Rules without adequate consultation and evidence are injurious to democracy

The Ministry of Health and Family Welfare (“MoHFW”) notified the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023 (“Amendment Rules, 2023”) on May 31, 2023. The amendment, through Rule 11, effectively introduces an obligation on “Over-The-Top” (OTT) platforms, requiring “online curated contents” to display anti-tobacco messaging, either in the format of static texts or audio-visual content, whenever any content displaying tobacco use is shown.

We thus wrote to the MoHFW, raising our concerns surrounding the excessive nature of the Amendment Rules, 2023, and their effect on free speech, artistic expression, as well as the right to receive information. We also highlighted the lack of consultation with relevant stakeholders in the framing and notification of these guidelines, which has led to the Rules causing confusion as to their retroactive implementation amongst OTT platforms. Reportedly, major players like Netflix and Amazon are seeking to challenge the Rules in court. We also cited the overreach of the Ministry’s regulatory ambit, given that the regulation and governance of online content streaming platforms are the remit of other ministries. Moreover, the date of enforcement of these Rules, i.e. 3 months from May 31, 2023 - is inadequate given that OTT platforms would have to sort through and edit millions of hours of content, at great cost to the platforms as well as to the viewership experience, which carries the risk of economic and consumership loss.

OTT platforms also differ in nature from cinema or TV broadcasts, as there is no compelled viewing of any content hosted by the former. Viewers can choose what to watch and what not to watch, making OTT content distinct from more traditional forms of content consumption. Further, initial research on the effectiveness of pictorial and threatening warnings associated with tobacco on OTT platforms suggest that such warnings may not be effective in decreasing consumption. The Amendment Rules, 2023, may thus be ineffective, unwarranted, and have a “chilling effect” on the critical depiction of societal ills in the context of lifestyle choices - the same societal issues of health and welfare that the Rules, in spirit, seek to address.

We recommended that the Rules be withdrawn, and that any amendments to the 2004 Rules regarding the depiction of tobacco on OTT platforms must only be introduced after conducting broad-based, meaningful consultation, and must be backed with adequate scientific evidence. Further, any regulation of OTT content must be minimal and strictly necessary, to protect their cultural relevance in India.

We shall continue to track this situation as it changes.

Important Links

  1. Our letter to the MoHFW, dated June 09, 2023 (link).
  2. The Cigarettes and Other Tobacco Products Amendment Rules, 2023 (link).