MoHFW releases draft Anti-Tobacco rules for streaming services

We missed this earlier: On September 13, the Ministry of Health and Family Welfare released a draft amendment for the anti-tobacco rules for over-the-top (OTT) platforms. These amended rules, called  Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2024, will require streaming services to display non skippable audio visual anti-tobacco health spots for at least 30 seconds on all content. Streaming platform operators must also carry non-skippable audio visual disclaimers on the ill-effects of tobacco use for 20 seconds when someone opens the streaming service. Companies also have to carry static anti-tobacco health warnings at the bottom of the screen when someone is using a tobacco product in a programme.

These rules amend the anti-tobacco rules that the Ministry had issued in June last year which were in turn an amendment of the original rules published in 2004. The 2023 amendment added a new rule (Rule 11) which instructed streaming services to carry health spots during the beginning and middle of all their programmes, and display static warnings when someone uses a tobacco products.

The major change from the 2023 rules is that now streaming services have to show people these disclaimers not just during programmes but also as soon as someone opens up the streaming platform. Further, they cannot make these health spots and disclaimers skippable, which will mean that to watch a show on say Netflix, you will have to sit through at least two non-skippable health warnings. The rules do not specify how long they would be up for consultation and when they would come into effect.

Pushback against anti-tobacco rules:

The 2023 rules had seen pushback from the industry, with streaming services like Netflix, Amazon Prime and Disney reportedly considering legal action against them. The companies were concerned that these health spots would negatively impact consumer experience and could cause production houses to block content in India.

Streaming services also flagged that OTT platforms fall within the jurisidiction of the Ministry of Information and Broadcasting (MIB) and the Ministry of Electronics and Information Technology (MeitY) and not under that of the Ministry of Health and Family Welfare. The Ministry addressed this point in response to a parliamentary question in July 2023. It mentioned that it had consulted both MIB and the MeitY about the rules.

Besides the question about jurisdiction, there were also concerns about stakeholder consultation with some, like the Internet Freedom Foundation (IFF), arguing that the ministry issued the rules in a non inclusive and non transparent manner. However, it seems like the Ministry has since met with industry representatives. Speaking to the Economic Times in January this year, the Producers Guild of India CEO Nitin Ahuja mentioned that the Ministry of Health and MIB had conducted a joint meeting with stakeholders and industry associations about the subject of health warnings.

He explained that the Producers Guild has asked the two Ministries for assistance for creating a workable solution for anti-tobacco warnings. The guild mentioned that the approach that the health ministry had devised in its 2023 rules would cause disruptions in content viewing and lead to added costs for platforms. However, given that instead of making the new rules more workable, the Ministry has made the health spots non-skippable, it appears that the concerns around viewing disruption was not heeded.

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Health spots for films:

The rules also state that all films released after September 1, 2023 and present on streaming services, must carry anti-tobacco health spots of at least 30 seconds each at the beginning and in the middle of the runtime. Films also have to carry a prominent static anti-tobacco health warning at the bottom of the screen while someone is using a tobacco product on screen.

Further, they must also display an audio-visual disclaimer about the ill effects of tobacco use at the film’s beginning. These rules apply to all films irrespective of whether the Central Board of Film Certification certified them or not and also irrespective of whether they are Indian or international.

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