New rules for OTTs: Disclaimers for cigarettes and tobacco products

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) on 31 May 2023 i.e., World No-Tobacco Day. This Amendment has been made to the existing Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 (Rules), which restrict smoking in public places, advertisement of cigarettes and tobacco products, sale to minors, and requires inclusion of tobacco related warnings. The Amendment mandates inclusion of anti-tobacco health spots, warnings, and disclaimers by publishers of online curated content (OTT Platforms) in audio-visual programs depicting use of cigarettes and tobacco products.

While the intent of the Amendment is to curb rising tobacco consumption amongst the younger generation, it imposes a heavy burden of compliance on OTT Platforms. To comply with the Amendment, OTT Platforms will be required to edit large volumes of content available on their platforms (including content acquired prior to the Amendment being enacted), to incorporate the requisite health warnings and disclaimers in all content available or to be made available on the platforms.

The key compliances set out in the Amendment are as follows:

Reportedly, OTT Platforms intend to challenge the validity of the Amendment on the grounds that OTT Platforms fall only within the ambit of the MIB. This follows a previous challenge to the 2006 amendment to the Rules, which: (is) banned the display or use of tobacco products in film and television, (ii) required owners / managers of cinema halls and broadcasters to include anti-tobacco health spots or warnings, and (iii) required blurring of brand names of tobacco products displayed on any media. The Delhi High Court held that these provisions were violative of Article 19(1)(a) of the Constitution of India and ultra vires of the parent act (reference Mahesh Bhatt v Union of India [156 (2009) DLT725]). However, the Supreme Court of India stayed the order of the Delhi High Court, and the petition is still pending before the Supreme Court (reference Union of India v Mahesh Bhatt and Another [SLP (C) Number 3709-3711/2009]). It will be interesting to see the manner in which the Amendment is implemented.

-     Tanu Banerjee (Partner), Ishan Johri (Principal Associate) and Garima Kedia (Associate)

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