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Tl;dr
On 13 September 2024, the Ministry of Health and Family Welfare (“MoHFW”) issued the draft Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2024 (“COTPA Amendment Rules”) for public consultation, with a deadline of October 12, 2024 for submitting comments. The COTPA Amendment Rules have introduced non-skippable mandatory tobacco health warnings on OTT platforms. Given the implications that these rules have on our freedom of speech and expression, IFF wrote to MoHFW and submitted our detailed comments on the Rules.
Important documents
- IFF’s consultation response on the Draft Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2024 (link)
- Draft Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2024 (link)
- Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023 (link)
Background
In May 2023, MoHFW introduced the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023 (“2023 COTPA Amendment Rules”), which introduced Rule 11 to the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004. Rule 11 of the 2023 COTPA Amendment Rules requires publishers of online curated content displaying tobacco products or their use to show anti-tobacco health spots for at least thirty seconds, warning messages at the bottom of the screen during any display of tobacco products, and audio-visual disclaimers of a minimum of twenty-second duration.
Akin to the health spots in theatres featuring Mukesh, the 2024 draft COTPA Amendment Rules has proposed modifications to Rule 11 and now requires the display of non-skippable anti-tobacco health spots and audio-visual disclaimers upon opening the platforms of the publishers of the online curated content, ie., OTT platforms. The requirement for static anti-tobacco warnings at the bottom of the screen during the period of display of the tobacco products has been retained in the draft COTPA Amendment Rules from the erstwhile Rule 11. Additionally, the draft COTPA Amendment Rules also introduced a new sub-rule which mandates the display of anti-tobacco health spots, anti-tobacco static message at the bottom of the screen during the period of display of the tobacco products or their use in the and audio-visual disclaimers in all films published on OTT platforms.
Our Submissions
- Jurisdictional Conflict
The draft COTPA Amendment Rules have been released by the MoHFW. Section 31 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (“COTPA Act”) empowers the Union Government to make rules on anti-tobacco warnings, however, the draft COTPA Amendment Rules directly regulate OTT platforms and their published content. As per Rule 8, Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, publishers of online curated content will be administered by the Ministry of Information Broadcasting (“MIB”). This is further confirmed by the Government of India (Allocation of Business) Rules, 1961 which provides that “Films and Audio-Visual programmes/content made available by online content providers/publishers” fall under the purview of MIB. The draft COTPA Amendment Rules have bypassed the nodal ministry for OTT platforms and have legislated upon areas that do not fall under their executive preview. MoHFW has overreached the limits of its powers by seeking to govern OTT platforms by infringing on the jurisdiction of another ministry which must be remedied.
- Negative impact on freedom of speech and expression
The introduction of the draft COTPA Amendment Rules may have a chilling effect on critical depiction of societal ills in the context of lifestyle choices, thus infringing on the right to freedom of speech and expression of the individual involved in the making of the content in question. Requiring films and other content to include non-skippable 30-second anti-tobacco health spots and warnings during the display of tobacco use are stringent requirements that impact the creative freedom of artists. These requirements are also inherently judgemental of certain lifestyle choices and are patronizing towards individuals consuming content on OTT platforms. We believe, therefore, that the draft COTPA Amendment Rules, can have adverse consequences on the constitutional and cultural rights of the citizens of India, especially their right to the freedom of speech and expression. This right extends to both, the creator of the content as well as the audience, whose artistic freedom and right to receive information are being interfered with respectively.
- Non-efficacy of tobacco warning health spots
Initial research on the effectiveness of pictorial and threatening warnings (“PTW”) associated with tobacco on OTT platforms suggests that such warnings may have limited, if any, effect on people’s intention to quit or reduce cigarette consumption, and that the effect fades over time. Viewers also feel that the need for additional text disclaimers is “unwarranted”. A judgment in the case of Tobacco Institute of India v. Union of India states that rules mandating cigarette manufacturers to show a health warning on 85% of the cigarette packaging as well as text stating “smoking causes cancer” are found “unscientific and disproportionate”.
- Regulation of OTT platforms
The draft COTPA Amendment Rules do not take into account the unique nature of OTT platforms and streaming services. These rules have blindly imported requirements for tobacco warnings in theatres to OTT platforms without considering key differences between the same. While discouraging the use of tobacco products is a legitimate state aim, it may be worth considering if online streaming services are the right avenue for implementing this aim, given their inaccessibility due to access or economic constraints. The Kerala High Court in the case of Peggy Fen vs Central Board Of Film Certification [2022 SCC Online Ker 785] stated that – “There is no compelled viewing of this movie. The OTT platform cannot be treated as a captive audience who are forced to watch the movie.”
Thus, the distinct nature of OTT platforms and their audience must also be considered before introducing such regulatory burdens on publishers and platforms. For instance, the draft COTPA Amendment Rules do not consider the fact that viewers tend to binge-watch content on OTT platforms and that these non-skippable tobacco health spots would be displayed before every single episode/content block and hence viewers will be subjected to repeated ads during a given viewing session. Further, viewers often consume content on OTT platforms using small-screen personal devices. Cramming static tobacco warnings into small smartphone screens could significantly ruin the viewer experience. Lastly, the draft COTPA Amendment Rules do not specify the language in which the tobacco health spots are to be shown in. Given that OTT platforms host content in a bevy of languages, it would be unrealistic to customise the health spots for every single language that is available on OTT platforms.
- Impact on EoDB and the Indian Economy
The stringent requirements imposed on OTT platforms through the draft COTPA Amendment Rules could significantly impact the EoDB of OTT platforms and hamper the growth of the OTT industry in the country. India is uniquely positioned to experience an OTT and internet boom in the near future. As per a recent report by the Telecom Regulatory Authority of India, the total number of internet subscribers increased from 936.16 million at the end of December 2023 to 954.40 million at the end of March 2024, registering a quarterly rate of growth of 1.95%. With a growing penetration of internet users, India is uniquely positioned as an attractive market for OTT video/streaming services. Revenue of the Indian video OTT market is set to double from US$ 1.8 billion in 2022 to US$ 3.5 billion by 2027. The growth of this sector and the revenue generated from the same could be a huge boost to the Indian economy. However, compliance requirements such as the draft COTPA Amendment Rules would likely be viewed as huge regulatory hurdles by OTT platforms and as a deterrent to EoDB. In order to implement the draft COTPA Amendment Rules, unlike other mediums such as theatres and TV, OTT platforms have to go back and edit hours and hours of content to include the tobacco health spots. The impact which these health spots would have on the viewing experience is also not likely to be taken kindly by the OTT industry.
The draft COTPA Amendment Rules also require the display of a non-skippable audio-visual disclaimer on the ill effects of tobacco use, for a minimum of twenty seconds upon opening the OTT platforms. Such a requirement would have a deep impact on the carefully curated and researched consumer experience crafted by OTT platforms. In the wake of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023 dated 31 May, 2023, OTT platforms are already planning to adopt legal challenges to fight the requirements for tobacco warnings on streaming platforms. If these regulatory hurdles prove to be too cumbersome for OTT platforms, then we might be looking at a situation where they restrict their involvement in the Indian market.