Anti-Tobacco Warnings in OTT Streaming: Can India find the balance?

The impracticality of implementing non-skippable health warnings and static warnings across smoking-related content has been highlighted.

In a well-ordered society, vigilance and measured action on public health issues are vital. Public health regulations serve to protect citizens and prevent societal harm, but they must not become conduits for regulatory overreach that stifles innovation, growth, or freedom of speech.

Take, for example, the recent amendments to the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act (COTPA). These amendments, although altruistic in nature, could pose significant problems unless the government and industry collaborate to create meaningful guidelines and actionable regulations.

The COTPA Rules 2023 set a challenging yet manageable precedent. However, the proposed 2024 Amendments, issued in September 2024, have raised concerns about their impact on the OTT (Over-The-Top) industry and its viewers. Unlike linear platforms such as cinema or television, OTT platforms are accessed on small screens in a "pull-based" manner and offer curated, on-demand content.

Keeping Up with OCCP Users

The proposed regulations mandate that Online Curated Content Providers (OCCPs) display 50 seconds of non-skippable health warnings and include static warnings across content depicting smoking. While these regulations align with traditional broadcast norms, they overlook the distinct viewing patterns of OCCP users. Studies show that OTT users often browse multiple titles before making a choice. Repeated warnings for each interaction could disrupt the immersive experience that draws viewers to these platforms. Another industry report highlights the impracticality of implementing non-skippable health warnings and static warnings across smoking-related content. Such measures risk alienating viewers, disrupting user experience, and reducing viewer engagement, ultimately harming smaller platforms. For instance, young children might be exposed to these advertisements, turning a deterrent into an awareness generator.

Rushed Compliance: A Flawed Approach

In addition to concerns about viewer experience, the proposed mandates overlook the technical and operational limitations faced by OCCPs. Platforms would need to overhaul vast catalogues of licensed and original content, often created globally, to comply with the new standards within an unfeasibly short six-month timeline. This rush for compliance introduces significant challenges, particularly for smaller platforms that may lack the resources for such rapid adaptation. Given India’s aspiration to become a global content hub, regulatory measures that deter international content partnerships and stifle smaller creators could hinder this vision.

Equally concerning is the regulatory overlap that the Proposed 2024 Amendments would create, especially in relation to the existing mandates under the IT Rules 2021, which already regulate OCCP content with a balanced approach. Under these rules, OCCPs must self-regulate, display content ratings, provide parental controls, and list content descriptors, including harmful substances such as tobacco. In scenarios where tobacco use is depicted, stricter classifications and content warnings are already in place to guide viewers. The IT Rules adopt a more targeted approach that respects the viewer’s discretion while providing adequate warnings ahead of their viewing experience. Overlapping requirements under the COTPA amendments would not only introduce jurisdictional ambiguity between the Ministry of Health and Family Welfare, the Ministry of Information and Broadcasting, and the Ministry of Electronics and IT but also risk double penalisation for non-compliance.

The Proposed 2024 Amendments risk stifling India’s digital content ecosystem with overly prescriptive regulations. A recalibration towards adaptable, phased implementation with a focus on educational content could allow for meaningful tobacco control measures without compromising the growth of India’s thriving creative economy. Potential revisions to the amendments might include strategies such as a graded implementation period, creative public service content, or strengthened parental controls. India could also benefit from a more collaborative approach with OCCPs, leveraging these platforms’ extensive reach to spread effective anti-tobacco messages without detracting from viewer experience. Adopting a more consumer-friendly approach is crucial, balancing public health objectives with content accessibility and the economic potential of the OCCP sector.