Australia

The law prohibits the broadcast of tobacco advertising in Australia. Thus, tobacco advertising on domestic TV, radio, and other broadcast media is prohibited.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to tobacco advertising and promotion on domestic TV and radio and on other domestic broadcast media such as cable and satellite.

The law prohibits the publication of a tobacco advertisement, and the meaning of “publish a tobacco advertisement” set forth in the law specifically includes placing the advertisement in a newspaper or magazine.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to tobacco advertising and promotion in domestic newspapers and magazines.

The law prohibits the publication of tobacco advertising in any kind of print document, with the exception of print advertising inside the point of sale (POS). Because the point of sale exception is analyzed under a separate category, the regulatory status code of “Banned” is used here rather than “Some Restrictions.”

Therefore, the law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to advertising in other domestic print media such as pamphlets, leaflets, flyers, posters and signs. However, to fully align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should ban all forms of printed tobacco advertisements including at point of sale.

The law prohibits the broadcast of tobacco advertising in Australia or Norfolk Island. The definition of “broadcast” includes transmission by any means covered under the Broadcasting Services Act, which includes all radio and TV that “uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means.” The law applies to both domestic and cross-border TV, radio, and other broadcast media (e.g., satellite, cable) because it is the actual act of broadcasting in Australia, regardless of the place of origin, that is banned.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to tobacco advertising and promotion via international TV and radio.

The law permits tobacco advertising in periodicals printed outside Australia that are not principally intended for distribution or use in Australia. However, tobacco advertising would not be allowed in international publications principally intended for a foreign market. Therefore, the regulatory status code “Some Restrictions” is given.

Because the law restricts the importation of international newspapers and magazines that contain tobacco advertising, the law aligns with FCTC Art. 13 and FCTC Art. 13 Guidelines para. 52, which states that “Parties should make use of their sovereign right to take effective actions to limit or prevent any cross-border tobacco advertising, promotion and sponsorship entering their territory.”

The law prohibits the publication of a tobacco advertisement. The meaning of “publishing a tobacco advertisement” specifically includes bringing the advertisement to the notice of the public “by means of the internet,” including making the advertisement remotely accessible by a computer, mobile phone, or other electronic device. However, the law permits internet advertisements for internet sites that sell tobacco products as long as such advertising is not prohibited under the laws of the State or Territory in which it is accessible.

The law does not align with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to tobacco advertising and promotion via internet communications because it permits some forms of internet advertising. To fully align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should prohibit all tobacco advertising via internet communications, including advertising related to internet points of sale.

The law prohibits the publication of tobacco advertising, which includes by definition display of an advertisement in a public place. Therefore, outdoor advertising of tobacco products is prohibited.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to outdoor tobacco advertising.

Point of sale (POS) advertising falls within the jurisdiction of States and Territories. The Tobacco Advertising Products Act allows advertising at POS if the law of a State or Territory permits it, or if the law of a State or Territory does not address it. If no local law applies, the national regulations provide that POS must be wholly within the shop and not facing outside the shop through a window. Because several States and/or Territories prohibit POS advertising, the regulatory status is designated as “Some Restrictions.”

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the national law should prohibit all point of sale tobacco advertising or, alternatively, all States and Territories should do so.

Although the Tobacco Advertising Prohibition Act does not prohibit tobacco product display at point of sale, all States and Territories have passed laws restricting product display. Most States and Territories prohibit product display at all retail points of sale. However, at least two states - Victoria and Western Australia - permit display at specialist tobacconists. As a result of these exemptions, the regulatory status code “Some Restrictions” is given.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the national law should prohibit tobacco product display or, alternatively, all States and Territories should prohibit tobacco product display.

The law prohibits the publication of tobacco advertising, which includes by definition the publication in any document. Therefore, tobacco advertising and promotional material delivered through conventional mail is prohibited.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to tobacco advertising and promotion via conventional mail.

The law prohibits the publication of a tobacco advertisement. The meaning of “publishing a tobacco advertisement” includes bringing the advertisement to the notice of the public “by any means, (including, for example, by means of a film, video, computer disk or electronic medium).” As telephone and cellular phone are forms of electronic media, the law prohibits tobacco advertising and promotion via telephone and cellular phone.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to tobacco advertising and promotion via telephone and cellular phone.

Brand marking is prohibited except for within tobacco retail outlets. The definition of “advertising” includes anything that promotes words and/or designs that are closely associated with a tobacco product or range of tobacco products. The prohibition on “publishing a tobacco advertisement” includes supplying something that contains a tobacco advertisement to the public. These provisions together prohibit the use of designs, images, logos, or colors to promote tobacco products on venues, vehicles or the outside of retail outlets. Because the law allows point of sale advertising at retail outlets, the law is interpreted as allowing brand marking inside retail outlets.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the prohibition on brand marking should extend to retail shops.

The national law does not address free distribution of tobacco products; therefore, it is allowed under national law. However, many States and Territories prohibit the free distribution of tobacco products; therefore, the regulatory status code “Some Restrictions” is given.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, and to meet FCTC Art. 16, the national law should prohibit the free distribution of tobacco products or, alternatively, all States and Territories should do so.

The national law does not address the offering of promotional discounts, gifts, prizes, or other rewards to consumers in conjunction with a tobacco product purchase; therefore, it is allowed under national law. However, many States and Territories prohibit the promotional discounts, gifts, and prizes. Because this promotional practice is banned in many places, the regulatory status code “Some Restrictions” is given.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the national law should prohibit these types of promotional practices and should provide a definition of “tobacco promotion” in order to clarify the scope of the ban. Alternatively, all States and Territories should prohibit these types of promotional practices.

A competition associated with tobacco products or brand names would be considered a publication of a tobacco advertisement under Secs. 9 and 10 of Tobacco Advertising Prohibition Act because it would display some tobacco product associated element. Only limited forms of written acknowledgment for contribution or support are permitted under the law and regulations, and such a competition would not comply. Therefore, competitions associated with tobacco products are prohibited.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to competitions associated with tobacco products.

Direct targeting of individuals with promotional or informational materials is prohibited as this would violate the ban on publishing a tobacco advertisement. Specifically, a “tobacco advertisement” includes any advertisement with a visual or audible message, and therefore includes direct marketing by any person-to-person means. Further, “publishing a tobacco advertisement” includes bringing the advertisement to the attention of the public “by any means.” Thus, direct marketing is prohibited.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to direct marketing.

Brand stretching is prohibited. The definition of advertising includes anything that promotes words and/or designs that are closely associated with a tobacco product or range of tobacco products. The prohibition on “publishing a tobacco advertisement” includes selling or supplying something that contains a tobacco advertisement to the public. These provisions together prohibit the use of designs, images, logos, or colors associated with tobacco products on non-tobacco products or services.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to brand stretching.

The national law does not address reverse brand stretching and, therefore, the national law is interpreted as allowing reverse brand stretching. However, some States and Territories have laws that prohibit promotional activity, which may include reverse brand stretching. Therefore, the regulatory status code “Some Restrictions” is given.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the national law should prohibit all reverse brand stretching as part of the prohibition on advertising.

The national law does not address the sale of toys or candy that resemble tobacco products; therefore, it is allowed under national law. However, some States and Territories prohibit the sale of products that resemble tobacco products. Therefore, the regulatory status code “Some Restrictions” is given, rather than “Allowed.”

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the national law should prohibit the sale of toys and candy that resemble tobacco products or, alternatively, all States and Territories should prohibit the sale of toys and candy that resemble tobacco products.

The national law does not address the sale of toys or candy that resemble tobacco products; therefore, it is allowed under national law. However, some States and Territories prohibit the sale of products that resemble tobacco products. Therefore, the regulatory status code “Some Restrictions” is given, rather than “Allowed.”

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the national law should prohibit the sale of toys and candy that resemble tobacco products or, alternatively, all States and Territories should prohibit the sale of toys and candy that resemble tobacco products.

The national law does not address retailer incentive programs; therefore, such programs are allowed under national law. However, many States and Territories have laws that prohibit promotional practices such as retailer incentive programs. Therefore, the regulatory status code “Some Restrictions” is given, rather than “Allowed.”

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the national law should prohibit these types of promotional practices and should provide a definition of “tobacco promotion” in order to clarify the scope of the ban. Alternatively, all States and Territories should prohibit these types of promotional practices.

Given the definition of “tobacco advertisement” and to “publish a tobacco advertisement,” the Tobacco Advertising Prohibition Act prohibits paid placement of tobacco products in TV, film, and other media. Specifically, the definition of “advertisement” includes any visual image or audible message that promotes smoking or a tobacco product. Publishing includes the advertisement in any film, video, or TV or radio program. Therefore, paid placement of tobacco products is prohibited.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to paid placement of tobacco products in TV, film, and other media.

Section 9 of the Tobacco Advertising Prohibition Act (TAPA) provides an exemption from the advertising ban for legitimate political discourse, as defined in the Act (Sec. 8).

Further, TAPA Sec. 19 allows “tobacco advertisements” that are an accidental or incidental accompaniment to a broadcast, for which there is no direct or indirect benefit (financial or otherwise). This provision permits unpaid depiction of tobacco products in TV, film, and other entertainment media.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should specifically address unpaid placement in accordance with FCTC Art. 13 Guidelines paras. 29-32.

The national law permits financial support by the tobacco industry; however, some States and Territories have banned tobacco sponsorship itself, regardless of publicity. These sub-national bans override more lenient national laws.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the national law should prohibit financial or other contributions to any activity, individual, organization, or government that has the aim, effect, or likely effect of promoting tobacco products or tobacco use directly or indirectly. Alternatively, all State and Territory laws should do so.

The law allows the publication of an acknowledgement of assistance or support if it complies with regulations. The regulations impose strict conditions on any acknowledgement based on the media of acknowledgement (i.e., printed matter, video recording, oral acknowledgement). Among other provisions, written acknowledgement must not be on the front or back cover the printed matter, must be in the same typeface generally used in the printed matter, must appear in a list of sponsors, and include no logos or trademarks. Similarly, for videos, acknowledgment must be text only, at the end of the video, in the same typeface as the credits, within a list of sponsors, and include no logo or trademark. Some States and Territories have more stringent restrictions on publicity of sponsorship, which prevail over less stringent national law.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the national law should prohibit all tobacco sponsorship and publicity thereof. Alternatively, all State and Territory laws should do so.

The Australian Consumer Law (ACL), contained in Schedule 2 of the Competition and Consumer Act 2010, prohibits misleading and deceptive conduct and false or misleading representations about goods and services. This provision is not specific to tobacco but could be used to prohibit the use of misleading terms and other indicia on tobacco product packaging. In addition, there are court-enforceable agreements in place between the Australian Competition and Consumer Commission (ACCC) and the three main tobacco manufacturers in Australia under which they agreed to stop using misleading terms such as “'light” and “mild.” These agreements reference the former Trade Practices Act provisions for misleading or deceptive conduct or the making of false representations that are now largely mirrored in the ACL.

This law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to promotion by means that are false, misleading, or deceptive.