Definition of a ‘tobacco advertisement’Advertisements for tobacco products take a number of forms. They can be magazine and newspaper advertisements, point of sale promotions, signage at sporting and cultural events, and cinema advertising. For this reason the Act defines a tobacco advertisement broadly – s.9(1).
Under the Act a tobacco advertisement is basically anything that gives publicity to or promotes:
- the purchase or use of tobacco products
A tobacco product is defined in section 8 of the Tobacco Advertising Prohibition Act 1992. It is tobacco itself and any product that contains tobacco (as a main or substantial ingredient) designed for human consumption. Cigarette papers, cigarette rollers and pipes are also tobacco products under the Act.
- a trademark or registered design for tobacco products
For example, this would include the word ‘Marlboro’. It could also include the packet design, for example the red and white Marlboro chevron.
- a name of a tobacco manufacturer whose name appears on the packaging of tobacco products
Under the definition, anything promoting the name of a tobacco manufacturer would be a tobacco advertisement if those names appear on the packaging of tobacco products that they manufacture.
- any other words or designs or combination of words or designs that are closely linked with a tobacco product
For example, the Winfield motto “…anyhow*” combines words and a symbol that, when they appear in that format in white on a red background, are closely linked with a tobacco product. Likewise, the camel logo that has become famous in America promoting Camel cigarettes is a design that is closely linked with a tobacco product.
Definition of ‘publish a tobacco advertisement’What it means to ‘publish a tobacco advertisement’ is set out at subsection s.10(1) of the Act.
A person publishes a tobacco advertisement if they:
- include it in a document that is available or distributed to the public or a section of the public
For example, a document may be a newspaper, magazine, leaflet or ticket.
- include it in a film, video, TV or radio program that is to be seen or heard by the public or a section of the public
For example, if a film producer includes a tobacco advertisement in a film, they publish that advertisement for the purposes of the Act.
- sell, hire or supply it to the public or a section of the public – or offer to do so
For example, if a person tried to sell a t-shirt or stubby holder that had a cigarette brand logo on it they would have published a tobacco advertisement.
- display, screen or play it so that it can be seen or heard from a public place, public transport or a workplace
For example, promoting a cigarette brand over a public address system.
- disseminate or bring it to the notice of the public by any means
For example, by means of a film, video or computer disk or via the Internet, email or other electronic means.
Definition of ‘broadcast’The Act defines ‘broadcast’ to include ‘transmit by means of a broadcasting service within the meaning of the Broadcasting Services Act 1992’. In most cases, this simply means by way of radio or television – s.8.
Enforcing the ActIt is an offence to publish or broadcast a tobacco advertisement in contravention of the Act.
The maximum fine for an individual who publishes or broadcasts an advertisement is 120 penalty units ($13,200 as at January 2007). For a corporation the fine is up to 600 penalty units ($66,000 as at January 2007).
These penalties are set out in s.13(1) and s.15(4).
Most people willingly comply with the Act. The Government takes breaches of the Act seriously. The Department of Health and Ageing follows up on every reported breach. The Department can refer alleged breaches of the Act to the Australian Federal Police to investigate. If appropriate, matters can then be referred to the Director of Public Prosecutions for prosecution in the courts.
Each year the Minister must table a report in Parliament on the number and nature of contraventions of the Act and what action has been taken – s.34A. If you wish to report a potential breach of the Act, please contact the Department of Health and Ageing, Tobacco and Drug Prevention Section. Contact details are on page 9 of this guide. It is preferable that reports of breaches are submitted in writing. Please enclose a copy of the alleged breach if it was printed or sufficient evidence to enable the Department to investigate.