There have been violations of both Commonwealth (national) and state and territory tobacco advertising legislation. Key examples of these breaches are detailed below.
As most violations and suspected violations of the Tobacco Advertising Prohibition Act 1992 (TAP Act) have not resulted in prosecution it is difficult to assess the extent to which the Act is being violated and enforced. As previously discussed in this chapter, annual reports on contraventions of the TAP Act contain limited information on prosecutions only. It is also uncommon for complaints to result in a prosecution. This is because the Department of Health and Ageing investigates every complaint and is usually able to have any potential breaches to the TAP Act removed within a short time frame.1 In 2005 and 2006 a total of 36 complaints were made about possible breaches to the TAP Act, all of which were investigated and either dropped or resolved without prosecution.2 The media often reports on possible violations to the TAP Act and is the primary source of information on complaints made to the Australian Government Department of Health and Ageing.
In 2002, the Australian Broadcasting Authority (ABA) found that three Nine network licensees had broadcast a tobacco advertisement in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth) (TAP Act), thereby breaching the conditions of their broadcasting licenses. Footage of the actor Russell Crowe smoking and displaying a pack of Marlboro cigarettes was shown in the '60 Minutes' program aired on 29 October 2000. The ABA found that airing of the footage amounted to a reckless broadcast of a tobacco advertisement under the TAP Act, contrary to the broadcasters' licence conditions under the Broadcasting Services Act 1992 (Cth). On review, the Federal Court affirmed the ABA's decision.3 i As the broadcasters had not previously breached this licence condition, the ABA did not prosecute or issue fines.
In 2001, Channel Ten was found to have broadcast a tobacco advertisement, in violation of the TAP Act, during a women's golf tournament. Channel Ten had shown signage for Philip Morris's Alpine cigarette brand and in interviewing the sales manager had made particular reference to the company's name. The network was not prosecuted but was advised to take further precautions during live interviews to avoid broadcasting tobacco advertisements and to provide staff with training on the provisions of the TAP Act.4
In April 2006 the Melbourne radio station 3AW was found to have broadcast three tobacco advertisements during an archival radio play broadcast. The station was held to be in breach of the TAP Act but was not prosecuted as the licensee was a first-time offender and agreed to: 'take steps to ensure that all future archival broadcasts are considered and reviewed prior to broadcasting, so that any potentially unlawful material is identified and removed from any further proposed broadcasts' (p9).5 In March 2007, print advertisements and billboards promoting a concert by US R & B singer–songwriter, Beyoncé (Knowles), were found to be potentially in breach of the TAP Act. The singer was shown posing with an old-fashioned cigarette holder—see http://news.softpedia.com/news/Smoking-Could-Get-Beyonce-039-s-Australian-Tour-Nixed-47485.shtml.The concert promoters were advised to remove the advertisements or potentially face prosecution.6 Subsequent print versions of the advertisement contained the identical image of the singer with the cigarette holder digitally removed.
In January 2008, the market research company, Feedback Plus, was warned by the Australian Government Department of Health and Ageing that it was potentially breaching the TAP Act by recruiting non-smokers to a cigarette taste testing survey.7 Feedback Plus sent out a survey recruitment email in November 2007 saying that participants would be given free cigarettes to smoke at home and then be paid for filling out surveys. The email stated that 'taste testing is not limited to smokers. New registrations via the webpage for the testing panel ... have a chance at winning an instant $200 cash.' No further action was taken after Feedback Plus agreed to stop the survey and to refrain from undertaking any future surveys that included the distribution of free cigarettes.
In February 2008, The Weekend Australian was warned to comply with the TAP Act after publishing an ad that included an image of a bikini-clad woman smoking a water pipe in a Beirut conflict zone—see http://tobaccocontrol.bmj.com/content/14/6/363.2.full The image was taken in June 2005 by AFP at Beirut's Saint-Georges Hotel. Editor-in-chief of The Australian and The Weekend Australian, Chris Mitchell, said the image did not intend to push smoking.8 In 2007 the Advertising Standards Bureau had dismissed a similar complaint against the same ad.
In March 2009, following a complaint in September 2008, the Australian Communications Media Authority (ACMA) found that Briz31, the licensee of community television station QCTV Brisbane, breached its licence conditions by broadcasting tobacco advertisements.9 The advertisements appeared in Dragnet, a program produced in the 1950s. ACMA accepted QCTV's submission that it did not intentionally broadcast the advertisements and that the breaches were a consequence of a breakdown in its internal editing procedures. QCTV agreed to a new vetting process and better training of staff and no further action was recommended.
In April 2010 the Department of Health and Ageing launched an investigation of the use of cricket imagery inside packs of Peter Jackson cigarettes.10 In a clear demonstration that Cricket Australia has completely severed its historic ties to tobacco sponsorship, Peter Young, General Manager of Public Affairs for Cricket Australia, said the cigarette packs had been sent to its legal department for review, but that as no trademarks had been used it was unlikely that Cricket Australia could prevent the images from being used.11 Philip Morris, manufacturers of the brand, also uses images of other iconic Australian pastimes, such as horse racing, for the in-pack promotions (Figure 11.5.1).
Peter Jackson within-pack advertising
In July 2010, the fashion line Nena & Pasadena, owned by high-profile sports figure, Lance Franklin, was subject to complaints regarding the design of a T-shirt that featured an image of a model smoking. The creator of the T-shirt denied that the image promoted smoking and suggested that the words, 'Dirty Habit', printed on the T-shirt, demonstrated that the company actually denounced smoking. The Department of Health and Ageing said it would investigate to determine if there was a breach of the TAP Act. The T-shirt design is no longer featured on the company's website.12
It is interesting to note that most of the publicised complaints of violations of the TAP Act do not directly involve the tobacco industry but are against other entities that employ tobacco imagery to promote seemingly unrelated goods and services.
In August 2009, the operator of Coles Express service stations in New South Wales, Eureka Operations, was fined $107 000 and ordered to pay an additional $50 000 in court costs after being convicted of verbally promoting discounts on cigarettes. The Chief Health Officer in New South Wales, Dr Kerry Chant, said NSW Health had prosecuted the retail chain giant for instructing its employees to verbally encourage customers to purchase tobacco products.13 When a customer requested a single pack of cigarettes, Coles Express employees were instructed to inform the customer that they could buy a second pack at a reduced rate.
In response, Wesfarmers stated in its annual sustainability report that:
'We take our tobacco compliance responsibilities seriously and this year ensured that our store teams in New South Wales and the Australian Capital Territory were updated on the recent changes in tobacco legislation. Last year we reported that the NSW Department of Health had commenced proceedings against Eureka Operations, alleging that a verbal multi-buy offer at 26 Coles Express stores was a breach of the tobacco advertising prohibition in the Public Health Act. We ceased the offer immediately upon being notified that the Health Department considered the offer to be a breach of the Public Health Act. The Supreme Court determined that the conduct at three sites did constitute an offence and Eureka Operations pleaded guilty to the remaining 23 charges.' 14
Advertisements that promote smoking can also be reviewed by the Advertising Standards Bureau (ASB)ii if a complaint is submitted. The ASB is national system of advertising self-regulation and provides a free public service of complaint resolution. It provides determinations on complaints about most forms of advertising in relation to issues including the use of language; the discriminatory portrayal of people; concern for children; portrayals of violence, sex, sexuality and nudity; and health and safety. The ASB can only advise companies to modify or withdraw their advertisements, based on received complaints. Should a company choose not to accept the ASB recommendation, the ASB has no enforcement capabilities.
The ASB receives many complaints about the portrayal of tobacco and tobacco-related issues. A keyword search of the online complaints database showed that more than 40 complaints involving tobacco had been received since 1998. The bulk of these complaints were not upheld and most were actually aimed at state-run anti-smoking mass media campaigns that viewers found either too confronting or inappropriate for general view.
Complaints about advertisements for quit smoking medications have been upheld. In February 2010, an Australia Day advertisement for Nicabate Pre-Quit, a transdermal nicotine patch, which featured images of a smoking kangaroo and emu, was found to promote 'a positive depiction of smoking that is contrary to prevailing community standards on health and safety'.15 iii In February 2006, an advertisement for Nicotinel Gum, a smoking cessation product sold in Australia by Novartis, was found to contain 'stylised and glamorous visual imagery of the smoking woman (that) strongly linked glamour, excitement and positive messages to smoking in the first place' (p2).16 Novartis, the makers of the product, agreed to modify the advertisement. The modified ad was once again subject to complaints in November 2007 and the ASB determined that the only marginally different ad continued to glamorise smoking. Novartis agreed to stop running the ads. The ASB has also upheld complaints for other advertisements that promote smoking, including:17
i TCN Channel Nine Pty Ltd v Australian Broadcasting Authority 2002 FCA 898 (18 July 2002) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2002/896.html?stem=0&synonyms=0&query=2002%20and%20crowe
iii See Australia Day advertisements for Nicabate Pre-Quit Source: http://adsoftheworld.com/media/print/nicabate_prequit_roo and http://adsoftheworld.com/media/print/nicabate_prequit_emu
iv Despite the company declaring the advertisement would be removed, this advertisement reappeared on billboards and posters around Australia in April 2007. Source: http://campaignbrief.blogspot.com/search?q=Everlast
5. Australian Communications and Media Authority. Investigation report no.1698. Canberra: 2006, viewed 1 May 2007. Available from: http://www.acma.gov.au/WEBWR/_assets/main/LIB100631/3AW%20Report%201698.pdf
9. Australian Communications and Media Authority. ACMA finds Brisbane community television service in breach of its licence conditions for broadcasting tobacco advertisements Media release. Sydney: ACMA, 11 March 2009 viewed September 2010. Available from: http://www.acma.gov.au/WEB/STANDARD..PC/pc=PC_311658
12. McArthur G. Lance Franklin may be forced to remove designer T-shirt from sale. Herald Sun, Melbourne 2010:7 Jul. Available from: http://www.news.com.au/lance-franklin-may-be-forced-to-remove-designer-t-shirt-from-sale/story-e6frf7jo-1225888713968?from=public_rss
13. Ferre J. Coles Express receives $107,000 fine for cigarette advertising. AFN Thought for Food, Melbourne 2009:3 Aug. Available from: http://www.ausfoodnews.com.au/2009/08/13/coles-express-receives-107000-fine-for-cigarette-advertising.html
14. Wesfarmers. Sustainability report 2009. Perth: Wesfarmers 2009, viewed 12 September 2010. Available from: http://www.wesfarmers.com.au/sustainabilityreport2009/coles.html
15. Advertising Standards Bureau. Case report: Glaxo Smith Kline (health product). Sydney: ASB 2010, viewed September 2010. Available from: http://www.adstandards.com.au/pages/casestudy_search.asp
16. Advertising Standards Bureau. Case report: Novartis Consumer Health Australasia (Nicotinell - Keep the flame) (health products). ASB 2010, [viewed. Available from: http://www.adstandards.com.au/pages/casestudy_search.asp
17. Advertising Standard Bureau. Search Complaints Database. Sydney: ASB, 2010. viewed August 2008; Available from: http://www.adstandards.com.au/pages/casestudy_search.asp