Netflix, Amazon, Viacom18 to challenge India’s new tobacco guidelines for OTT platforms

Update on June 05, 2023:

OTT majors Netflix, Amazon and Disney are discussing possibilities of legally challenging the health ministry’s new rules for depiction of tobacco use in OTT content, according to a report by Reuters on June 2, 2023. In a closed-door meeting, executives of the three global companies and India’s Viacom18 raised concerns about the non-feasibility of the rules given that it will require editing millions of hours of content. They also expressed distress about the ways in which the new guidelines will greatly impact consumer experience and would also “push production houses to block their content in India”.

According to the report, Indian executives have also discussed other reasons for a legal challenge stating that the IT and I&B ministry have powers to administer OTT platforms and not the health ministry.

MediaNama reached out to Netflix India, Amazon, Disney and Viacom18 via email for a comment. Netflix India responded stating that the company does not have any comment on the story.

Original story published on June 1, 2023:

With no indication of any prior consultation, Union Health Minister Dr Mansukh Mandaviya released a new set of guidelines for the depiction of tobacco products in online content by OTT platforms on May 31, 2023. The fresh rules published on the website of the National Tobacco Control Programme will be called the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023.

The rules are added as amendments to the original ones published in 2004 and the notification issued by the health ministry states that they shall come into force on and after the expiration of three months from the date of their publication in the Official Gazette.

Why it matters: The guidelines issued by the health ministry raise questions (discussed below in the article) regarding the implementation of what’s being mandated and the regulation of content by OTT platforms. Further, OTT platforms are already required to adhere to content classification requirements under the IT Rules 2021, which also include categorisation based on the use of psychotropic substances, alcohol and tobacco products. Whether or not the new rule to add health warnings in between the scenes is necessary is a matter of debate, but the notification itself does indicate a greater level of government regulation of OTT content, which has emerged as a major concern for a while now.

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What do the new guidelines say?

1. The notification states that publishers of “online curated content” wherein tobacco products or their use is displayed will have to add anti-tobacco health spots for a minimum of 30 seconds each at the beginning and middle of the programme. Online curated content includes films, audiovisual programmes, documentaries, television programmes, serials, series, podcasts, etc.
2. Such publishers will also have to display an anti-tobacco health warning “as a prominent static message at the bottom of the screen” whenever tobacco products are shown.
3. OTT platforms will also have to add an audio-visual disclaimer on the ill effects of tobacco use for a minimum of 20 seconds each in the beginning and middle of the programme.
4. Publishers will have to refer to the health spots and the disclaimer published on the websites of the Health Ministry and the National Tobacco Control Programme. The difference between a health spot and a disclaimer is not clear as they are not specifically defined in the rules.
5. The warming messages must be readable with black-colour for font on a white background and must include the text “Tobacco causes cancer” or “Tobacco kills”. These health spots, the disclaimer and audio-visual content must be in the same language as that of the online content.
6. Publishers must refrain from displaying any brands of cigarettes or other tobacco products or using visuals for any promotional materials.
7. Most importantly, failure to comply with these rules shall lead to a suo motu action against the publisher in question by “an interministerial committee” consisting of representatives from the Health Ministry, Information & Broadcasting Ministry and the IT Ministry. The committee can also issue a notice giving “reasonable opportunity” to the publisher to explain and make “appropriate modification in the content” on the basis of a complaint and after identifying the publisher in question.

What’s the problem?

MediaNama Editor Nikhil Pahwa points out three issues with these new guidelines:

1. On timelines: The notification does not clarify whether the new rules apply to existing content or only the new content that will be available after the guidelines come into force. Pahwa points out that the task of getting OTT platforms to label all instances of smoking at the point of smoking (between the scenes) is an enormous task. “It’s impossible for them to get this done immediately, while it’s possible for new content that’s coming in the platform. Any timeline for this has to be reasonable enough for the platforms to adapt,” he adds.
2. On jurisdiction: Section 31 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, enables the central government to make rules under the Act. However, it is specified in Part 3 of the IT Rules 2021 that publishers of online curated content shall be administered by the Ministry of Information & Broadcasting. Pahwa highlights the “jurisdictional confusion” in this case as the guidelines have been issued by the Health Ministry. Whether the Health ministry even has the jurisdiction to issue the rules is the question here.
3. On public consultation: Finally, Pahwa also pointed out that there has been no public consultation about issuing the rules and no comments were sought. Neither of the concerned ministries had issued a notice for public consultation or feedback on the new rules. “This is not in line with procedures required for issuing new rules,” he adds.

(The article was updated on June 05, 2023 at 1:46 pm to add Netflix’s response to the story.)

(The article and the headline was updated on June 05, 2023 at 11:00 am to add the latest developments in the story.)

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