11.5 Tobacco advertising legislation violations

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There have been violations of both federal and state tobacco advertising legislation. Key examples of these breaches are detailed below.

11.5.1 Federal TAP Act breaches

As most violations and suspected violations of the 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 and actual breaches to result in a prosecution.62 The only successful federal prosecution of a tobacco advertising violation was in 2002 when television Channel Nine was found guilty of recklessly broadcasting a tobacco advertisement during the program 60 Minutes in October 2000. An image of actor Russell Crowe smoking and displaying a package of Marlboro cigarettes while being interviewed was broadcast during the program. Despite Channel Nine appealing the ruling, the Australian Broadcasting Authority (ABA) successfully argued the images encouraged smoking.63 No fine was imposed. However, a breach was recorded against the network's licence.

In 2001, Network Ten was found to have broadcast a tobacco advertisement, in violation of the TAP Act, during a women's golf tournament. 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.64

In April 2006 the radio Station 3AW Melbourne 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 officially 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'.65 p 9

In March 2007, print advertisements and billboards promoting a concert by American R & B singer-songwriter, Beyoncé (Knowles), were found to be in violation of the TAP Act. The singer was shown posing with an old-fashioned cigarette holder (Figure 11.5). The concert promoters were advised to remove the advertisements or potentially face prosecution.66 Subsequent print versions of the advertisement contained the identical image of the singer with the cigarette holder removed.

11.5.2 Advertising Standards Bureau

Advertisements that promote smoking can also be reviewed by the Advertising Standards Bureau (ASB)[28], 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 accept the ASB recommendation, the ASB has no enforcement capabilities.

In February 2006, an advertisement for Nicotinel Gum, a smoking cessation product sold in Australia by Novartis, was found to contain 'stylised and glamourous visual imagery of the smoking woman (that) strongly linked glamour, excitement and positive messages to smoking in the first place'.67 p 2 Novartis, the makers of the product, has agreed to modify the advertisement. The ASB has also upheld complaints for other advertisements that promote smoking, including68:

• April 2007, magazine Cosmo Bride, images of a women smoking in a clothing advertisement
• September 2006, clothing manufacturers George Gross/Harry Who, images of smokers in clothing advertisement in a catalogue
• July 2006, Everlast, image of young boy smoking in clothing advertisement (Figure 11.6) [29]

11.5.3 New South Wales prosecution of Philip Morris and Wavesnet

In December 2000, NSW Department of Health officials attended an event billed as 'your one-stop online fashion and accessory boutique'.69 p 4 The Wavesnet website offered tickets to these events that were marketed as 'Glisten' parties. As Dr Stacy Carter, a University of Sydney researcher and event attendee describes, at all the Glisten events one cigarette brand, Philip Morris's Alpine, featured in a 'luminous white altar' that was 'tended at all times by a pair of gorgeous, glamorous, ageless women, identical icons, in shiny silver-white bobbed wigs, long sparkling white gowns, and perfect faces'.70 p 392 (Figure 11.7) In December 2001, NSW Health took legal action against Wavesnet and Philip Morris. (For further discussion on Wavesnet see Section 11.6.1)

In November 2002, Philip Morris became the first cigarette company in Australia fined for breaching advertising laws under the NSW Public Health Act 1991. Philip Morris was fined $9000 and ordered to pay $42,000 in court costs for illegally advertising at the Glisten event. Wavesnet, the Philip Morris associated company, was fined $15,000 with $28,000 in court costs.71 The Wavesnet website and associated events are no longer in operation.