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Tobacco advertising

Legislation restricting the publication and broadcasting of tobacco advertising is a key tobacco control measure for reducing smoking rates in Australia.

In April 2010, the Australian Government announced that it would extend existing restrictions to internet advertising of tobacco products.

The Government’s other recent initiatives to reduce smoking and its harmful effects include:

• the 25 per cent tobacco excise increase in April 2010;
• more than AUD $135 million in investment in anti-smoking social marketing campaigns;
• the extended listing of nicotine replacement therapies and other smoking cessation supports on the PBS;
• record investments (about AUD$100 million) in support for Aboriginal and Torres Strait Islander communities to reduce smoking rates;
• a reduction in the duty free allowance for tobacco products from 250g to 50g per person, from 1 September 2012;
• stronger penalties for people convicted of tobacco smuggling offences; and
• plain packaging of tobacco products and expanded graphic health warnings from 1 December 2012.

Tobacco Advertising Prohibition Act 1992

Under the Tobacco Advertising Prohibition Act 1992 (The Act), it is an offence for a corporation to publish or broadcast a tobacco advertisement unless one of the limited exceptions under the Act applies (section 15)¹.

The object of the Act is to limit the exposure of the public to messages and images that may persuade them to start or continue smoking or using tobacco products.

The Act defines ‘tobacco advertisement’ more broadly than the everyday meaning of the term. Section 9 of the Act defines a ‘tobacco advertisement’ to be any writing, still or moving picture, sign, symbol or other visual image that gives publicity to, or otherwise promotes or is intended to promote, smoking or the purchase or use of tobacco products.

Key exceptions to the general restriction on tobacco advertising in the Act include:

• section 9(1A) – political discourse
• section 9(7) – anti-smoking advertisements
• section 10(3) – tobacco trade communications
• sections 14 and 19 – accidental or incidental broadcast or publication; and
• section 16 – point-of-sale advertising (although point-of-sale advertising is stringently regulated by State and Territory legislation).

The maximum penalty for an offence against the Act is $20,400 for an individual and $102,000 for a corporation. If the Department considers that a potential breach has occurred, it has the option of referring the matter to the AFP who may, in turn, refer the matter to the Commonwealth Director of Public Prosecutions (CDPP).

Internet advertising

From 6 September 2012, the Act makes it an offence for any person to publish tobacco advertising on the internet or other electronic media in Australia – for example, via mobile phone, unless certain limited exceptions apply (section 15A).

Internet point-of-sale tobacco advertising

A key exception allows internet point-of-sale tobacco advertising, provided that it complies with State or Territory legislation that expressly deals with internet point-of-sale tobacco advertising or, in the absence of such legislation, Australian Government regulations (section 16A). States and Territories have not yet enacted legislation expressly dealing with internet point-of-sale tobacco advertising.

Australian Government regulations commencing on 6 September 2012 set out specific requirements regarding the content and format of internet point-of-sale tobacco advertisements. Essentially, advertisements need to be presented in a plain, text-only format (i.e. no product images) with, among other things, graphic health warnings and warnings about age restrictions on tobacco sales.

The aim of the regulations is to reduce the attractiveness and appeal of internet point-of-sale tobacco advertisements.

How to make a complaint about the Tobacco Advertising Prohibition Act 1992 (The Act)

The Department conducts investigations into potential breaches as part of its general role in administering the Act.

Complaints about potential breaches of the Tobacco Advertising Prohibition Act can be submitted to the Department's Email: Tobacco Advertising at Department of Health and Ageing.

Following receipt of a complaint, an acknowledgement will be sent to the complainant.

The Department’s approach to enforcing the Act is as follows:

• the Department investigates all complaints about alleged breaches of the Act;
• the Department will first assess whether the advertising in question constitutes a tobacco advertisement as defined by the Act;
• if so, the Department then assesses whether any of the exceptions in the Act apply (see above);
• if the Department concludes that the advertising is likely to breach the Act (that is, it falls within the definition of tobacco advertising in the Act, and none of the exceptions apply), and the breach appears to be inadvertent, then the Department writes to the advertiser requesting that the advertising be withdrawn and seeking an assurance that the advertiser will not breach the Act again in the future;
• in most cases, the advertisers comply with this request;
• however, on the rare occasion that an advertiser persists with conduct that is likely to breach the Act, or a breach is significant and intentional rather than inadvertent, the matter may be referred to the Australian Federal Police.

Complainants will receive notification of the outcome of their compliant once the matter is finalised.

Complainants may provide feedback on the handling of a complaint via the Tobacco Advertising at Department of Health and Ageing email.

Reporting requirements under section 34A of the Tobacco Advertising Prohibition Act 1992

Section 34A of the Act requires a report to be prepared each year on contraventions of the Act. The Minister must table the report in Parliament.

For a contravention of the Act to be established, there must be a successful prosecution.

• Report under section 34A for 2011

Further information

Further information about the Act is available in the Easy Guide to the Tobacco Advertising Prohibition Act 1992 (PDF 482 KB), Easy Guide to the Tobacco Advertising Prohibition Act 1992 (HTML) which is a plain English guide to the Act.

Further information about the new requirements for internet point-of-sale tobacco advertising, is available in the following Guide to Internet Point-of-Sale Tobacco Advertising.
Guide to Internet point of sale tobacco advertising regulations (PDF 421 KB) , Guide to Internet point of sale tobacco advertising regulations (HTML)

A checklist designed to assist retailers in ensuring internet point-of-sale advertising complies with the Tobacco Advertising Prohibition Amendment Regulation 2012 is available at: Checklist for Internet Point-of-Sale Tobacco Advertising.

Checklist for internet point-of-sale tobacco advertising (PDF 196 KB)
Checklist for internet point-of-sale tobacco advertising (HTML)

The health warnings required in internet point-of-sale tobacco advertisements are available for download here
Health warnings for internet point-of-sale tobacco advertisements - Image1 (Other 4827 KB large .tif file)
Health warnings for internet point-of-sale tobacco advertisements - Image2 (Other 4914 KB large .tif file)
Health warnings for internet point-of-sale tobacco advertisements - Image3 (Other 4895 KB large .tif file)
Health warnings for internet point-of-sale tobacco advertisements - Image4 (Other 4855 KB large .tif file)
Health warnings for internet point-of-sale tobacco advertisements - Image5 (Other 3044 KB large .tif file)

You should note that these images are the subject of copyright (both Commonwealth of Australia, and Quit Victoria), and are provided for the specific purpose of enabling internet tobacco retailers to display the health warnings in their internet point-of-sale tobacco advertisements, as required under the regulations. No other use is permitted.

Obtaining copies of these amendments and the existing legislation The amendments to the Act are available on the Government’s ComLaw website at:
Tobacco Advertising Prohibition Amendment Act 2012

The amendments to the regulations are also available on the ComLaw web site at:
Tobacco Advertising Prohibition Amendment Regulation 2012 (No. 1)

Copies of the existing Act and the existing Tobacco Advertising Prohibition Regulations 1993 are available on the ComLaw website at the following links:
Tobacco Advertising Prohibition Act 1992

Tobacco Advertising Prohibition Regulations

Note: updated compilations of the Act and the Regulations will be published in early September 2012. The compilations will incorporate the above amendments.

Enquiries

Enquiries about the Commonwealth’s tobacco advertising restrictions can be emailed to the Department at: Tobacco Advertising at Department of Health and Ageing .

¹Other offences included in section 15 prohibit publishing a tobacco advertisement in the course of, or for the purposes of, regulated trade or commerce; and prohibit publishing a tobacco advertisement in a Territory, other than the ACT, NT or Norfolk Island.