Tobacco Advertising Prohibition Act 1992
The object of the Tobacco Advertising Prohibition Act 1992 (the Act) is to limit the exposure of the public to messages and images that may persuade people 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.
Under 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).
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).
From 1 July 2017, the maximum penalty for an offence under the Act is $25,200 for an individual and $126,000 for a corporation. If the Department of Health considers that a potential breach has occurred, it may refer the matter to the Commonwealth Director of Public Prosecutions (CDPP) or the Australian Government Solicitor (AGS) for appropriate action.
The Act is an important element of an integrated package of tobacco control measures that have been introduced in Australia, including:
- the world-first tobacco plain packaging legislation, which took full effect from 1 December 2012;
- the updated and expanded health warnings: the Competition and Consumer (Tobacco) Information Standard 2011, which commenced on 1 January 2012 and took full effect from 1 December 2012, requires health warnings to cover at least 75 per cent of the front of most tobacco packaging, 90 per cent of the back of cigarette packaging and 75 per cent of the back of most other tobacco product packaging;
- record investments in anti-smoking social marketing campaigns;
- the 25 per cent tobacco excise increase in April 2010, and the five staged increases of 12.5 per cent in 2013, 2014, 2015, 2016 and 2017;
- four further increases in excise rates on tobacco and tobacco-related products of 12.5 per cent in September each year from 2018 until 2020;
- a reduction in duty free concessions for tobacco products; and
- stronger penalties for tobacco smuggling offences.
The Tobacco Advertising Prohibition Act 1992 also restricts tobacco advertising to the internet and other electronic media in Australia. It is 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.
The Act and the Tobacco Advertising Prohibition Regulation 1993 (the Regulation), which commenced on 6 September 2012, set out specific requirements regarding the content and format of internet point-of-sale tobacco advertisements. The Regulation aims to reduce the attractiveness and appeal of internet point-of-sale tobacco advertisements, particularly to young people. Broadly, 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.
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 Act can be submitted to the Department's Email: Tobacco Advertising at Department of Health.
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; and
- 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 CDDP or the AGS.
Complainants may provide feedback on the handling of a complaint via the Tobacco Advertising at Department of Health email.
Reporting requirements under section 34A of the Tobacco Advertising Prohibition Act 1992 (the Act)
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.
- Tobacco Advertising Prohibition Act 1992 Report under Section 34A for 2016
Further information about the Act is available in the “Easy guide to the Tobacco Advertising Prohibition Act 1992”, which is a plain english guide to the Act:
Further information about the requirements for internet point-of-sale tobacco advertising, is available in the following Guide to Internet Point-of-Sale Tobacco Advertising:
The checklist below is designed to assist retailers in ensuring internet point-of-sale advertising complies with the Tobacco Advertising Prohibition Regulation 1993 (the Regulation):
The health warnings required in internet point-of-sale tobacco advertisements are available for download here:
Health warning - Smoking harms unborn babies (Other 4827 KB large .tif file)
Health warning - Smoking causes blindness (Other 4914 KB large .tif file)
Health warning - Smoking causes peripheral vascular disease (Other 4895 KB large .tif file)
Health warning - Quitting will improve you health (Other 4855 KB large .tif file)
Health warning - Cigar smoking causes lung cancer (Other 3044 KB large .tif file)
Note: 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 the legislation
The Act is available on the Government’s ComLaw website at: Tobacco Advertising Prohibition Act 1992
The Regulation is available on the ComLaw website at: Tobacco Advertising Prohibition Regulation 1993
Enquiries about the Commonwealth’s tobacco advertising restrictions can be emailed to: Tobacco Advertising at Department of Health.