Easy Guide to the Tobacco Advertising Prohibition Act 1992

The Australian Government Department of Health has produced this guide to help the public understand the Commonwealth’s Tobacco Advertising Prohibition Act 1992.

Page last updated: 11 January 2013

Contents

Copyright
Introduction
An outline of the Act
Contact details
The General Ban on Tobacco Advertising
Exceptions/exemptions to the General Bans

Australian Government Department of Health

Easy Guide to the Tobacco Advertising Prohibition Act 1992


ISBN: 978-1-74241-805-6
Online ISBN: 978-1-74241-806-3
Publications approval number: D0934

Paper-based publications
Copyright of Commonwealth of Australia 2015
This work is copyright. You may reproduce the whole or part of this work in unaltered form for your own personal use or, if you are part of an organisation, for internal use within your organisation, but only if you or your organisation do not use the reproduction for any commercial purpose and retain this copyright notice and all disclaimer notices as part of that reproduction. Apart from rights to use as permitted by the Copyright Act 1968 or allowed by this copyright notice, all other rights are reserved and you are not allowed to reproduce the whole or any part of this work in any way (electronic or otherwise) without first being given the specific written permission from the Commonwealth to do so. Requests and inquiries concerning reproduction and rights are to be sent to the Communication Branch, Department of Health , GPO Box 9848, Canberra ACT 2601, or via e-mail to the Copyright contact email address.

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Copyright of Commonwealth of Australia 2015
This work is copyright. You may download, display, print and reproduce the whole or part of this work in unaltered form for your own personal use or, if you are part of an organisation, for internal use within your organisation, but only if you or your organisation do not use the reproduction for any commercial purpose and retain this copyright notice and all disclaimer notices as part of that reproduction. Apart from rights to use as permitted by the Copyright Act 1968 or allowed by this copyright notice, all other rights are reserved and you are not allowed to reproduce the whole or any part of this work in any way (electronic or otherwise) without first being given the specific written permission from the Commonwealth to do so. Requests and inquiries concerning reproduction and rights are to be sent to the Communication Branch, Department of Health , GPO Box 9848, Canberra ACT 2601, or via e-mail to the Copyright contact email address.

This guide is provided for general information only and you should not rely on the information in this guide as a legal interpretation of the Act for the purpose of a particular matter. Anyone who needs a legal interpretation of the Act should seek independent legal advice before any action or decision is taken on the basis of the material in this guide.

Produced by the Tobacco Control Branch, Australian Government Department of Health , Canberra.
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Introduction

Purpose of the guide

The Australian Government Department of Health has produced this guide to help the public understand the Commonwealth’s Tobacco Advertising Prohibition Act 1992 (the Act).
It has been designed to assist:
  • people who sell tobacco products (such as tobacconists, service stations, supermarkets, grocery shop owners, and internet retailers);
  • those whose work involves publishing or broadcasting (like advertising agents and people who work in the media); and
  • people who deal with the tobacco industry (like sporting or cultural groups seeking sponsorship).
This guide explains, using examples, what is and is not allowed under the Act. It also explains why there is a ban on tobacco advertising in Australia. However, the guide is provided for general information only and you should not rely on the information in this guide as a legal interpretation of the Act for the purpose of a particular matter. Anyone who needs a legal interpretation of the Act should seek independent legal advice before any action or decision is taken on the basis of the material in this guide.

You can download an up-to-date version of the Act from the ‘Comlaw’ website. You can also download an up-to-date version of the Tobacco Advertising Prohibition Regulation 1993 (the Regulation) from the ‘Comlaw’ website.
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Why is tobacco advertising banned?

Tobacco advertising is banned because it promotes a product that is highly addictive and lethal.

The aim of the tobacco advertising ban is to help prevent smoking uptake and reduce smoking rates. The goal is to improve the health of all Australians.

Tobacco remains one of the largest preventable causes of disease and premature death in Australia. Smoking is estimated to kill 15,000 Australians each year and cost the economy and society $31.5 billion a year1 .

Passive smoke, also known as Environmental Tobacco Smoke (ETS), is a combination of poisonous gases and breathable particles that are harmful to health, particularly that of children. Smoking near babies and children exposes them to ETS. Children exposed to ETS may experience serious illnesses such as pneumonia, middle ear infections and asthma2 .

Around 12.8 per cent of Australians aged 14 years or older are daily smokers3 . Most of these people are addicted to nicotine. For this reason, it is not currently practicable for the Australian Government simply to make tobacco illegal. Instead, the Government has initiated a number of measures to limit the harm of tobacco use. The ban on tobacco advertising is one of those measures.

Historically, tobacco advertisements have used images and messages that feature health, success, youth and leisure. The constant linking of cigarettes with such messages distracts people from the reality that smoking causes illness and death.

Tobacco advertising is a powerful influence that increases the use of tobacco products, particularly by children and young people.
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An outline of the Act

The Act bans tobacco advertising with certain limited exceptions. Section 13 bans the broadcast of tobacco advertisements. Section 15 bans the publication of tobacco advertisements.

The offences in s.15 of the Act are largely limited to publications made by corporations; and publications made in the course of, or for the purposes of, interstate or overseas trade or commerce.

Section 15A makes it an offence for a person to publish tobacco advertisements via the internet or other electronic means; for example, mobile phones. The offence in s.15A applies to all persons, whether corporations or individuals. This offence applies:
  • where the advertisement originates in Australia; or
  • where the advertisement does not originate in Australia, or its origin cannot be determined; and the advertisement has an ‘Australian link’; and the advertisement is accessible (or intended to be accessible) by the public in Australia – s.15A(4).
A tobacco advertisement has an ‘Australian link’ if, at the time that it is published, the publisher is, for example, an Australian citizen or an Australian corporation – s.15A(5)).

The Act defines ‘tobacco advertisement’ more broadly than the everyday meaning of the term. The definition includes any writing, still or moving picture, sign, symbol, or other image, any audible message, or any combination of two or more of those things, that promote smoking or the use of tobacco products – s.9(1). There is further discussion of what the term ‘tobacco advertisement’ means below in the General Ban on Tobacco Advertising section this guide. The General Ban on Tobacco Advertising section of the guide outlines what it means to ‘publish’ and ‘broadcast’ a tobacco advertisement under the Act.

The Act provides for a number of exclusions from its broad definition of a tobacco advertisement. An example is s.9(3), which excludes from the definition, signs or symbols when they appear on land or buildings occupied by a tobacco manufacturer.

The Act also sets out certain instances where, although a publication or a broadcast may fit within the definition of publication or broadcast of a ‘tobacco advertisement’, it may be exempt from the general ban on tobacco advertising. The listing of a tobacco company in a phone book, for example, does not, of itself amount to a publication of a tobacco advertisement – s.10(3A).

Other exceptions/exemptions to the general bans are discussed in further detail from the Exceptions/exemptions to the General Bans section of this guide.
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State and territory Laws

Throughout Australia, Commonwealth, state and territory laws apply to tobacco advertising. State and territory laws are often more stringent.

To the extent that there is any inconsistency between Commonwealth and state and territory laws relating to tobacco advertising, the Commonwealth law prevails.

Where the state or territory law is more restrictive than, but not inconsistent with, the Commonwealth law, then the state or territory law will continue to apply.

This rule applies to all parts of the Act except for the part that deals with point-of-sale tobacco advertising. Where a state or territory has a law that deals with point-of-sale tobacco advertising, the state or territory law applies in all cases.

For further information about state and territory laws please contact the relevant state or territory health department.
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Contact details


Australian Government


Tobacco Control Branch
Department of Health
GPO Box 9848
Canberra ACT 2601
Email: Tobacco Advertising
Tobacco advertising Information in Department of Health Website

State and Territory Government contact details


Australian Capital Territory
Health Protection Service
Health Directorate
GPO Box 158
Canberra ACT 2601 Ph (02) 6207 3000
Tobacco advertising Information in ACT - ACT Government Health Website

New South Wales
Tobacco and Health Branch
NSW Ministry of Health
Locked Mail Bag 961
North Sydney NSW 2059
Ph 1800 357 412
NSW Health and Tobacco Control Information - NSW Government Health Website

Northern Territory
Alcohol and Other Drugs Department of Health
PO Box 40596
Casuarina NT 0811
Ph 1800 888 564
Tobacco Control Legislation Reforms Information - Department of Health, NT Website

Queensland
Tobacco and Alcohol Branch
Queensland Health
GPO Box 48
Brisbane QLD 4001
Ph 13 7468
Tobacco Laws Information - Queensland Health Website

South Australia
Tobacco Control Unit
Drug and Alcohol Services
Department of Health
161 Greenhill Road
Eastwood SA 5063
Ph (08) 8274 3451
Tobacco Control Information in South Australia - South Australia Department of Health Website

Tasmania
Tobacco Control
Department of Health and Human Services
Level 3/25 Argyle Street
Hobart TAS 7001
Ph 1800 671 738
Tobacco Control Information - Department of Health and Human Services, Tasmania Website

Victoria
Tobacco Policy & Program Section
Department of Health
GPO Box 4057 Melbourne VIC 3001
Ph 1300 136 775
Tobacco reforms information - Department of Health, Victoria Website

Western Australia
Tobacco Control Branch
Environmental Health Directorate Department of Health
PO Box 8172
Perth Business Centre WA 6849
Ph (08) 9388 4999
Email: tcb@health.wa.gov.au
Tobacco Control Legislation - Department of Health, WA Website
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The general ban on tobacco advertising

Definition of a ‘tobacco advertisement’

Tobacco advertisements take a number of forms, for example magazine and newspaper advertisements, point-of-sale promotions, or images or information published on internet sites. For this reason, the Act defines a tobacco advertisement broadly – s.9(1).

Under the Act, a tobacco advertisement is basically anything that gives publicity to or promotes:
  • smoking

    This would include, for example, images in shop displays, magazines, websites, and on clothing, which depict smoking.
  • the purchase or use of tobacco products

    A tobacco product is defined in section 8 of the Act. It is tobacco itself and any product that contains tobacco (as a main or substantial ingredient) designed for human consumption. Cigarette papers, cigarette rollers and pipes are also tobacco products under the Act.
  • a registered trademark or registered design for tobacco products

    For example, this would include the word ‘Marlboro’. It could also include the packet design, for example the red and white Marlboro chevron.
  • any other words or designs or combination of words or designs that are closely linked with a tobacco product.

    For example, the Winfield motto “…anyhow*” combines words and a symbol that, when they appear in that format in white on a red background, are closely linked with a tobacco product. Likewise, the camel logo that has become famous in America promoting Camel cigarettes is a design that is closely linked with a tobacco product.
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Definition of ‘publish’ a tobacco advertisement

What it means to ‘publish’ a tobacco advertisement is set out at subsection 10(1) of the Act.

A person publishes a tobacco advertisement if they:
  • include it in a document that is available or distributed to the public or a section of the public

    For example, a document may be a newspaper, magazine, leaflet or ticket.
  • include it in a film, video, TV or radio program that is to be seen or heard by the public or a section of the public

    For example, if a film producer includes a tobacco advertisement in a film, they publish that advertisement for the purposes of the Act.
  • sell, hire or supply it to the public or a section of the public – or offer to do so

    For example, if a person tried to sell a t-shirt or stubby holder that had a cigarette brand logo on it they would have published a tobacco advertisement.
  • display, screen or play it so that it can be seen or heard from a public place, public transport or a workplace

    For example, promoting a cigarette brand over a public address system.
  • bring or disseminate it, or something that contains it, to the notice of the public or a section of the public, by an electronic means

    For example, by means of the internet, or by making advertisement remotely accessible by a computer, mobile phone or any other electronic device.
  • disseminate or bring it to the notice of the public by any means

    For example, by means of a film, video or computer disk or via email or other means.
Thus, virtually all forms of media are covered. The main exception is ‘broadcasting’, which is excluded from the definition of ‘publish’ – s.9(2).
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Definition of ‘broadcast’

The Act defines ‘broadcast’ to include ‘transmit by means of a broadcasting service within the meaning of the Broadcasting Services Act 1992’– s.8. In most cases, this simply means by way of radio or television.

Enforcing the Act

It is an offence to publish or broadcast a tobacco advertisement in contravention of the Act.

The maximum fine for an individual who publishes or broadcasts an advertisement is 120 penalty units4 ($21,600 as at 31 July 2015). These penalties are set out in s.13(1) and s.15(4). For a corporation, the fine is up to 600 penalty units5 ($108,000 as at 31 July 2015).

Most people willingly comply with the Act. The Government takes breaches of the Act seriously. The Department of Health investigates reported breaches.

If the Department considers that a potential breach has occurred, it has the option of referring the matter to the Australian Federal Police who may, in turn, refer the matter to the Commonwealth Director of Public Prosecutions.

If you wish to report a potential breach of the Act, please contact the Tobacco Control Branch in the Department of Health. It is preferable that reports of breaches are submitted in writing. Contact details (including the contact email address for tobacco advertising matters) are in the Contact details section of this guide. Please enclose a copy of the alleged breach if it was printed or sufficient other information or evidence to enable the Department to investigate.
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Exceptions/exemptions to the general bans

Earlier in this guide, we explained that the Act defines a ‘tobacco advertisement’ as almost anything that gives publicity to or promotes tobacco products or smoking. This does not mean, however, that any mention of a tobacco company, brand or image associated with smoking is a breach of the Act. The Act has a number of exceptions and exemptions. These allow tobacco advertising under certain circumstances.

The main exceptions to the general ban are discussed below.

Political discourse

Political comments by media, manufacturers, distributors or retailers of tobacco products are not tobacco advertisements if they only relate to ‘government or political matters’ and do not promote smoking, or a particular tobacco product or range of tobacco products – s.9(1A).

‘Government or political matters’ is defined in section 8 of the Act. It includes matters to do with any level of government in Australia including government policies, elections, appointments to public office and the performance of politicians.

For example, debates among the public, politicians or tobacco companies are permissible, provided tobacco manufacturers do not explicitly promote tobacco brands or particular products.
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Words on products, packaging, business documents and premises

The words, signs or symbols on a tobacco product or its packaging are not tobacco advertisements under the Act – s.9(2). When the Tobacco Plain Packaging Act 2011 came into operation on 1 December 2012, all tobacco products sold in Australia must be in plain packaging. This means that the only thing on packaging to distinguish one brand from another will be the brand and variant name in a standard colour, position, font size and style. This will have the practical effect of limiting the extent to which the exception in s.9(2) can be used.

Words, signs or symbols on standard business documents of a manufacturer, distributor or retailer of tobacco products are also not tobacco advertisements under the Act. For example, the standard words on invoices, statements, letterheads, business cards, cheques or in a manual used in the normal course of business are allowed.

Signage on the land or buildings occupied by a manufacturer of tobacco products is permitted.

However, an image (such as a photo or film) of tobacco company signage or of tobacco packaging would still be a tobacco advertisement under the Act – s.9(2) and s.9(3).

Management advertisements and availability of products

The Act exempts conduct required by other laws. For example, under company law, tobacco companies need to produce annual reports. These reports are permitted to mention brand names to the extent necessary to comply with the law.

Advertisements made for internal management reasons are also not tobacco advertisements under the Act as long as they do not promote smoking or a tobacco product. For example, advertisements for staff or calls for tenders that do not promote smoking or a tobacco product would not be tobacco advertisements.

A manufacturer, distributor or retailer of tobacco products is allowed to publish advertisements that say they have tobacco products available. However, any such advertisement must not state the brand name of any product or let any individual product be identified or promoted. For example, a retailer may advertise that they are a tobacconist and that they have cigars for sale, but not identify which brands of cigars.

Taking action to prevent a product from causing injury, including action to recall a product, or to advise defects, danger, procedures for disposal or repair, replacement or refund arrangements, do not constitute tobacco advertisements under the Act.

These exceptions are set out at s.9(3A).
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Non-tobacco product having the same name as a tobacco product

The Act makes an allowance for non-tobacco products that share a name with a tobacco product by coincidence. In this case, advertisements for the non-tobacco product are allowed under the Act – s.9(3B).

For example, Kent cigarettes have a name in common with a training institute in Sydney. The institute has no formal business relationship with the makers of Kent cigarettes. In this case, the Act ensures that advertisements for the Kent Institute are not tobacco advertisements and are allowed.

Anti-smoking advertisements

Advertisements that are clearly trying to deter people from using tobacco products are not tobacco advertisements under the Act – s.9(7) and as such, are allowed.

Trade communications

Under the Act, a tobacco advertisement has not been published if the advertisement went out solely to people involved in the manufacture, distribution or retailing of tobacco products – s.10(3).

For example, tobacco distributors may send lists of products to people they know to be tobacco retailers. In this case, the distributors would not have published an advertisement under the Act.
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Listings in telephone directories

Section 10(3A) makes it clear that putting the name of a manufacturer, distributor or retailer of tobacco products in a telephone book does not, of itself, amount to the publication of a tobacco advertisement.

Activities of exempt libraries

An ‘exempt library’ means a public library, a library of a tertiary educational institution or a government library. Under the Act, the normal activities of an ‘exempt’ library (loan of books for example) do not amount to publication of tobacco advertisements – s.10(4).

Acknowledgements of assistance or support

The publication of an acknowledgement of assistance or support does not amount to publication of a tobacco advertisement for the purposes of the Act, provided that it complies with the Regulation.

For example, if an acknowledgement of assistance or support is included in an annual report, the advertisement must not appear on the outside of the front or back cover, or on the spine.

It must be in the same typeface as, and in type not larger than, the generality of the other printed matter in the report. It must not include a trademark or logo. If there is more than one sponsor, the acknowledgement must only appear within a list of those sponsors.

The Regulation details a number of other conditions that apply in different circumstances. If more detailed information is required about how tobacco company sponsorship may be acknowledged under the Act, please refer to the Act and Regulation or seek legal advice.

Most states and territories have banned tobacco sponsorship. These bans override the less stringent Commonwealth laws. In some states and territories, health promotion sponsorship programs have replaced tobacco sponsorship. State and territory health departments can provide more information on the laws and any programs that apply. Refer to the Contact details section of this guide.
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Accidental or incidental advertising

The Act allows tobacco advertisements that accidentally or incidentally accompany other matter. Such advertisements are allowed only where the broadcaster or publisher receives no direct or indirect payment or other benefit for their publication – s.14 and s.19.

For example, under the Act, a film can include smoking as an incidental part of a dramatic sequence if it was not placed and funded by the tobacco industry. Other examples would include incidental descriptions of smoking in books, or mention of tobacco in news stories.

The issue of “accidental or incidental” publication of material that relates to tobacco products is complex. The Act limits the ability of tobacco companies to place paid advertisements. At the same time, it does not restrict or censor every film, program or printed work that depicts a person smoking.
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Point-of-sale advertising

‘Point-of-sale’ advertising refers to advertising that is displayed where tobacco products are sold. This includes places such as grocery stores, service stations, newsagents and tobacconists - s.16.

It is important to note that all states and territories have general tobacco point-of-sale laws. The Act is drafted so that point-of-sale advertising is permitted if it is allowed under the relevant state or territory law, and the advertising would have to comply with the state or territory law.

For advice on point-of-sale advertising restrictions in force in states and territories, contact the relevant state or territory health department. Refer to the Contact details section of this guide.

Internet point-of-sale advertising

As no state or territory has yet passed legislation that expressly deals with internet point-of-sale tobacco advertising, the Regulation currently governs this field - s.16A. The Regulation contains rules governing the format and content of internet point-of-sale tobacco advertising, including content which is permitted, required or prohibited from being included in internet point-of-sale advertising.

Internet point-of-sale tobacco advertisements that do not comply with the Regulation may constitute tobacco advertisements in breach of the Act.

The Department’s Guide to Internet Point-of-Sale Tobacco Advertising contains further information about the Regulation. It is available from the Department’s Tobacco Advertising webpage.
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Periodicals printed overseas

Periodicals (magazines for example) that are meant to be circulated mainly abroad may be allowed in Australia even if they contain tobacco advertisements – s.17(1).

Individuals to receive no benefit from publishing a tobacco advertisement

An individual may publish a tobacco advertisement if this is not done in the course of the manufacture, distribution or sale of tobacco products. The individual must have published the advertisement on his or her own initiative, and received no direct or indirect benefit (whether financial or not) for doing so – s.20. This exemption only applies to individuals and not corporations.

Broadcasts during overseas flights

It is an offence to broadcast or publish a tobacco advertisement on a domestic flight or on a domestic sector of an international flight. It is not an offence to publish a tobacco advertisement on a flight sector that starts or ends overseas – s.26A.

1Collins D and Lapsley H. (2008). The costs of tobacco, alcohol and illicit drug abuse to Australian society in 2004/05. P3 2625. Canberra: Department of Health and Ageing.
2US Department of Health and Human Services. The health consequences of involuntary exposure to tobacco smoke: A report of the Surgeon General. Atlanta, GA: US Department of Health and Human Services, Centers for Disease Control and Prevention, Coordinating Center for Health Promotion, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health; 2006. Available from: Centres for Disease Control and Prevention Website (This website link was valid at the time of submission)
3Australian Institute of Health and Welfare 2014. National Drug Strategy Household Survey detailed report 2013. Drug statistics series no. 28. Cat. No. PHE 183. Canberra: AIHW. Available from the AIHW website.
4The value of a penalty unit is given by s.4AA of the Crimes Act 1914. As at 31 July 2015, a penalty unit is $180.
5Section 4B(3) of the Crimes Act 1914 states that the penalty for a corporation may be up to five times that for an individual.


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