11.3 Federal legislation

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  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 federal 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 The Tobacco Products Advertisements (Prohibition) Act 1989 was repealed in December 1992 by the Tobacco Advertising Prohibition Act 1992 (TAP Act) which came into effect on July 1, 1993.30

11.3.1 Tobacco Advertising Prohibition Act 1992

The Tobacco Advertising Prohibition Act 1992[4] was introduced to provide a national standard for tobacco advertising. The objectives of the TAP Act are to:

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

a) to start smoking, or to continue smoking; or

b) to use, or to continue using, tobacco products.

2. To 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:

a) smoking

b) the purchase or use of a tobacco product or a range of tobacco products

c) the whole or a part of a trade mark that is registered under the Trade Marks Act 1955 in respect of goods that are or include tobacco products

d) 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

e) the whole or a part of the name of a person:
i. who is a manufacturer of tobacco products and
ii. whose name appears on, or on the packaging of, some or all of those products

f) 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, advertising on tickets, 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 promoted via direct mail, the internet and at the point of sale.31 In circumstances where state or territory legislation enforces more restrictive practices than the Commonwealth 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 Tobacco advertising permitted under the TAP Act

All tobacco advertising and sponsorship was completely banned, with limited exceptions, by the passage of the TAP Act. A tobacco advertisement may be broadcast or published if it is accidental or incidental to the matter being broadcast. Individuals who do not receive any benefit from broadcasting a tobacco advertisement are permitted to do so. For example, individuals may wear clothing 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 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 including32:

• Australian Formula One Grand Prix
• Rally Australia
• Australian Ladies Masters Golf
• Whitbread Round the World Yacht Race
• America's Cup Challenge (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.33 As of October 2006, no further events were permitted to display tobacco industry sponsorship. 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.34 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
• Motorcycle Grand Prix
• Formula One Grand Prix

Both the Motorcycle and Formula One Grand Prix continued to carry tobacco sponsorship until the October 1, 2006 deadline.35

At the 2007 Formula One Grand Prix in Melbourne the Ferrari team was the only team to continue to be sponsored by a tobacco company, the Philip Morris 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 bar code (Figure 11.1). 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.36 Australian Formula One viewers are exposed to this marketing through television broadcasts and would be able to surmise that the white bar code is a substitute for the Marlboro logo.

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:

a) the number and nature of any contraventions of the Act occurring in the preceding 12 months

b) action taken by the Minister or a Commonwealth agency in response to each contravention

The report is presented annually to Parliament and currently only 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 TAP 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 review by The Cancer Council Australia (supported by other health groups) outlined that while the TAP Act has been successful in limiting public exposure to traditional forms of tobacco advertising, it has been less effective in countering other forms of marketing.37 These 'below-the-line' forms of tobacco marketing include internet marketing, sales promotions at public events, point-of-sale advertising, 'guerrilla marketing' and text-message promotions.38

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.39 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 were40:

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

To the dismay of many in the Australian public health community, 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.41 As a result, no changes to the TAP Act resulted from the review.