The Tobacco Advertising Prohibition Act does not define “tobacco sponsorship.” A definition of “tobacco sponsorship” is not strictly needed to interpret the law because the law does not prohibit tobacco sponsorship by itself. Rather, the law prohibits publicity of that sponsorship except for limited “acknowledgment of assistance or support” in a form set forth in the regulations.
The FCTC Art. 13 Guidelines provide that “the definition of ‘tobacco sponsorship’ [in the FCTC] covers ‘any form of contribution,’ financial or otherwise, regardless of how or whether that contribution is acknowledged or publicized.” To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should prohibit sponsorship itself, not just the publicity thereof, and consequently a definition of “sponsorship” should be provided.
Any form of contribution to any event, activity, or individual with the aim, effect or likely effect of promoting a tobacco product or tobacco use directly or indirectly. (FCTC Art. 1(g))
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).
Although the definition of “advertisement” encompasses commercial communication and recommendations, it does not encompass certain promotional “actions” and therefore is narrower than the FCTC definition of “tobacco advertising and promotion.” To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should define “tobacco advertising,” including promotional actions, in accordance with FCTC Art. 1(c).
Any form of commercial communication, recommendation, or action with the aim, effect or likely effect of promoting a tobacco product or tobacco use either directly or indirectly. (FCTC Art. 1(c))
Tobacco product means:
(a) tobacco (in any form); or
(b) any product (for example a cigar or cigarette):
(i) that contains tobacco as its main or a substantial ingredient; and
(ii) that is designed or intended for human consumption or use; and
(iii) that is not included in the Australian Register of Therapeutic Goods maintained under the Therapeutic Goods Act 1989; or
(c) a cigarette paper, cigarette roller or pipe.
The definition of “tobacco product” aligns with the definition of tobacco product provided in FCTC Art. 1(f) and is more expansive than the FCTC definition in that it also encompasses cigarette paper, cigarette rollers, and pipes.
Any product entirely or partly made of the leaf tobacco as a raw material which is manufactured to be used for smoking, sucking, chewing, or snuffing. (FCTC Art. 1(f))
Public place means a place to which the public, or a section of the public, ordinarily has access, whether or not by payment or by invitation (including, for example, a shop, restaurant, hotel, cinema or club).
The definition of “public place” is significant because the prohibition on publishing a tobacco advertisement encompasses displaying a tobacco advertisement in a public place.
Subject to this section, for the purposes of this Act, a person publishes a tobacco advertisement if the person does any of the following things:
(a) the person includes the advertisement in a document (including, for example, a newspaper, magazine, program, leaflet or ticket) that is available, or distributed, to the public or a section of the public;
(b) the person includes the advertisement in a film, video, television program or radio program that is, or is intended to be, seen or heard by the public or a section of the public;
(c) the person:
(i) sells, hires or supplies the advertisement, or something containing the advertisement, to the public or a section of the public; or
(ii) offers the advertisement, or something containing the advertisement, for sale or supply to, or hire by, the public or a section of the public;
(d) the person displays, screens or plays the advertisement, or something that contains the advertisement, so that it can be seen or heard in or from:
(i) a public place; or
(ii) public transport; or
(iii) a workplace;
(e) the person otherwise brings the advertisement, or something that contains the advertisement, to the notice of, or disseminates the advertisement, or something that contains the advertisement, to, the public, or a section of the public, by any means (including, for example, by means of a film, video, computer disk or electronic medium).
The description of what it means to “publish a tobacco advertisement” is significant because the act prohibits publishing a tobacco advertisement, subject to a few limited exemptions.
Broadcast means transmit by means of: (a) a broadcasting service within the meaning of the
Broadcasting Services Act 1992; or
(b) something that would be such a broadcasting service if the definition of broadcasting service in subsection 6(1) of that Act were amended by omitting all the words from and including “but does not include” to the end of the definition; or
(c) a datacasting service within the meaning of the Broadcasting Services Act 1992.
The definition of “broadcast” is significant because the law prohibits the broadcast of tobacco advertisements.