I am a lifelong non-smoker, although this is more by luck than design. When the other kids were lighting up behind the school, I joined them. However, while some of them got over the feeling of nausea brought on by those first puffs and became hooked on nicotine for life (hopefully, to their “undying” regret), I was never able to get over the initial hurdle. I was lucky and claim no moral superiority. Today we all know about the public health consequences of smoking. Governments have developed a variety of policies designed to discourage smoking, from banning indoor smoking, to high taxes, to plain packaging, to health warnings and other educational efforts. This has had a high degree of success.

Yet despite a couple of generations of anti-smoking campaigns, smoking is still a reality in our society. Peoples’ motivations are different, and it is not for me to judge or preach. They are fully aware of the risks. Banning smoking would be about as effective as Prohibition was in reducing alcohol consumption. It had just the opposite effect. For this reason, proposals to make the sale and consumption of tobacco products illegal have understandably gone nowhere. The same is true for regulations that pretend smoking doesn’t exist. For better or worse, it does, and is a part of everyday life, today and in the past. And this brings me to the point of this little trip down the highways and byways of anti-smoking efforts; smoking and its relationship to filmed entertainment.

One cannot think of Humphrey Bogart without a fag hanging from his lips, a trail of smoke wafting across the face of his paramour of the moment. It would be impossible to reflect the atmosphere of a smoke-filled saloon in Dodge City without the presence of roll-your-owns. And what would W.C. Fields be without a stogie? However, it is not just historical films where smoking plays a part in creating the scene and depicting reality. Whether we like it or not, smoking is a part of the current scene (especially, it seems, in Europe). If any readers have sat recently in an outdoor café in Spain, France or Italy, you will know what I mean. I am not saying this is right; I am saying it is a fact of life.

This raises the question of how the film and TV industry should deal with the smoking issue. Should it pretend it doesn’t exist or should it deal with the issue responsibly? For decades the industry has grappled with this dilemma. The current approach is to eliminate smoking in children’s programming and issue clear warnings with respect to content aimed at more mature audiences while depicting smoking on occasions where it is necessary to convey the story. The filmed entertainment industry builds its product by telling stories that, for the most part, reflect the real world in one way or the other. Yes, there are films set on the planet of the apes, or in some future world, but most stories take place in a contemporary or historical setting. Being a reflection of society, at times filmed content depicts people smoking.

Depiction, however, has nothing to do with promotion. They are totally different.  Yet despite the difference, there are proposals from time to time in some countries–such as Indonesia at present–to deal with smoking as if it doesn’t exist. The draft regulations as currently framed would ban all scenes in filmed content that depict any smoking. This includes content produced by international streamers, such as Netflix, Amazon Prime, HBO, Disney +, etc. This, I would submit, is a step too far—and completely unnecessary.

The draft regulation is in preparation for Indonesia’s accession to the Framework Convention on Tobacco Control under the umbrella of the World Health Organization (WHO). Many countries in the Asia-Pacific region, and elsewhere, are already signatories. The treaty has been in force for about twenty years and is designed to coordinate international tobacco control efforts. According to the WHO, it has been an effective instrument in curbing what it calls a “global tobacco epidemic”. It is a worthwhile endeavour, worthy of support. The treaty was initially signed by 168 countries and now has 183 Parties, representing 90% of the world’s population. Indonesia is one of the few not to have yet acceded and the only one in Asia.

Accession and ratification requires compliance with the obligations of the Convention. These include restrictions on tobacco lobbying, demand reduction (taxes), protection from passive smoking, product regulation, packaging and labelling (health warnings), public awareness, advertising bans, addiction cessation programs, actions against smuggling and restricting sales to minors. These measures have all proven to be highly effective. Notably, there is no mention of depiction of smoking in films or TV programming nor any requirement to censor it.

However, Article 24 of the draft Indonesian Health Regulations regarding tobacco and electronic cigarette product safeguards prohibits the broadcasting, depiction, show or display of individuals “smoking, showing cigarettes, cigarette smoke, cigarette packaging, or any product relating to Tobacco and Electronic cigarettes in print media, broadcast media or information technology media related to commercial activities, advertisement or encouraging smoking.”

The draft regulation then goes on to say;

“The prohibition…includes streaming services that offer TV shows, movies, anime, documentaries, and other content accessible via internet-connected devices…Streaming services include Netflix, Disney+ Hotstar, WeTV, Viu, Iflix, Prime Video, GoPlay, CATCHPLAY+, MolaTV, Twitch, and others.”

Let’s remember that international (and domestic) streaming services are premium offerings directed at a willing, paying audience. A viewer has to “opt in” by paying a subscription. Moreover, content on the streaming platforms already complies with the anti-smoking limitations described above, such as warning labels and no exposure to children. If implemented, the Indonesian decree would require international streamers and their domestic distributors to edit all content to remove any and all depiction of smoking. Not only would this emasculate content that viewers have paid to watch, it is both impractical and unnecessary.

The draft regulation is not an accidental sideswiping of the streaming industry. It is aimed directly at it. It is hard to understand why. It already deals responsibly with smoking on screen. Implementing this measure would simply shift audiences to unedited pirate content, which is rampant in Indonesia.

The relevant section of the WHO Convention is Article 13, covering tobacco advertising, promotion and sponsorship. That article, along with its Interpretive Guidelines, requires acceding states to control advertising for tobacco products by prohibiting advertising that is false, misleading, or deceptive and by requiring health warnings on tobacco advertising, promotion and sponsorship. It also requires restrictions on incentives to purchase tobacco and prohibition, if legally possible, of tobacco sponsorship of international events and activities. Again, nothing about banning depictions of smoking.

The 28-page Guideline document goes into more detail. It raises the issue of tobacco in media, noting that the tobacco companies can get very creative when it comes to promoting their products, sometimes using “hidden forms of advertising or promotion, such as insertion of tobacco products or tobacco use in various media contents”. In other words, product placement. However, depiction of incidental smoking in films has nothing, absolutely nothing, to do with product placement or tobacco promotion.

The Guidelines go on to list what the elements of a comprehensive ban on tobacco advertising, sponsorship and promotion, as required by the Treaty, should cover;

■ all advertising and promotion, as well as sponsorship, without exemption;

■ direct and indirect advertising, promotion and sponsorship;

■ acts that aim at promotion and acts that have or are likely to have a promotional effect;

■ promotion of tobacco products and the use of tobacco;

■ commercial communications and commercial recommendations and actions;

■ contribution of any kind to any event, activity or individual;

■ advertising and promotion of tobacco brand names and all corporate promotion; and

■ traditional media (print, television and radio) and all media platforms, including Internet, mobile telephones and other new technologies as well as films

In other words, both traditional and non-traditional media should be subject to the ban on tobacco advertising and promotion. But this has nothing to do with incidental depiction.

Drilling down a bit further, there is a section dealing with depictions of tobacco in entertainment media, followed by Recommendations;

“Parties should take particular measures concerning the depiction of tobacco in entertainment media products, including requiring certification that no benefits have been received for any tobacco depictions, prohibiting the use of identifiable tobacco brands or imagery, requiring anti-tobacco advertisements and implementing a ratings or classification system that takes tobacco depictions into account.”

International streamers already comply with all these requirements, which explains why they have been able to continue to do business in all the countries that have signed on to the Convention, including the US which, although it has not become a Party, applies similar conditions.

The Indonesian regulation that would require streaming services to remove all depictions of smoking is excessive. While the goal of reducing consumption of tobacco products is laudable, to require the complete elimination of depiction, especially from streaming services, is using a sledgehammer to kill a fly, destroying the furniture on which the fly landed in the process. Appropriate, targetted regulation deals directly with the problem, avoiding unintended consequences and collateral damage. Regrettably, the current Indonesia draft regulations do not do that. By all means, fight tobacco consumption and stop the tobacco companies from finding loopholes. But do it in a way that is effective and reasonable.

This article was first published on Hugh Stephens Blog