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The Ministry of Health and Family Welfare notified the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023

The Ministry of Health and Family Welfare notified the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Rules, 2023

On 31st May 2023, 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 (“COTPA 2023”). These rules amend the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004. 

COTPA 2023 mandates publishers of online curated content to display anti-tobacco health spots, warning messages, and audio-visual disclaimers while displaying any tobacco products or their use.

The key amendments introduced in COTPA 2023 are as follows:

  • Key Definitions: The definitions for the terms “online curated content” and “publisher” of such content have been introduced to the regulations and are as follows:
    • Online Curated Content(“OCC”) – OCC is a curated catalogue of audio-visual content, other than news and current affairs content, which is, owned by, licensed to, or contracted to be transmitted by a publisher of OCC and is made available on demand over the internet or computer network, including through subscription. This term includes, inter alia, films, audio visual programmes, documentaries, podcasts or any other such content.
    • Publisher of OCC– A publisher has been defined to mean a publisher who, plays a “significant role” in determining the OCC being made available, and makes it available to users a computer resource that enables users to access OCC over the Internet. This definition includes within its ambit any entity that performs a similar function but excludes an individual/user who is not transmitting OCC in the course of business/commercial activity.
  • Anti-tobacco health spots and audio visual disclaimer: Every publisher of OCC that displays tobacco products or its use is required to display anti-tobacco health spots for a minimum duration of 30 seconds each at the beginning and middle of a programme and an audio visual disclaimer pertaining to the ill-effects of tobacco for a minimum duration of 20 seconds each at the beginning and middle of a programme.
  • Anti-tobacco health warning: Additionally, a publisher of OCC is also required to display an anti-tobacco health warning message as a “prominent static message” at the bottom of the screen while displaying the tobacco products or their use. This message must be displayed on a white background, in black font, in a legible and readable manner, and along with the following warnings, “Tobacco causes cancer” or “Tobacco kills”
  • Language requirements: The anti-tobacco health spot, warning message and audio visual disclaimer have to be provided in the same language as used in the OCC. Further, the health spot, warning message, and the disclaimer will be provided to the OCC publisher on the official websites of the MoHFW, namely “mohfw.gov.in” and “ntcp.mohfw.gov.in”.
  • Limitation: OCC publishers should not display brands of cigarettes, other tobacco products or any form of tobacco product placement, or their use in promotional material.
  • Non-compliance: In the event of non-compliance, an inter-ministerial committee can take action either suo moto or on complaint and issue a notice to the publisher of the OCC to explain the non-compliance and make corrections.

COTPA 2023 will come into force after expiration of 3 months from the date of notification, i.e. 31st August 2023.

Our Take:

The amendments introduced under COTPA 2023 appear to have been introduced with the intent of discouraging tobacco consumption considering the growing popularity of over-the-top (“OTT”) platforms and their impact on viewers. Notably, the definition of the term “online curated content” has been harmonised with the definition provided in Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and cover original content as well as any third party content hosted/made available on OTT platforms. Interestingly, the MoHFW will be providing the language for the anti-tobacco health spots, warning message and the audio visual disclaimers, informing the stakeholders about the language that would be acceptable for such health spots, warning messages, and disclaimers.

Having said this, at this time, it is unclear whether these rules would be applicable to existing programmes or new content made available after 3 months, potentially leading to administrative issues for OTT platforms. If the amendments introduced in COTPA 2023 are to apply retrospectively to existing content on OTT platforms, then the 3 month window provided under the COTPA 2023 for executing such changes is notably limited. Further, while COTPA 2023 provides for an action from an inter-ministerial committee in the event of non-compliance of these rules, the basis of forming such a committee and the scope of its powers have not been provided. COTPA 2023 also does not shed light on the consequences of non-compliance with the notice of the inter-ministerial committee. 

Moreover, since the language for the health spots, warning messages, and disclaimers will be provided by the MoHFW, which has to be displayed in the manner specified in COTPA 2023, such manner of display could potentially affect the consumer experience of watching the programme on OTT platforms. Additionally, in the absence of any definitions, the difference between a health spot, warning message and a disclaimer is unclear at this time, which may become clear when the MoHFW provides the language for the same on its websites.

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