11.3 Commonwealth (national) legislation

Last updated: October 2016 

Suggested citation: Grace, C. 11.3 Commonwealth (national) legislation. In Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2016. Available from: http://www.tobaccoinaustralia.org.au/chapter-11-advertising/11-3-commonwealth-legislation

Authors who contributed to previous versions of this section include Chapman, S., Freeman, B., & Winstanley M. 

Advertising of tobacco products in Australia has been progressively restricted since the 1970s. As described earlier, cigarette advertising bans on radio and television have been in place since 1976. In 1989, the Australian Government introduced the Tobacco Products Advertisements (Prohibition) Act 1989, which prohibited advertising of tobacco products in all newspapers and magazines, effective from December 1990.

The Tobacco Products Advertisements (Prohibition) Act 1989, in conjunction with the amended Broadcasting Act 1942, prohibited direct advertising in the print and broadcast media. The Tobacco Products Advertisements (Prohibition) Act 1989 was repealed in December 1992 by the Tobacco Advertising Prohibition Act 1992 (TAP Act) that came into effect on 1 July 1993.1

In 2007, the Australian Government published a guide to the TAP Act that outlines what is and is not allowed under the Act.2 The guide is designed to assist people who sell tobacco products (such as tobacconists, service stations and grocery shop owners), those whose work involves publishing or broadcasting (such as advertising agents and people who work in the media), and people who deal with the tobacco industry (such as sporting or cultural groups seeking sponsorship).

11.3.1 Tobacco Advertising Prohibition Act 1992

The Tobacco Advertising Prohibition Act 1992i was introduced to provide a national standard for tobacco advertising. The objectives of the TAP Act are:

1. Limit the exposure of the public to messages and images that may persuade them:

  1. to start smoking, or to continue smoking or
  2. to use, or to continue using, tobacco products.

2. Improve public health.

The TAP Act defines an advertisement as any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of two or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

 

  1. smoking
  2. the purchase or use of a tobacco product or a range of tobacco products
  3. the whole or a part of a trademark that is registered under the Trade Marks Act 1955 in respect of goods that are or include tobacco products
  4. the whole or a part of a design that is registered under the Designs Act 2003 in relation to products that are or include tobacco products
  5. the whole or a part of the name of a person:
  6. who is a manufacturer of tobacco products and
  7. whose name appears on, or on the packaging of, some or all of those products
  8. any other words (for example the whole or a part of a brand name) or designs, or combination of words and designs, that are closely associated with a tobacco product or a range of tobacco products (whether also closely associated with other kinds of products).

The TAP Act imposes restrictions on the broadcasting and publishing of tobacco advertisements. The prohibitions cover print media advertising; advertisements in the form of films, videos, television or radio and the internet; advertising on tickets; advertising of sponsorship; the sale or supply of any item containing a tobacco advertisement; and outdoor advertising on billboards or public transport. Under the TAP Act tobacco can still be sold via direct mail, the Internet and at points of sale, however the TAP Act and state and territory legislation impose restrictions on the advertising and promotion of tobacco.3 In circumstances where state or territory legislation enforces more restrictive practices than the Commonwealth (national) legislation, the state or territory legislation takes precedence. The TAP Act has undergone several amendments to further restrict tobacco advertising and sponsorship.

11.3.1.1 Advertising permitted under the Tobacco Advertising Prohibition Act

All tobacco advertising and sponsorship was completely banned, with limited exceptions, by the passage of the TAP Act. 'Accidental or incidental' publication of tobacco advertisements is permitted if the advertisement is an accidental or incidental accompaniment to the publication of other matter and the publisher does not receive any direct or indirect benefit (whether financial or not) for publishing the advertisement (in addition to any direct or indirect benefit that the person receives for publishing the other matter).

An individual may publish a tobacco advertisement if it is not in the course of the manufacture, distribution or sale of tobacco products. The individual must have published on his or her own initiative and received no benefit in doing so. For example, individuals not associated with tobacco companies may wear clothing produced overseas that is branded with tobacco industry trademarks without breaching the Act.

Advertising exceptions also include advertisements broadcast or published:

  • during political discourse
  • at point of sale, unless regulated by the state or territory
  • in periodicals printed outside Australia and not principally designed for Australia
  • as information in trade publications (those circulated only to the tobacco or tobacco retailing sectors)
  • on aircraft during international flights.

When the TAP Act was originally passed, the then Minister for Health and Aged Care was given discretionary power to grant sponsorship exemptions to events that were of international importance that would otherwise not be held in Australia if sponsorship were banned. Several exemptions were initially granted including:4

  • Formula 1 Australian Grand Prix
  • Rally Australia
  • Australian Ladies Masters Golf
  • Whitbread Round the World Yacht Race
  • America's Cup (sailing)
  • Indy Car Grand Prix
  • Australian Motorcycle Grand Prix
  • Winfield Cup (rugby league)
  • Benson and Hedges Cup (cricket).

11.3.2 Tobacco Advertising Prohibition Amendment Act 2000

Under the Tobacco Advertising Prohibition Amendment Act 2000, passed in November 2000, the original discretion which permitted the minister to grant an exemption for international sporting and cultural events was revoked.5 As of October 2006, no further events were permitted to display tobacco brand advertising. Furthermore, no new events were granted an exemption as of October 2000. This amendment made Australia one of the first countries to legislate for an end to tobacco sponsorship of international sporting and cultural events.6 At the time of the amendment in 2000, there were five events of international significance that were permitted to carry tobacco sponsorship when they were staged in Australia. They were the:

  • Ladies Masters (golf)
  • Indy 300
  • Rally Australia
  • Australian Motorcycle Grand Prix
  • Formula 1 Australian Grand Prix.

Both the motorcycle and formula 1 grands prix continued to carry tobacco sponsorship until the 1 October 2006 deadline.7

At the 2007 Formula 1 Australian Grand Prix in Melbourne the Ferrari team was the only team to continue to be sponsored by a tobacco company, in this case Philip Morris using the brand Marlboro. While the Ferrari team was not permitted to exhibit any of this sponsorship, the car and driver uniforms were 'branded' with a distinctive white barcode. The race team was therefore effectively promoting the well-known red and white colours of Marlboro, illustrating how advertising can still continue to function after a ban. Subsequent races in other nations where tobacco sponsorship is not prohibited saw the 'official' Marlboro logo back on the car.8 Australian formula 1 viewers are exposed to this marketing through television broadcasts.

Amid continuing controversy that the white barcode was subliminal advertising for Marlboro, Ferrari announced that it would be removed from cars as of the fifth race, the Barcelona Grand Prix, of the 2010 racing season.9 The bar code would remain on the driver and team uniforms for the remainder of the 2010 racing season. In July 2010, Ferrari unveiled a new logo without the controversial barcode design. The new logo was to be used on all cars and uniforms for the 2011 season and the team would continue to be called Scuderia Ferrari Marlboro. Some blog commentators suggested this new logo was suggestive of the iconic red chevron found on Marlboro packages.

The 2000 amendment also required reporting by the health minister of any contraventions of the TAP Act to parliament. Specifically, the amendment requires that a report be prepared on:

  1. the number and nature of any contraventions of the Act occurring in the preceding 12 months
  2. action taken by the minister or a Commonwealth (national) agency in response to each contravention.

The report is presented annually to parliament and contains information regarding prosecutions under the TAP Act. The report does not currently include summaries of received complaints or of advertisements that are found in breach of the TAP Act but not subsequently prosecuted. A sample report can be found in Attachment 11.1.

11.3.3 Review of the Tobacco Advertising Prohibition Act

A review of the TAP Act was announced by Trish Worth, Parliamentary Secretary to the Federal Minister for Health and Ageing on May 31, 2002. An in-depth submission to the Australian Government Department of Health and Ageing review by the Cancer Council Australia (supported by other health groups) outlined that while the TAP Act had been successful in limiting public exposure to traditional forms of tobacco advertising, it had been less effective in countering other forms of marketing.10 These 'below-the-line' forms of tobacco marketing included social networking sites, sales promotions at public events, point-of-sale advertising, 'guerrilla marketing' and text-message promotions.11

During the time of the review, the Senate Community Affairs Legislation Committee issued a report, Tobacco Advertising Prohibition, in September 2004, which recommended that changes be made to strengthen the TAP Act, particularly in the areas of film, internet and misleading promotions.12 The Tobacco Advertising Prohibition (Film, Internet and Misleading Promotion) Amendment Bill 2004 served as a proposed draft of these changes. The objectives of the bill were to:13

  • ensure that the intent and operation of the TAP Act maintained pace with technological advances in advertising and remained current and effective by adding Internet advertising to the means of tobacco advertising which are prohibited
  • prohibit the offering for sale of tobacco products on the Internet
  • prohibit the use of certain words in advertising which are misleading, deceptive and are not conducive to public health.

In 2005 the Australian Government Department of Health issued a response to the 2002 review and concluded that the TAP Act was currently working well to protect the Australian public from advertising messages and the gains made by making amendments to the Act would be insignificant.14 As a result, no changes to the TAP Act resulted from the review.

11.3.4 National Preventative Health Strategy

The launch of the National Preventative Health Strategy on 1 September 2009 by the Minister for Health and Ageing, the Hon. Nicola Roxon MP, offered another opportunity to recommend significant changes to the TAP Act. The Strategy provides a blueprint for tackling the burden of chronic disease caused by obesity, tobacco and excessive consumption of alcohol. It is directed at primary prevention and addresses all relevant arms of policy and all available points of leverage, in both the health and non-health sectors. The Strategy comprises three parts: an overview; a roadmap for action; and technical papers focused on the three key areas of obesity, tobacco15 and alcohol.

The roadmap for action included the following recommendations to strengthen restrictions on tobacco advertising:16

  • Eliminate promotion of tobacco products through design of packaging
  • Legislate to eliminate all remaining forms of promotion including advertising of price specials, public relations activities, payments to retailers and proprietors of hospitality venues, promotion through packaging and, as far as feasible, through new and emerging forms of media
  • Regulate to require mandatory reporting of amounts spent on any form of promotion – on payments to public relations companies or any other third parties, as well as details of any other promotional expenditure
  • Amend legislation to ensure that tobacco is out-of-sight in retail outlets in all jurisdictions
  • Make smoking a 'classifiable element' in movies and video games.

On 11 May 2010 the Minister for Health and Ageing, the Hon. Nicola Roxon MP, released Taking Preventative Action, the government's response to the report of the National Preventative Health Taskforce.17 The Australian Government responded to each of the recommendations made by the taskforce and this included the announcement of major reforms to further restrict tobacco advertising and promotion.17 Specifically a commitment was made to strengthen tobacco advertising bans by the following actions:

  • developing legislation to introduce mandatory plain packaging of tobacco products from 1 January 2012 with full implementation from 1 July 2012 (see section 11.6.4 for a complete review of plain packaging including the proposed legislation)
  • amending the TAP Act to clarify that advertisements published via the Internet are prohibited
  • introducing legislation to restrict Australian internet advertising of tobacco products, bringing the Internet – and other electronic media – into line with restrictions in other media
  • working with states and territories to develop an action plan for ending other forms of tobacco promotion, and for possible mandatory reporting of promotion expenditure, in the next iteration of the National Tobacco Strategy.

The Australian Government did not support additional recommendations to ban all retail tobacco displays at the national level and to include smoking as a classifiable element in movies and games at that time.

The current provisions restricting online advertising of tobacco products were introduced by the ALP with the enactment of the Tobacco Advertising Prohibition Amendment Act 2012 (Cth) (‘TAP Amendment Act’).18 These laws were enacted as part of the Government’s broader commitments on tobacco reform, but more specifically, due to the recognition that ambiguity existed as to how the TAP Act applied to online advertising and whether or not online advertising of tobacco products was permitted.

A Regulatory Impact Statement (‘RIS’) was carried out by the Centre for International Economics which included a consultation phase with stakeholders. The TAP Amendment Act progressed under the following timeline:

  • introduced to Parliament by the ALP on 17 November 2010;
  • introduced to the Senate on 23 March 2011;
  • received royal assent on 6 March 2012; and
  • the online advertising provisions commenced operation on 6 September 2012.

As a general rule, it is now an offence to publish a tobacco advertisement online. There are, however, limited circumstances in which it will not be an offence to publish a tobacco advertisement online. The main circumstances in which a tobacco advertisement can be legally published online is where the advertisement is accompanied by facilities for the purchase of tobacco products and complies with the strict provisions on online point of sale advertising.

Given the international nature of internet advertising, the TAP Act does not cover circumstances where the advertisement is published/uploaded from outside Australia and the publisher has no “Australian Link” and has not acted jointly with or assisted another publisher with an “Australian Link”.

 

  

 

References

1. Chapman S. Federal legislation at a glance. Tobacco Control Supersite. Sydney: The University of Sydney 2010, viewed 29 September 2010. Available from: http://tobacco.health.usyd.edu.au/federal-legislation/

2. Department of Health and Ageing. Easy guide to the Tobacco Advertising Prohibition Act 1992. Canberra: Australian Governement Department of Health and Ageing 2007, viewed 15 August 2010. Available from: http://www.health.gov.au/internet/main/publishing.nsf/Content/355399AFA90CFB88CA25734F0008A847/$File/prohibition-act.pdf

3. Quit South Australia. Tobacco and the law. Adelaide: Quit South Australia 2007, viewed 7 May 2007. Available from: http://www.quitsa.org.au/cms_resources/documents/infosheet_tobacco_law.pdf

4. Meade A. Tobacco ad bans a threat to sport. Sydney Morning Herald, Sydney 1994:1 Jun.

5. Tobacco Advertising Prohibition Amendment Act 2000 (Cth). No 135 Available from: http://scaletext.law.gov.au/html/comact/10/6249/top.htm

6. Tobacco Advertising Prohibition Act 1992 (Cth). No. 218 Available from: http://www.austlii.edu.au/au/legis/cth/consol_act/tapa1992314/

7. Pyne C. Tobacco advertising banned at Australian sports Media release. Canberra: Ageing, AGDoHa, 29 September 2006 viewed September 2006.

8. Spurgeon B. Formula One: a view from the paddock. A new art to F1 photograph. New York: New York Times Blogs 2007, viewed 6 May 2007. Available from: http://blogs.iht.com/tribtalk/sports/f1/?p=258

9. Baldwin A. Ferrari remove bar code livery from F1 cars. Reuters, 2007:7 May. Available from: http://in.reuters.com/article/idINIndia-48292720100506

10. VicHealth Centre for Tobacco Control Cancer Council Victoria. Submission to the Commonwealth Department of Health and Ageing review of the Tobacco Advertising Prohibition Act 1992. Melbourne: Cancer Council Australia, 2003.

11. Cancer Council New South Wales. Bad news for TAP Act Media release. Sydney: Jul 2005 viewed 1 May 2007. Available from: http://www.cancercouncil.com.au/editorial.asp?pageid=2063

12. Senate Community Affairs Legislation Committee Secretariat. Tobacco advertising prohibition. Canberra: Parliament of the Commonwealth of Australia, 2004. Available from: http://www.aph.gov.au/senate/committee/clac_ctte/completed_inquiries/2002-04/tob_adv_proh/report/report.pdf

13. Tobacco Advertising Prohibition (Film, Internet and Misleading Promotion) Amendment Bill, 2004, The Parliament of the Commonwealth of Australia, The Senate, Available from: http://www.aph.gov.au/SENATE/committee/clac_ctte/completed_inquiries/2002-04/tob_adv_proh/documents_tor/exp_draft_tob_advert_bill.pdf

14. Australian Government Department of Health and Ageing. Review of the Tobacco Advertising Prohibition Act 1992. Canberra: Australian Government Department of Health and Ageing, 2005. Available from: http://www.health.gov.au/internet/wcms/publishing.nsf/Content/health-pubhlth-strateg-drugs-tobacco-consult-index.htm

15. Tobacco Working Group. Technical report no. 2. Tobacco in Australia: making smoking history. Canberra: National Preventative Health Taskforce, 2008. Available from: http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/tech-tobacco

16. Preventative Health Taskforce. Australia: the healthiest country by 2020. Preventative Health Taskforce: Commonwealth of Australia 2008, Last modified 21 May 2008 viewed 10 June 2008. Available from: http://www.preventativehealth.org.au/internet/preventativehealth/publishing.nsf/Content/discussion-healthiest

17. Australian Government. Taking preventative action: Government's response to Australia: the healthiest country by 2020. Canberra: Department of Health and Ageing, 2010. Available from: http://yourhealth.gov.au/internet/yourhealth/publishing.nsf/Content/report-preventativehealthcare

18. Australian Government. Tobacco Advertising Prohibition Amendment Act 2012. Available from:  https://www.legislation.gov.au/Details/C2012A00005

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