/07/223-ott-tobacco-rules-consultation-ib-ministry-meity-health-ministry-parliament/
7 See: https://www.who.int/india/health-topics/tobacco