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 discoursePolitical comments by media, manufacturers, distributors or retailers of tobacco products are not tobacco advertisements if they only relate to ‘government or political matters’ and don’t promote smoking, a particular tobacco product or range of tobacco products – s.9(1A).
‘Government or political matters’ is a term 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.
Words on products, packaging, business documents and premisesThe words, signs or symbols on a tobacco product or its packaging are not tobacco advertisements under the Act.
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 productsThe 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, an advertisement for staff or a call for tenders that does 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 which brands of cigars.
Advertisements are allowed 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.
These exceptions are set out at s.9(3A).
Non-tobacco product having the same name as a tobacco productThe 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.
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Anti-smokingAdvertisements 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 communicationsUnder 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.
Listings in telephone directoriesSection 10(3A) makes it clear that putting the name of a manufacturer, distributor or retailer of tobacco products in a telephone book does not amount to the publication of a tobacco advertisement.
Activities of exempt librariesAn ‘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).
Sponsorship – acknowledgements of assistance or supportWhile tobacco advertisements at sporting or cultural events are banned under the Act, tobacco companies may still sponsor these activities although they can only receive limited recognition. The Act has regulations called Tobacco Advertising Prohibition Regulations. The limits of what is allowed are set out in the Regulations – s.10(5) and rr. 3, 4 and 5.
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. 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 Regulations detail 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 Regulations or seek legal advice.
Most States and Territories have banned tobacco sponsorship. These bans override more lenient Commonwealth laws. In some States, 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. Contact details are on page 9.
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Accidental or incidental advertisingThe Act allows tobacco advertisements that accidentally or incidentally accompany other matters. Such advertisements are allowed only where the broadcaster or publisher receives no direct or indirect payment or other benefit for their appearance – s.14 and s.19.
For example, under the Act, a film can include smoking as 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, photos of people smoking in magazines, or mention of tobacco products in news stories.
The issue of “accidental or incidental” tobacco advertising 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.
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.
All States and Territories have tobacco point of sale laws. The Act is drafted so that point of sale advertising is permitted if it is permitted under the relevant 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. Contact details are on page 9.
Periodicals printed overseasPeriodicals (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).
Australian sporting and cultural events of international significanceFrom 1 October 2006, the Minister is no longer able to exempt significant international events from the ban on tobacco advertising – s.18.
Individuals to receive no benefit from publishing a tobacco advertisementAn individual may publish a tobacco advertisement if it is not in the course of the manufacture, distribution or sale of tobacco products. The individual just have published on his or her own initiative and received no benefit in doing so – s.20. This exemption only applies to individuals and not corporations.
Broadcasts during overseas flightsIt 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.
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Internet advertisingThe advertising, promotion of smoking and ease of access to products on the Internet are powerful influences that increase the use of tobacco products, particularly by children and young people.
The Act extends to electronic media such as the Internet, limiting exposure to material that may promote the uptake or continuation of smoking, or the use of tobacco products. Section 15 of the Act prohibits the publication of tobacco advertisements. This includes prohibiting the publication of tobacco advertisements via the Internet, e-mail or other electronic means.
The reach of Commonwealth legislationSo as not to exceed the legal powers provided by the Constitution, the Act limits itself to apply only to:
- publications made by ‘regulated corporations’
- publications made in the course of, or for the purposes of, ‘regulated trade or commerce’.
- bodies corporate which are holding companies of, or controlled by a s.51(xx) corporation
- partnerships in which at least one partner is a s.51(xx) corporation or a body corporate referred to above
- bodies corporate or unincorporated bodies established by a law of the Commonwealth.
- between Australia and places outside Australia
- between States, or between a State and Territory, or between two Territories
- by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.
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