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Tobacco Advertising Prohibition Amendment Bill 1994



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House: Senate

Portfolio: Human Services and Health

Commencement: The Act commences on the day on which it receives Royal Assent.

Purpose

To amend the Tobacco Advertising Prohibition Act (" the TAP Act") 1992 to:

clarify that the Act is not to apply in a way which would exceed the Commonwealth's power;

provide for the exemption of various types of tobacco advertisements from the

operation of the Act, including:

- advertisements made in the context of government or political discussion so long as they do not promote tobacco products;

- advertisements relating to the internal management of the business of a manufacturer, distributor or retailer of tobacco products;

- advertisements preventing a product causing injury to anyone;

- non- tobacco products which share the same name or have substantially similar names to a tobacco product, manufacturer, distributor or retailer;

- the publication of the name of tobacco manufacturer, distributor or retailer in a telephone directory; and

- the broadcasting or publication of an advertisement on international air flights.

Background

Legislative History

Legislation imposing restrictions on the marketing and promotion of tobacco products has been progressively enacted in both the Commonwealth and State spheres since 1976.

The first legislative restriction on the promotion of tobacco products was the 1976 amendment to the Broadcasting Act 1942 (Cth). This introduced a prohibition on the broadcasting, on radio and television, of advertisements for tobacco products, except as an accident or incidental accompaniment to other matter.

This broadcasting prohibition, while appearing prima facie to prevent tobacco advertising on television, in fact did not do so. The exemption for accidental or incidental advertising enabled the continuation of the broadcasting of events such as the Benson Hedges World Series Cup, the Winfield Cup, and the arts without infringing the prohibition, and provided an effective loophole through which tobacco companies were able to achieve significant exposure by increasing their sponsorship funding of sport.

Perimeter signage in particular became prolific and tobacco products thereby received substantial promotion during the television coverage of sporting events.

The result was, in the late 1980's and 1990's the enactment of State and Territory legislation imposing restrictions on tobacco advertising and sponsorship, striking at advertisements through such media as billboards and venue signage. Inconsistencies in the different legislation means that, if advertising was not prohibited or was exempted in one State, sporting events containing such advertising could be broadcast in another State, despite restriction on this advertising in the receiving State.

In 1989 the Commonwealth imposed a ban on advertising in the print media, but this was repealed in 1992 by the TAP Act, which introduced restriction on all forms of tobacco advertising, including broadcasting and print media. That legislation was introduced to provide a national standard due to the differences in State and Territory legislation and the lack of legislation in some States and Territories.

Prohibitions

The TAP Act was enacted on 24 December 1992 and prohibits:

the broadcast or publication, knowingly or recklessly, of tobacco advertisements after 1 July 1993.

The reach of the TAP Act prohibitions on the broadcast and publication of tobacco advertisements is extensive, covering almost any conduct which promotes tobacco products. This is mitigated to some extent by the exemptions and defences, although these are quite rigidly controlled.

Exemptions

There are a number of exemptions and defences to the TAP Act prohibitions. Tobacco advertising is exempted from the prohibition where:

it is an accidental or incidental broadcast or publication of tobacco advertisements where the person broadcasting does not receive any benefit for so broadcasting or publishing (sections 14 and 19 TAP Act);

the advertisement is contained in a publication printed outside Australia and not principally intended for distribution or use in Australia (section 17);

it is point- of- sale advertising which is allowed subject to State or Territory laws, or if there is no such legislation, subject to regulations (section 16);

it is an advertisement, in relation to a sporting or cultural event which the Minister has specified in the Gazette (section 18); or

the advertisement is not published in the course of manufacture, distribution or sale of tobacco products and is published at an individual's own initiative and the individual does not receive any benefit for publishing the advertisement.

It is a defence to a prosecution for unlawful publication if the advertisement was published under a pre- 1 April 1992 contract.

High Court Challenge

On 6 June 1994, Phillip Morris Limited instituted an action in the High Court, challenging the constitutional validity of the TAP Act.

Phillip Morris's challenge to the constitutional validity of the TAP Act is based on three grounds.

First, Philip Morris is arguing that the TAP Act is contrary to the requirement under section 92 of the Constitution that trade, commerce and intercourse among the State shall be absolutely free.

The second ground is that the TAP Act is contrary to an implied constitutional guarantee of freedom of communication, or freedoms of communication on public or political matters.

The third ground is that the TAP Act is beyond the legislative power of the Commonwealth (e.g. that a law which prohibits trading from advertising their tobacco products not a law "with respect to" trading corporations).

Main Provisions

Item 1 of the Schedule proposes that where a provision in the Act is regarded as having at least one valid application and one invalid application, it is Parliament's intention that the provision is to have every valid application. This is subject to:

the invalid provisions being able to be severed;

the valid provisions' operation not differing in a substantial respect because of the invalidity of other provisions; and

a contrary intention appearing in the Act.

Items 3 to 6 and 12 introduce several new exceptions to the general prohibition on tobacco advertising:

Proposed subsection 9(1A) provides that tobacco advertisements are permitted in the context of government or political matters, provided the advertisements do not promote smoking, a particular tobacco product or range of products ( item 3).

Proposed subsection 9(3A) provides that certain advertisements in relation to management and the availability of products do not constitute tobacco advertisements. Specifically:

- the doing of acts or things required to be done by law;

- advertisements relating to the internal management of the business, that do not promote a tobacco product or smoking;

- advertisements that indicate the availability of tobacco products provided the advertisement does not state a brand or promote or give publicity to any individual product;

- taking action to prevent a product causing injury to anyone, e.g. recalling a product or disclosing a defect in a product ( item 4)

Proposed subsection 9(3B) excepts advertisements for non- tobacco products which share the same name or have substantially similar names to a tobacco product, manufacturer, distributor or retailer so long as the manufacturer of the product is not associated with the manufacturer of a tobacco product ( item 4).

Proposed subsection 9(4) provides an exception in the case of advertisements of non- tobacco products which publicise or promote the purchase or use of a tobacco product, range of products, trademark or design. The advertisement is exempt if the Minister has published a notice in respect of the class of products. The Minister must be satisfied that the products were available for purchase before 1 April 1992 and that not publishing a notice would cause significant financial detriment to the manufacturer ( item 5).

Proposed subsection 10(3A) excepts the publication of the name of a manufacturer, distributor or retailer or tobacco products in a telephone directory ( item 6).

Under proposed subsection 26A it is not an offence to broadcast or publish a tobacco advertisement in an aircraft during a non- domestic flight.

C. Field (06 2772438)

I. Ireland (06 2772438)

Bills Digest Service 25 January 1995

Parliamentary Research Service

This Digest does not have any legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

Commonwealth of Australia 1995.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1995.