11.4 State and territory legislation

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Australian states and territories are able to enact regulations that are more restrictive than the Commonwealth national Tobacco Advertising Prohibition Act 1992 (TAP Act). To varying degrees all states and territories legislate controls on the advertising and promotion of tobacco products. Where the TAP Act does not restrict point-of-sale advertising and the display of tobacco in retail locations, the states and territories all have their own restrictions and controls. A summary of legislation for each state and territory follows. Table 11.4.1 at the end of this section provides an overview of state and territory legislation.

11.4.1 Australian Capital Territory

Advertising and promotion of tobacco is controlled by the Tobacco Act 1927 (ACT), including all amendments¹. The Act sets out strict requirements for how smoking products (tobacco and herbal smoking products) can be advertised and displayed.

A smoking advertisement is defined as anything (writing, sound or a picture, symbol, light or other visible device, object or sign) that a reasonable person would consider publicises or promotes:

• the purchase or use of a smoking product
• the trademark or brand name, or part of a trademark or brand name, of a smoking product.

Items that advertise or promote tobacco products or tobacco smoking are not permitted at point of sale. No gifts, rewards schemes or 'value-added' promotional items can be associated with the purchase of tobacco products. A tobacco product itself cannot be given away if this promotes the sale of a tobacco product. It is illegal to conduct a competition that promotes smoking or promotes a tobacco product. Examples of prohibited advertising include brand-name promotional material, and toys, novelty items or clothes with a tobacco name or logo.

Amendments made to the Act by the Tobacco Amendment Act 2008 (ACT) prohibited the sale of cigarette packets designed to be divided into portions containing fewer than 20 cigarettes each, commonly known as 'split packets', and prohibited the offer of customer rewards in association with the sale of smoking products. The Minister for Health was also given the power to declare that a smoking product is prohibited if it has a distinctive fruity, sweet or confectionery-like character, and the nature of the product or the product's package or packaging could be attractive to children.^{2 i}

11.4.1.1 Display of tobacco products

The 2008 amendments to the Tobacco Act 1927 (ACT) also introduced new restrictions banning the display of smoking products at point of sale. From 31 December 2010, all retailers will be required to store smoking products out of sight of customers.ⁱⁱ This provision applied to standard tobacconists from 1 January 2010, and from specialist tobacconists from 1 January 2011.ⁱⁱⁱ One point of sale is permitted per retail outlet. Licensed premises may have up to five points of sale.^iv Price tickets must comply with size and design requirements (they must use 12 point Times New Roman font, and be no larger than 15cm squared).

11.4.2 New South Wales

Two key pieces of legislation relate to the advertising and promotion of tobacco products in New South Wales: the Public Health (Tobacco) Act 2008 (NSW)³ and the Public Health (Tobacco) Regulation 2009.⁴ This Act incorporates the tobacco control elements of the NSW Public Health Act 1991 which operated prior to 2008.

These two pieces of legislation prohibit overt advertising of tobacco products and also regulate the display of tobacco products at point of sale. In addition, the Public Health (Tobacco) Act 2008 prohibits tobacco related promotions, sponsorships, competitions, incentive promotions, loyalty schemes and free sampling of tobacco.^v One point of sale per retail outlet is permitted.^vi Licensed premises may have one point of sale and one staff-operated vending machine.

11.4.2.1 Packaging

Uniquely and significantly, the 2009 New South Wales regulation acknowledges that images on the package itself constitute advertising. Limits on the maximum allowable size of a tobacco package to 1800 cubic centimetres^vii means that on-pack advertising is permitted only on carton-sized packages or smaller. The regulation also prohibits certain types of on-pack advertising elements including:^viii

• statements alluding to sporting, sexual or business success
• people or cartoon characters
• scenes, activities, words, representations or illustrations that have appeal to children or young persons
• holograms

Additionally, if a package containing tobacco products also contains within it any tobacco advertisement (not being an advertisement printed on the products themselves), the advertisement must also display a health warning.^ix

11.4.2.2 Display restrictions

Retailers other than NSW Department of Health approved specialist tobacconists were banned from displaying tobacco products at point of sale from 1 July 2010 (large retailers and tobacco vending machine operators were required to comply with the ban from 1 January 2010).^x Approved specialist tobacconists in New South Wales have until 1 July 2013 to comply with the full display ban and may display tobacco products, non-tobacco smoking products and smoking accessories in accordance with the regulations in the intervening period.^xi Either a single price board or price tickets may be displayed, but not both. Price tickets may not use more than two colours, and must be 35cm squared or less in area. The information that can be included on a price ticket is limited to the name of the product line, a bar code, the price and a symbol identifying the country of origin.^xii A health warning must be displayed at the point of sale and on any vending machine.^xiii

11.4.3 Northern Territory

Legislation and regulation pertaining to tobacco advertising in the Northern Territory falls under the Tobacco Control Act 2002 (NT)⁵ and the Tobacco Control Regulations⁶. The Act and Regulations were significantly amended by the Tobacco Control Legislation Amendment Act 2010 (NT).⁷

Tobacco advertising was banned from 31 May 2003. No tobacco advertisements of any type may be displayed, published or broadcast. All tobacco advertising at point-of-sale such as posters, backlit signs, desk pads, flags and floor stickers is also banned. Retail staff are not permitted to wear clothing or other items with tobacco logos or trademarks. Shops cannot be decorated in tobacco brand colours. Retailers cannot advertise brand names of cigarettes or the sale of cigarettes at discounted prices, including using expressions such as 'cheap smokes' or 'discount cigarettes'. All giveaways, competitions and other-value added marketing are prohibited.^xiv

Tobacco must be sold over the counter from a premises with a licence to sell tobacco products. This means that mobile cigarette 'girls and boys' who typically approach young people in nightclubs and pubs are not permitted.^xv

11.4.3.1 Display restrictions

Amendments to the Tobacco Control Act 2002 (NT) made by the Tobacco Control Legislation Amendment Act 2010 (NT) mean that the display of tobacco products by all retailers has been banned in the Northern Territory since 2 January 2011.^xvi Occupiers of premises from which tobacco products are sold must ensure the products cannot be seen from inside or outside the premises.^xvii One point of sale is permitted. Licensed venues may have one over-the-counter point of sale and one vending machine in each bar area of the premises. A health warning must be displayed at point of sale, including vending machines. Either a price board or shelf tickets may be displayed, not both.

11.4.4 Queensland

Tobacco advertising and promotion is controlled and restricted by the Tobacco and Other Smoking Products Act (Qld) 1998⁸ and the Tobacco and Other Smoking Products Regulations 2010.⁹ The Act prohibits tobacco advertising including any promotions, competitions, and product giveaways. This also extends to any images of the consumption of tobacco products at retail point-of-sale.

A review of Queensland's tobacco laws was carried out in early 2004. The review informed the drafting of new tobacco laws under the Tobacco and Other Smoking Products Amendment Bill 2004, which was passed by the Queensland Parliament on 11 November 2004.¹⁰ The new laws commenced in phases between 1 January 2005 and
1 July 2006 and include restrictions on how tobacco products can be displayed at retail outlets and a ban on tobacco advertising or competitions.

11.4.4.1 Display restrictions

An overview of the tobacco display laws which came into effect in Queensland on 31 December 2005 is as follows¹⁰:

• only one smoking product display per retail outlet is allowed and mandatory signs must be displayed
• smoking product displays can be no more than one square metre
• in tobacconists only, smoking product displays can be up to three square metres
• additional smoking products must be totally covered
• cigarette carton displays are prohibited
• display panels, tobacco special tickets and smoking products in shopper loyalty programs are prohibited
• unbranded advertising of smoking products (e.g. Cigarettes sold here) is prohibited
• a quit-smoking sign must be displayed at the main point of sale

On 29 April 2010, the Queensland Minister for Health announced that the Queensland Government would ban displays of smoking and smoking related products at all general retailers and specialist tobacconists by mid-2011.¹¹

11.4.5 South Australia

The two main pieces of legislation that affect the advertising and promotion of tobacco products in South Australia are the Tobacco Products Regulation Act 1997¹² and the Tobacco Products Regulations 2004¹³. All activities intended to publicise or promote the purchase or use of tobacco products are banned. This includes advertising and promotional material at point of sale.^xviii The offer of prizes, gifts or other benefits in association with the sale of a tobacco product is prohibited. From 1 June 2008, customer reward or loyalty schemes in connection with the sale of tobacco products were also prohibited.^xix

11.4.5.1 Mobile tobacco sales

Tobacco vendors typically dressed in bright tobacco company colours who approach young patrons in nightclubs—offering tobacco products for sale—had been a common form of promotion in South Australia. On 6 December 2004 the use of mobile displays such as tobacco trays was banned.

11.4.5.2 Split cigarette packets

The South Australian Government introduced a variation of the Tobacco Products Regulations 2004 to prohibit the sale of cigarette packets that are designed to be divided into portions that contain fewer than 20 cigarettes each, commonly known as 'split packets'. Such packages were declared prohibited via a notice in the South Australian Gazette on 9 November 2006 and the ban came into effect on 10 November 2006.¹⁴

11.4.5.3 Products appealing to children

On 1 November 2006, the South Australian Government banned the sale of tobacco products that have a distinctive fruity, sweet or confectionery character.¹⁵ (See Figure 11.4.1 for an example of banned product, the DJ Mix brand.) The display of fruit or confectionery flavoured cigarettes at point of sale, and the inclusion of such cigarettes on price tickets or price boards was banned with effect from 10 April 2008.^xx

 

11.4.5.4 Display of tobacco products

The number of tobacco points of sale per premises was limited on 31 March 2006, with all non liquor licensed premises limited to one point of sale and liquor licensed premises limited to a maximum of five points of sale.

Amendments to the Tobacco Products Regulations 2004 restricting the display of tobacco products came into operation on 1 November 2007. Tobacco displays must not exceed three square metres, and must carry an A3 (420 x 297mm) sized graphic warning of the effects of smoking adjacent to the packets. Alternatively, displays of one or less square metre must carry an A4 (297 x 210mm) size graphic warning. The display of cigarette cartons is banned, and only one packet or one picture of a packet may be displayed for each product line. Specialist tobacconists can use an additional one square metre for the display of cigars only. Prescribed shops, (those that have a floor area that exceeds 200 square metres) must ensure that tobacco displays cannot be visible from outside of their shops. Displays in large petrol stations must not be visible beyond the boundaries of the service station.¹⁶

Variations to retail tobacco licences commenced on 19 January 2009, preventing tobacco products from being displayed at booths, tents or other temporary structures or at points of sale that are available for not more than two weeks in a year. The licence conditions also prevent vendors from providing inducements to encourage young people to frequent the points of sale, inducements include furnishings and entertainment and signage is limited to only prescribed signage.

On 31 May 2010, the South Australian Minister for Health announced that the South Australian Government would introduce measures to ban the display of tobacco products at the point of sale by January 2012.¹⁷

11.4.6 Tasmania

The control of the marketing and promotion of tobacco products in Tasmania falls under the Public Health Act 1997 (Tas).¹⁸ In addition to banning overt advertising and promotion, including at point of sale, the Public Health Act 1997 contains restrictions on the display of tobacco products, including:

• items designed or marketed for use by children including confectionery being displayed within 75cm of tobacco products
• the display of one packet per product line to a maximum of 150 packets
• vending machines may have a maximum of 40 vending chips displaying images of tobacco products
• approved health warning notices are required to be displayed where tobacco products are displayed and on vending machines
• there are limitations on how price tickets and price information can be displayed.

From 1 February 2011, a complete ban on the display of tobacco products commenced (except for specialist tobacconists). Specialist tobacconists in Tasmania must confine displays to four square metres.

11.4.6.1 Displaying graphic warnings at tobacco display

In 2004 a statutory requirement was issued to all licensed tobacco retailers in Tasmania to display a specific graphic health warning on the retail tobacco display (as opposed to at the point of sale). The diseased mouth graphic warning is the same one as appears on the cigarette packets themselves (Figure 11.4.2). The regulatory system allows the point-of-display warnings to be varied in a flexible manner without legislative changes, meaning that the warning could be varied should the government require this.

 

One outcome of this requirement was that 40 Tasmanian retailers, including one of Australia's two major supermarket chains (Coles), voluntarily moved their tobacco products entirely out of public sight to avoid displaying the graphic warning. This unexpectedly provided evidence for the technical and financial feasibility of requiring all retailers to move their tobacco products out of sight.¹⁹ This measure was subsequently introduced and a complete ban on the display of tobacco products in retail outlets commenced in February 2011 (except for specialist tobacconists).

11.4.6.2 Pending legislative changes

On 30 August 2010, the Hon. Michelle O'Byrne, Minister for Health, released a discussion paper to further strengthen Tasmanian tobacco control laws.²⁰ The paper includes proposals that would:

• ban tobacco product vending machines
• ban or restrict specialist tobacconists' displays, and/or phase out of specialist tobacconists
• remove tobacco and tobacco products from reward schemes
• ban tobacco sales at all temporary events such as music, sport or art festivals or where the majority of patrons are likely to be under 18

Submissions on the discussion paper were due on 1 October 2010 and are still being considered at time of writing.

11.4.7 Victoria

Two pieces of legislation restrict the marketing and promotion of tobacco in Victoria, the Tobacco Act 1987 (Vic)²¹ and the Tobacco Regulations 2007 (Vic).²²

The Victorian Tobacco Act 1987 was the first legislation in Australia to ban advertising outdoors on billboards and shops, and was at the time one of the most far-reaching government tobacco control initiatives anywhere in the world.²³ While it didn't go so far as to ban advertising through sponsorship of sport, it did establish a health promotion levy that was used by the Victorian Health Promotion Foundation to offer sporting groups in the state alternative funding to promote health messages such as Quit and Sunsmart, a model shortly afterwards copied in South Australia and Western Australia—refer Section 15.2 Facts and Issues, 1995.²⁴

On 1 March 2006, significant amendments came into effect that strengthened restrictions on the sale and advertising of tobacco. In summary, the amendments affecting advertising and promotion included:²⁵

• banning smoking, the promotion of tobacco products and the sale of tobacco products at underage 'music/dance' events
• widening the definition of 'tobacco advertisement' to include non-branded advertising, buzz marketing (as defined by the Act) and the advertising of cigarette papers
• banning 'buzz marketing' and non-branded tobacco advertising

Further significant amendments to the Act were made in August 2009 with the passing of the Tobacco Amendment (Protection of Children) Act 2009 (Vic). The amendments provide for:

• a ban on the display of tobacco products at point of sale from 1 January 2011, with an exemption for certified 'specialist tobacconists'
• a prohibition on the sale of tobacco products from temporary outlets
• a power for the Minister for Health to ban the sale of certain tobacco products and packaging that appeal to young people.

11.4.7.1 Underage 'music/dance' events

An underage 'music/dance' event is defined in the Victorian legislation as an event that²⁶:

• involves the provision of music (whether live or recorded and whether for listening to or dancing to or both)
• is predominantly organised or intended for, or predominantly attended by persons under the age of 18 years
• is open to members of the public (whether with or without payment)
• takes place in any area or premises other than a private residence.

Examples of events that which are affected include:

• 'FReeZa'^xxi events
• 'Blue Light' discos^xxii
• underage events held at licensed premises
• school-run events.

All people who attend the event are prohibited from smoking, including adults and young people. This also applies to all outdoor areas of underage 'music/dance' events. Tobacco products cannot be sold at these events. Event organisers must ensure that cigarette vending machines, tobacco advertisements and tobacco displays are completely covered in an opaque material or removed while an underage 'music/dance' event is taking place.

11.4.7.2 Buzz marketing and non-branded advertising

The Victoria Department of Human Services defines buzz marketing as the use of colours, images and props to create an environment consistent with a brand's identity or reminiscent of previous tobacco advertising.²⁷ Generally, buzz marketing is undertaken in nightclubs, at dance events, fashion events, or other similar events. Since branded tobacco advertising is prohibited in shops that sell tobacco, many traditional advertisements have been replaced with non-branded 'suggestive' methods to promote tobacco use. Non-branded tobacco advertising includes backlit posters directly above cigarette displays, depicting images of smoking paraphernalia such as matches and lighters (Figure 11.4.3). Although these posters do not promote a particular brand of tobacco, they are attractive to the eye and may encourage and promote the consumption of tobacco. Non-branded tobacco advertisements are also banned outside of retail outlets. Additionally, advertisements of 'cheap' or 'discount' cigarettes are also prohibited.

 

11.4.7.3 Display restrictions

The Tobacco Act 1997 (Vic) includes restrictions on how tobacco products can be displayed. From 1 January 2011, tobacco products must be kept out of sight at all retail outlets other than certified specialist tobacconists and on-airport duty free outlets.^xxiii

Where displays are permitted, they must comply with the following restrictions:

• only one packet of each tobacco product line may be shown. Different size packages are not treated as different product lines
• cartons may not be displayed. An exception to this applies in the case of duty free outlets beyond the customs barrier at Melbourne Airport, which are permitted to display cigarette cartons
• price tickets and price boards are permitted subject to the restrictions outlined in the regulations as to the size, format and information that may be included
• the total display area for advertising tobacco products must not be larger than four square metres
• no lights or other accents are permitted as part of the display
• a black and white health warning/smoking cessation sign must be displayed either at the entrance or near the tobacco display.

11.4.8 Western Australia

In Western Australia, tobacco advertising and promotion is controlled through the Tobacco Products Control Act 2006 (WA)²⁸ and the Tobacco Products Control Regulations 2006 (WA).²⁹

The Tobacco Products Control Act 2006 (WA) repealed the 1990 Act.^xxiv The Tobacco Products Control Amendment Act 2009 (WA)³⁰ was assented to on 22 September 2009, and amended the Act to introduce new restrictions in specific places and on tobacco displays.

The Tobacco Products Control Act 2006 (WA) includes provisions that ban advertising, promotion and sponsorship. Advertising is banned at point of sale unless the advertisement only advises about the availability of tobacco for sale; advertising of any price discounting is not permitted. Prizes and competitions are banned and no free samples can be distributed. Mobile sellers, defined as people carrying tobacco products, are prohibited.^xxv Only one point of sale per retailer is permitted.^xxvi The sale of cigarettes in packets of fewer than 20 is prohibited.^xxvii Vending machines are permitted only in licensed premises or mining amenities.^xxviii

11.4.8.1 Restriction of tobacco product displays

Under the Tobacco Products Control Act 2006 (WA)²⁸ as amended by the Tobacco Products Control Amendment Act 2009,³⁰ the display of a tobacco product, package or smoking implement in retail premises other than specialist tobacco retail premises will be prohibited with effect from 22 September 2010.

11.4.8.2 Summary of national legislation restricting promotion of tobacco products

 

References

1. Tobacco Act 1927 (ACT). Available from: http://www.legislation.act.gov.au/a/1927-14/current/pdf/1927-14.pdf

2. Tobacco (Prohibited Smoking Products), 2009. Declaration no. 1 Department of Health ACT. Available from: http://www.legislation.act.gov.au/ni/2009-53/current/pdf/2009-53.pdf

3. Public Health (Tobacco) Act 2008 (NSW). Act no. 94 Available from: http://www.legislation.nsw.gov.au/viewtop/inforce/act+94+2008+FIRST+0+N/

4. Public Health (Tobacco) Regulation, 2009 (NSW). Regulation no.294 Department of Health NSW. Available from: http://www.legislation.nsw.gov.au/viewPublic Health (Tobacco) Regulation 2009top/inforce/subordleg+294+2009+FIRST+0+N/

5. Tobacco Control Act 2002 (NT). Available from: http://notes.nt.gov.au/dcm/legislat/Acts.nsf/84c76a0f7bf3fb726925649e001c03bb/f8c75880f46ac4dc69256c54007caa1a?OpenDocument&ExpandSection=4.1#_Section4.1

6. Tobacco Control Regulations, 2002 (NT). Available from: http://notes.nt.gov.au/dcm/legislat/Acts.nsf/82d4ce7bedc4293169256bf90000aa68/757df58e4f56552469256c8d000cdae6?OpenDocument

7. Tobacco Control Legislation Amendment Act (NT) 2010. Act no. 25 Available from: http://notes.nt.gov.au/dcm/legislat/Acts.nsf/84c76a0f7bf3fb726925649e001c03bb/6791e9c4441a82076925771b0004465c?OpenDocument

8. Tobacco and Other Smoking Products Act 1998 (Qld). Available from: http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/T/TobacoPrPrSuA98.pdf

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17. Government of South Australia. New measures to stub out smoking Media release. Government of South Australia, 10 May 2010 viewed July 2010. Available from: http://www.ministers.sa.gov.au/images/stories/mediareleasesMAY10/smoke-free.pdf

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24. Winstanley M, Woodward S and Walker N. Tobacco in Australia: facts and issues, 1995. 2nd edn. Carlton South: Victorian Smoking and Health Program, 1995. Available from: http://www.quit.org.au/quit/FandI/welcome.htm

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27. Department of Human Services. New tobacco laws: banning of 'buzz marketing' and non-branded tobacco advertising. Melbourne: Department of Human Services 2005, viewed 22 April 2007. Available from: http://www.health.vic.gov.au/tobaccoreforms/downloads/buzz_marketing_factsheet.pdf

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