11.4 State and territory legislation

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States and territories are able to enact regulations that are more rigorous than the 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 below. Table 3 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, including all amendments.[5] Under the ACT's Tobacco Act 1927, there are strict requirements about how smoking products (tobacco and herbal smoking products) can be advertised and displayed.

A tobacco advertisement is defined as anything (writing, sound, 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 tobacco product
• the trademark or brand name, or part of a trademark or brand name, of a tobacco product

Items which advertise or promote tobacco products or tobacco smoking are not permitted at point-of-sale. No gifts 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.

11.4.1.1 Display of tobacco products

Tobacco products or packaging cannot be displayed in a way which together forms a tobacco advertisement. Retailers are permitted to display a sign outside the shop or on the door that indicates tobacco products are sold provided the sign does not contain a trademark or name of a tobacco product or tobacco manufacturer or distributor.42 Display regulations include:

• tobacco products may only be displayed behind the sales counter (not on the counter)
• the display must be at least one metre from the customer's side of the sales area
• only one facing of each product line of cigarettes can be displayed
• the display of cigarette cartons is not permitted
• only one point-of-sale for tobacco products is permitted in most retail outlets; up to five points of sale are permitted in liquor-licensed outlets
• a health warning notice must be displayed at or adjacent to where tobacco products are displayed. The notice must be at least 10% of the size of the tobacco display or one metre square in size (whichever is smaller)
• retailers who choose to sell, but not to display tobacco products, are not required to post the health warning sign
• information board and price tickets are permitted

11.4.1.2 Discussion paper

In December 2006 ACT Health issued a discussion paper, Options for Controlling Access to Flavoured Tobacco Products and Split Packets. Interested stakeholders were encouraged to submit recommendations on mechanisms to ensure the sale of smoking products that are appealing to young people are effectively controlled.43

11.4.2 South Australia

The two main pieces of legislation affecting the advertising and promotion of tobacco products in South Australia are the Tobacco Products Regulation Act 1997[6] and the Tobacco Products Regulations 2004[7]. 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.[8]

11.4.2.1 Mobile tobacco sales

The use of mobile cigarette 'girls and boys' which has been a common form of marketing in nightclubs, is banned. For example, nightclub tobacco vendors typically dressing in bright tobacco company colours and approaching young patrons and offering tobacco products for sale are not permitted in South Australia.

11.4.2.2 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 less than 20 cigarettes each, commonly known as 'split packets'. Such packages were declared prohibited via a notice in the South Australian Gazette on November 9, 2006 and the ban came into effect on November 10, 2006.44

11.4.2.3 Products appealing to children

On November 1, 2006, the South Australian government banned the sale of tobacco products that possess a distinctive fruity, sweet or confectionery character.45 (See Figure 11.2 for an example of banned product, the DJ Mix brand.) To date, South Australia is the only state to implement a ban on the sale of these flavoured products.

11.4.2.4 Pending regulations for the display of tobacco at retail

On December 18, 2006 the South Australian Mental Health and Substance Abuse Minister announced new restrictions on the display of tobacco products that will come into effect on November 1, 2007. The restrictions will limit the size of tobacco displays to three square metres that must carry an A3
(420 x 297 mm) sized graphic warning of the effects of smoking adjacent to the packets. Alternatively, displays of one or less square metres must carry an A4 (297 x 210 mm) size graphic warning. Displaying cigarette cartons will be banned and only one packet of each product will be permitted to be on display. Large stores will be prevented from having prominent displays of tobacco products facing public areas, such as in shopping malls.46

11.4.3 New South Wales

Two key pieces of legislation relate to the advertising and promotion of tobacco products in New South Wales: the Public Health Act 1991[9]and the Public Health (Tobacco) Regulation 1999[10].

These two pieces of legislation prohibit overt advertising of tobacco products as well as regulating how tobacco products can be displayed at point of sale. The Public Health Act 1991 also prohibits tobacco related promotions, sponsorships, competitions and free sampling of tobacco. [11]

11.4.3.1 Packaging

Uniquely and significantly, the 1999 regulation acknowledges that images on the package itself constitute advertising. Limits on the maximum allowable size of a tobacco package to 1800 cubic centimetres 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:

• 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.

11.4.3.2 Display restrictions

The 1999 regulation contained several changes to the way tobacco products could be displayed at retail. NSW Health acknowledges that 'displays are also an advertisement' and that they are permitted despite a total ban on all advertising at retail.47 p 5 Compliant displays abide by the following set of conditions:

• two package faces per brand variant (each brand may have many variants, for example Horizon has many variants including: Menthol Blue, Menthol White, Menthol Yellow, Orange, Yellow, Purple, Red) and only one carton of each brand variant visible
• images cannot be created by joining packages together
• display is behind the counter (not permitted on the counter)
• display contains at least 50 packages at all times[12]
• display has a health warning affixed referring people to the Quitline
• no display embellishments allowed, such as mirrors, lights, streamers or non-tobacco items (lighters and matches permitted)
• price tickets or a price board are permitted (only one type of pricing mechanism per shop)

11.4.3.3 Pending regulatory changes

In April 2006, NSW Health Minister John Hatzistergos announced further pending amendments to the Public Health Act 1991 that will substantially increase penalties for companies that breach tobacco advertising regulations as well as prohibit tobacco products being sold from cars, caravans, trailers, stalls, tents or market stands. Fines for advertising breaches will increase to $660,000 for a first offence and upwards of a
$1 million for a second offence.48

11.4.4 Northern Territory

Legislation and regulation pertaining to tobacco advertising in Northern Territory falls under the Tobacco Control Act (2002)[13] and the Tobacco Control Regulations[14]. Tobacco advertising was banned from May 31, 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.49

Tobacco must be sold over the counter from a premise with a licence to sell tobacco products. A display can have no moving parts, and tobacco products can only be displayed at the point of sale. This means that mobile cigarette 'girls and boys' who typically approach young people in nightclubs and pubs are no longer permitted.50

11.4.4.1 Display restrictions

Display restrictions also came into effect in May 2003. These include51:

• a Quitline sign must be displayed alongside any tobacco display
• only one point of sale per outlet which must be behind the counter
• one package plus one carton of each type of tobacco may be displayed
• the area of the display cannot exceed four square metres
• display must be two metres from children's products including confectionery
• if a display faces a window or entrance it must be two metres away from the window or entrances
• either a price board or price tickets is permitted, not both

11.4.5 Queensland

Tobacco advertising and promotion is controlled and restricted by the Tobacco and Other Smoking Products Act 1998[15] and the Tobacco and Other Smoking Products Regulation 1998[16]. 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 Queensland Parliament on November 11, 2004. The new laws commenced in phases between January 1, 2005 and July 1, 2006 and include restrictions on how tobacco products can be displayed at retail outlets and a ban on tobacco advertising or competitions.52

11.4.5.1 Display restrictions

An overview of the tobacco display laws which came into effect on December 31, 2005 is as follows53:

• 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

11.4.6 Tasmania

The control of the marketing and promotion of tobacco products in Tasmania falls under the Public Health Act 1997[17]. 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:

• displaying no more than one packet of each product line of tobacco (no cartons), with no more than 150 packages on display in total and must be less than four square metres in size
• displaying no tobacco products within a distance of 75 centimetres of any confectionery, or other products designed or marketed for the use of children
• the display unit must not be on any counter that is accessible to the public
• the display must not contain any visual embellishments including borders, partial images of packages or trademarked images from packages, devices that cause movement, mirrors or other reflective device, holograms, interior lighting, exterior lighting attached to the sales unit or external spotlighting
• the display must be positioned such that it is not visible outside the shop and must be two metres away from the entrance and positioned perpendicular to any windows
• the premises cannot be colour coding in colours that form part of the usual packaging of the tobacco product within five metres of the display

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 that appears on the cigarette packages themselves (Figure 11.3). 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 has unexpectedly provided evidence for the technical and financial feasibility of requiring all retailers to move their tobacco products out of sight.54

11.4.6.2 Pending legislative changes

In May 2006, the Tasmanian Department of Health conducted a consultation to strengthen measures within the Public Health Act 1997 to further protect children from tobacco products. One of the recommended actions was to 'prohibit tobacco product displays but allow price boards and product availability information including catalogues.'55 p 23

In March 2007, the state government announced its intentions to further restrict, not ban, the display of tobacco products by reducing displays to one square metre for general retailers and four square metres for specialist tobacconists. This requirement is to commence July 1, 2007 with a six-month phase-in period.

11.4.7 Victoria

Two pieces of legislation restrict the marketing and promotion of tobacco in Victoria[18], the Tobacco Act 1987[19] and the Tobacco Regulations 1997[20].

On March 1, 2006 significant amendments came into effect that further strengthen restrictions on the sale and advertising of tobacco. In summary, the amendments affecting advertising and promotion include56:

• banning smoking, the promotion of tobacco products and the sale of tobacco products at underage 'music/dance' events
• widening of 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

11.4.7.1 Underage 'music/dance' events

An underage 'music/dance' event is defined as an event that57:

• 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'[21] events
• 'Blue Light' discos[22]
• 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. 58 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). 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 includes restrictions on how tobacco products can be displayed.59 Compliant displays feature the following60:

• show only one of each product line of a tobacco product. Different size packages are not treated as different product lines
• displaying cartons is not permitted. 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
• only one display area per store is permitted which must be at point-of-sale
• price tickets and price boards are permitted
• 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[23] and the Tobacco Products Control Regulations 2006[24].

The Tobacco Products Act 2006 repealed the 1990 Act[25] and 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.

11.4.8.1 Restriction of tobacco product displays

Changes enacted on July 31, 2006 restrict the way tobacco can be displayed at retail.61 These include:

• one retail sale-point only
• display is not greater than one square metre in size
• show no more than 150 different product lines and only one of each type of package of the product line
• no carton or a part of a carton can be displayed
• displaying a health warning sign (297 mm x 210 mm in size) that is in accordance with the regulations
• price boards and price tickets are permitted at the point of sale only
• display is behind (but not on) a counter across which customers are served on the seller's side or directly above a counter across which customers are served so that the vertical distance between the bottom of the display and the floor level on the customer's side of the counter is at least 1.7 m
• displays cannot be embellished or illuminated in any way
• at least one metre away from children's products including confectionery

Further regulations introduced on February 28, 2007 ban certain types of tobacco and packages from being displayed by retailers. Packages that cannot be displayed but can be sold by retailers include:

• a package containing cigarettes that, when smoked, have a flavour or aroma of any kind of fruit or mint (but not menthol), chocolate, vanilla, caramel, coconut or any other flavour (but not a spice) commonly used in the production of confectionery
• a package containing cigarettes that are, except for the paper around any filter tip, enclosed in paper of a colour that is not white, black or brown
• a package displaying a word or set of words, picture, sign, symbol or other visual image (including a colour or scheme of colours) or other visual message suggesting that the package contains cigarettes of a kind mentioned above
• a package that is designed or capable of being split into two or more portions each containing fewer than 20 cigarettes