The Ministry of Health and Family Welfare on 13th September 2024 released the draft Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2024, (“Draft Amendment Rules”) under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. (“Act”)
These Draft Amendment Rules amend the existing rules and aim to mandate the display of non-skippable anti-tobacco health spots and disclaimers about the harmful effects of tobacco use for online curated content platforms.
Scope and Application
The Draft Amendment Rules apply to all films, whether certified by the Central Board of Film Certification (CBFC) or not, of both Indian and foreign origin. These films, if published on online curated content platforms (such as OTT) and released on or after 1st September 2023, are required to follow specific anti-tobacco messaging guidelines.
Regulations
The following points are suggested under the Draft Amendment Rules:
Sub Rule 1A under Rule 11 – Proposed as an Insertion
- For films released on these platforms, there is now a mandatory requirement to display anti-tobacco health spots, health warnings and disclaimers. A 30-second anti-tobacco health spot has to be shown at both the beginning and middle of the film. Any scene involving tobacco products or their use must prominently display a static health warning message at the bottom of the screen. An audio-visual disclaimer, lasting a minimum of 20 seconds, must also be shown at the start of the film, informing viewers of the ill-effects of tobacco use.
Sub Rule 1 under Rule 11 – Proposed as a Replacement
- All content published on online curated content platforms shall display a non-skippable 30-second anti-tobacco health spot and a 20-second non-skippable audio-visual disclaimer on the ill-effects of tobacco use, immediately upon opening of the platform i.e., the online curated content platforms. Additionally, whenever tobacco products are shown in any programme, a static health warning as a prominent static message (i.e., easily noticeable non-moving, fixed message) must be displayed on the screen for the duration of the depiction.
Timelines for Implementation
For the compliance mentioned in point 2 above only, the Draft Amendment Rules provide for a 6-month implementation period from the date of publication in the official gazette, to allow online platforms adequate time to make necessary adjustments. This will enable platforms to update their software and systems to ensure compliance with the new requirements.
Background
Previously, the Ministry of Health and Family Welfare had introduced the Cigarettes and Other Tobacco Products Rules, 2023, which took effect three months after their publication in May 2023.
These rules required publishers of online curated content that displayed tobacco products or their use to adhere to specific anti-tobacco messaging regulations. Content was required to feature 30-second anti-tobacco health spots at the beginning and middle of programmes, a prominent static health warning during scenes involving tobacco products, and a 20-second audio-visual disclaimer on the harmful effects of tobacco at both the start and middle of the programme.
The anti-tobacco messages, provided by the Ministry’s websites, had to be in the same language as the content and follow strict formatting guidelines, including black font on a white background with clear warnings like “Tobacco causes cancer” or “Tobacco kills.” The rules also prohibited the display of tobacco brands, product placements, and the use of tobacco products in promotional materials.
According to the 2023 rules, non-compliance was to be addressed by an inter-ministerial committee, which can take action either on its own or based on complaints. The committee would notify the publisher, allowing them an opportunity to explain and make necessary modifications to the content.
You can read more about these rules on our previous post here.
Conclusion
Several questions remain unresolved, such as whether the warnings and disclaimers must adhere to specific wording or slogans, as required under the 2023 Rules. The Draft Amendment Rules, therefore, leave many uncertainties.
Furthermore, the Draft Amendment Rules may encounter resistance due to the heightened compliance burden. For instance, the mandatory display of pop-up tobacco disclaimers each time a user accesses platforms like Netflix could be seen as excessive. Given that these disclaimers are required to be unskippable, it may result in a decline in user traffic, as subscribers may find it intrusive, particularly when paying for a seamless viewing experience.
It is not clear whether even the presence of a single content that shows tobacco use on the platform would require an unskippable popup of tobacco warnings. Moreover, this requirement seems to be unwarranted, as not all users will access content depicting tobacco use. Many may solely view other categories of content on the platform, which makes the blanket mandate of pop-up warnings unnecessary and burdensome. The tobacco warnings during scenes where tobacco use occurs, would be a sufficient in my opinion and a less intrusive measure.
Image generated on Dall-E
