Commonwealth Consolidated Acts

TOBACCO ADVERTISING PROHIBITION ACT 1992 - SECT 9

Basic meaning

(1)

Subject to this section, for the purposes of this Act, a tobacco advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

(a) smoking; or
(b) the purchase or use of a tobacco product or a range of tobacco products; or
(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; or
(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; or
(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; or
(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).

Exception—political discourse

(1A)

To remove any doubt, it is declared that if:

(a) something ( the advertisement ) does not promote, and is not intended to promote, any particular tobacco product or particular range of tobacco products; and
(b) the advertisement does not promote, and is not intended to promote, smoking; and
(c) the advertisement relates solely to government or political matters;

the advertisement is not a tobacco advertisement for the purposes of this Act.

Use of name of manufacturer etc.

(1B)

Without limiting the scope of paragraphs (1A)(a) and (b), the use in an advertisement of the whole name of a manufacturer, distributor or retailer of tobacco products does not, of itself, constitute:

(a) promotion of a tobacco product or range of tobacco products for the purposes of paragraph (1A)(a); or
(b) promotion of smoking for the purposes of paragraph (1A)(b).

Prohibited uses of names

(1C)

Subsection (1B) does not apply in relation to use of such a name in a way prohibited by regulations made for the purposes of this subsection.

Exception—words etc. on products, packaging and business documents

(2)

Words, signs or symbols that appear:

(a) on a tobacco product; or
(b) on the packaging of a tobacco product; or
(c) as part of the standard wording of an invoice, statement, order form, letterhead, business card, cheque, manual, or other document, ordinarily used in the normal course of the business of a manufacturer, distributor or retailer of tobacco products;

do not, when so appearing, constitute a tobacco advertisement (but this does not prevent a still or moving picture, or other visual image, of a tobacco product, of the packaging of a tobacco product, or of a document referred to in paragraph (c), from being a tobacco advertisement).

Exception—words etc. on premises of manufacturers

(3)

Words, signs or symbols that appear in or on land or buildings occupied by a manufacturer of tobacco products do not, when so appearing, constitute a tobacco advertisement (but this does not prevent a still or moving picture, or other visual image, of words, signs or symbols that so appear from being a tobacco advertisement).

Exceptions—management advertisements and certain advertisements as to availability of products

(3A)

To remove any doubt, it is declared that the following do not constitute tobacco advertisements:

(a) the doing of anything that is, or apart from this Act would be, required to be done by any other law of the Commonwealth or by any law of a State or Territory;
(b) an advertisement (for example, an advertisement for staff or calling for tenders), relating to the internal management of the business of a manufacturer, distributor or retailer of tobacco products, that does not promote a tobacco product or smoking;
(c) an advertisement by a manufacturer, distributor or retailer of tobacco products indicating that tobacco products, or tobacco products of a particular kind, are available from the manufacturer, distributor or retailer, as the case may be, provided that the advertisement does not:
(i) state the brand name of any individual product; or
(ii) contain any other matter that would enable any individual product to be identified; or
(iii) promote, or give publicity to, any individual product;
(d) the taking of any action to prevent a product from causing injury to anyone, including action:
(i) to recall a product; or
(ii) to disclose a defect in, or a dangerous characteristic of, a product; or
(iii) to disclose circumstances in which the use of a product is or may be dangerous; or
(iv) to disclose procedures for disposing of a product; or
(v) to tell people who have bought a product that the product will be repaired or replaced, or that the price of the product will be refunded.

Exception—non-tobacco product having the same name as a tobacco product

(3B)

If:

(a) apart from this subsection, something ( the advertisement ) that relates to a non-tobacco product would, technically, be a tobacco advertisement because the name, or part of the name, of the non-tobacco product is the same as, or substantially similar to, the name, or part of the name, of:
(i) a tobacco product; or
(ii) the manufacturer, distributor or retailer of a tobacco product; and
(b) the manufacturer of the non-tobacco product is not associated in any way with the manufacturer of the tobacco product;

then, despite subsection (1), the advertisement is not a tobacco advertisement for the purposes of this Act.

Related bodies corporate taken to be associated with each other

(3C)

Without limiting the circumstances in which 2 persons would, apart from this subsection, be taken to be associated with each other for the purposes of subsection (3B), 2 bodies corporate that are related to each other are taken to be associated with each other for the purposes of that subsection.

Exception—certain advertisements for non-tobacco products

(4)

If:

(a) apart from this subsection, something ( the advertisement ) would, technically, be a tobacco advertisement because it gives publicity to, or otherwise promotes:
(i) the purchase or use of a tobacco product or a range of tobacco products referred to in paragraph (1)(b); or
(ii) the whole or a part of a trade mark registered as mentioned in paragraph (1)(c) in respect of goods that are or include tobacco products; or
(iii) the whole or a part of a design registered as mentioned in paragraph (1)(d) in respect of articles that are or include tobacco products; or
(iv) the whole or a part of the name of a person referred to in paragraph (1)(e); or
(v) any words or designs, or combination of words and designs, associated as mentioned in paragraph (1)(f) with a tobacco product or a range of tobacco products; and
(b) either:
(i) if subparagraph (a)(i), (ii), (iii) or (v) applies, a tobacco product or tobacco products of a kind referred to in the subparagraph were sold in Australia on or before 1 January 1995; or
(ii) if subparagraph (a)(iv) applies, the person referred to in that subparagraph was in existence under that name on 1 January 1995 or at a time before that date; and
(c) the advertisement does not explicitly promote, or give publicity to, any particular tobacco product or particular range of tobacco products; and
(d) the advertisement is not an advertisement in respect of whose publication section 21 would have applied if paragraphs (1)(c) and (d) of that section had not been enacted; and
(e) the advertisement:
(i) explicitly promotes, or gives publicity to; or
(ii) appears on, or on the packaging of;
a product that is covered by a notice in force under subsection (5);

then, despite subsection (1), the advertisement is not a tobacco advertisement for the purposes of this Act.

Specification of classes of products for the purposes of subsection (4)

(5)

For the purposes of subsection (4), the Minister may, by notice published in the Gazette , specify a class of products if, and only if:

(a) the Minister is satisfied that:
(i) the products are not tobacco products; and
(ii) the products, or similar or substantially similar products, were available for purchase from a place in Australia before 1 April 1992; and
(b) the Minister is satisfied that not specifying the class of products would cause significant financial detriment to the manufacturer of products in the class or to some other person involved in the distribution or sale of products in the class.

Note: Section 29 provides for the making of applications to have classes of products specified in notices under this subsection.

When a notice under subsection (5) comes into force

(6)

A notice under subsection (5) comes into force:

(a) on the day when it is published in the Gazette ; or
(b) if a later day is specified in the notice as the day when it is to come into force—on that later day.

Exception—anti-smoking advertisements

(7)

If:

(a) apart from this subsection, something ( the advertisement ) would, technically, be a tobacco advertisement; and
(b) it is clear from the advertisement that its sole or principal purpose is to discourage smoking or the use of tobacco products;

then, despite subsection (1), the advertisement is not a tobacco advertisement for the purposes of this Act.

Meaning of words

(8)

In this section: