11.3 Commonwealth (national) legislation

Advertising of tobacco products in Australia has been progressively restricted since the 1970s. Cigarette advertising bans on radio and television have been in place since 1976. In 1989, the Australian Government introduced the Tobacco Products Advertisements (Prohibition) Act 1989, which prohibited advertising of tobacco products in all newspapers and magazines, effective from December 1990.

The Tobacco Products Advertisements (Prohibition) Act 1989, in conjunction with the amended Broadcasting Act 1942, prohibited direct advertising in the print and broadcast media. The Tobacco Products Advertisements (Prohibition) Act 1989 was repealed in December 1992 by the Tobacco Advertising Prohibition Act 1992 (TAP Act), which took effect on 1 July 1993.

The TAP Act was subsequently repealed on 1 April 2024 under the Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Act 2023 (Cth) and replaced by the Public Health (Tobacco and Other Products) Act 2023 (Cth).

The Public Health (Tobacco and Other Products) Act 2023 (Cth) discourages the use of tobacco and e-cigarette products, continues the oral tobacco product ban, establishes new tobacco product, packaging and reporting requirements and bans tobacco and e-cigarette advertising and sponsorships. The Australian Government has published a Guide to advertising and sponsorship prohibitions under the Act, available here.

Alongside Commonwealth (national) legislation, state and territory legislation also imposes restrictions on tobacco advertising – see 11.4 State and territory legislation. If a person breaches the Public Health (Tobacco and Other Products) Act 2023 (Cth) and they have already been punished for the same conduct under an equivalent state or territory law, that person is not liable to be punished a second time under the federal Act.

11.3.1 Tobacco Advertising Prohibition Act 1992 (Cth) (no longer in force)

The Tobacco Advertising Prohibition Act 1992 (Cth) was introduced to provide a national standard for tobacco advertising, with objectives to:

1. Limit the exposure of the public to messages and images that may persuade them:

1. to start smoking, or to continue smoking or
2. to use, or to continue using, tobacco products.

2. Improve public health.

The TAP Act defined an “advertisement” as any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of two or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

1. smoking
2. the purchase or use of a tobacco product or a range of tobacco products
3. the whole or a part of a trademark that is registered under the Trade Marks Act 1955 in respect of goods that are or include tobacco products
4. 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
5. the whole or a part of the name of a person:
   1. who is a manufacturer of tobacco products and
   2. whose name appears on, or on the packaging of, some or all of those products
6. 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).

In 2007, the Australian Government published a guide to the TAP Act outlining what was and was not allowed under the Act.¹ The guide was designed to assist people who sell tobacco products (such as tobacconists, service stations and grocery shop owners), those whose work involves publishing or broadcasting (such as advertising agents and people who work in the media), and people who deal with the tobacco industry (such as sporting or cultural groups seeking sponsorship).

The TAP Act imposed restrictions on the broadcasting and publishing of tobacco advertisements. The prohibitions covered print media advertising; advertisements in the form of films, videos, television or radio and the internet; advertising on tickets; advertising of sponsorship; the sale or supply of any item containing a tobacco advertisement; and outdoor advertising on billboards or public transport.

The TAP Act permitted the sale of tobacco via direct mail, the internet and at points of sale, but, along with state and territory legislation, imposed restrictions on the advertising and promotion of tobacco.² The TAP Act was subject to several amendments to further restrict tobacco advertising and sponsorship.

11.3.1.1 Permitted advertising

All tobacco advertising and sponsorship was completely banned, with limited exceptions, by the passage of the TAP Act. ‘Accidental or incidental' publication of tobacco advertisements was permitted if the advertisement was an accidental or incidental accompaniment to the publication of other matter and the publisher did not receive any direct or indirect benefit (whether financial or not) for publishing the advertisement (in addition to any direct or indirect benefit that the person received for publishing the other matter).

An individual could publish a tobacco advertisement if not in the course of the manufacture, distribution or sale of tobacco products. The individual must have published the advertisement on their own initiative and received no benefit in doing so. For example, individuals not associated with tobacco companies wearing clothing produced overseas branded with tobacco industry trademarks would not be in breach of the TAP Act.

Advertising exceptions also extended to advertisements broadcast or published:

• during political discourse
• at point of sale, unless regulated by the state or territory
• in periodicals printed outside Australia and not principally designed for Australia
• as information in trade publications (those circulated only to the tobacco or tobacco retailing sectors)
• on aircraft during international flights.

When the TAP Act was originally passed, the then Minister for Health and Aged Care was given discretionary power to grant sponsorship exemptions to events that were of international importance that would otherwise not be held in Australia if sponsorship were banned. Several exemptions were initially granted including:³

• Formula 1 Australian Grand Prix
• Rally Australia
• Australian Ladies Masters Golf
• Whitbread Round the World Yacht Race
• America’s Cup (sailing)
• Indy Car Grand Prix
• Australian Motorcycle Grand Prix
• Winfield Cup (rugby league)
• Benson and Hedges Cup (cricket)

11.3.2 Tobacco Advertising Prohibition Amendment Act 2000 (Cth) (no longer in force)

Amendments were made to the TAP Act under the Tobacco Advertising Prohibition Amendment Act 2000 (Cth), which passed in November 2000.This included the revocation of the original discretion which permitted the Minister to grant an exemption from tobacco advertising restrictions for international sporting and cultural events.⁴ This amendment made Australia one of the first countries to legislate for an end to tobacco sponsorship of international sporting and cultural events.⁵ At the time of the amendment in 2000, there were five events of international significance that were permitted to carry tobacco sponsorship when they were staged in Australia. They were the:

• Ladies Masters (golf)
• Indy 300
• Rally Australia
• Australian Motorcycle Grand Prix
• Formula 1 Australian Grand Prix

Both the motorcycle and formula 1 grands prix continued to carry tobacco sponsorship until the 1 October 2006 deadline.⁶ At the 2007 Formula 1 Australian Grand Prix in Melbourne, the Ferrari team was the only team to continue to be sponsored by a tobacco company, in this case Philip Morris using the brand Marlboro. While the Ferrari team was not permitted to exhibit any of this sponsorship, the car and driver uniforms were ‘branded’ with a distinctive white barcode. The race team was therefore effectively promoting the well-known red and white colours of Marlboro, illustrating how advertising can still continue to function after a ban. The ‘official’ Marlboro logo continued to be used on the car in races in other nations where tobacco sponsorship is permitted.⁷ Australian formula 1 viewers continued to be exposed to this marketing through television broadcasts.

The 2000 amendment also required the Minister to report to parliament on contraventions of the TAP Act, specifically:

1. the number and nature of any contraventions occurring in the preceding 12 months
2. action taken by the Minister or the Commonwealth in response to each contravention.

The report was to be presented annually to parliament and contain information regarding prosecutions under the TAP Act. The report did not include summaries of complaints received or advertisements in breach of the TAP Act but not subsequently prosecuted.

11.3.3 Review of the Tobacco Advertising Prohibition Act 1992 (Cth)

A review of the TAP Act was announced by Trish Worth, then Parliamentary Secretary to the Federal Minister for Health and Ageing on 31 May 2002. An in-depth submission to the Australian Government Department of Health and Ageing review by the Cancer Council Australia (supported by other health groups) outlined that while the TAP Act had been successful in limiting public exposure to traditional forms of tobacco advertising, it was less effective in countering other forms of marketing.⁸ These ‘below-the-line’ forms of tobacco marketing included social networking sites, sales promotions at public events, point-of-sale advertising, ‘guerrilla marketing’ and text-message promotions.⁹

During the time of the review, the Senate Community Affairs Legislation Committee issued a report, Tobacco Advertising Prohibition, in September 2004, which recommended that changes be made to strengthen the TAP Act, particularly in the areas of film, internet and misleading promotions.¹⁰ The Tobacco Advertising Prohibition (Film, internet and Misleading Promotion) Amendment Bill 2004 (Cth) served as a proposed draft of these changes. The objectives of the bill were to:¹¹

• ensure that the intent and operation of the TAP Act maintained pace with technological advances in advertising and remained current and effective by adding internet advertising to the means of tobacco advertising which are prohibited

• prohibit the offering for sale of tobacco products on the internet
• prohibit the use of certain words in advertising which are misleading, deceptive and not conducive to public health.

In 2005, the Australian Government Department of Health issued a response to the 2002 review and concluded that the TAP Act was currently working well to protect the Australian public from advertising messages and the gains made by making amendments to the Act would be insignificant.¹² As a result, no changes to the TAP Act resulted from the review.

11.3.4 National Preventative Health Strategy

The launch of the National Preventative Health Strategy on 1 September 2009 by the then Minister for Health and Ageing, the Hon. Nicola Roxon MP, offered another opportunity to recommend significant changes to the TAP Act. The Strategy provided a blueprint for tackling the burden of chronic disease caused by obesity, tobacco and excessive consumption of alcohol. It was directed at primary prevention and addressed relevant arms of policy and available points of leverage, in both the health and non-health sectors. The Strategy comprised three parts: an overview; a roadmap for action; and technical papers focused on the three key areas of obesity, tobacco¹³ and alcohol.

The roadmap for action included the following recommendations to strengthen restrictions on tobacco advertising:¹⁴

• Eliminate promotion of tobacco products through design of packaging.
• Legislate to eliminate all remaining forms of promotion including advertising of price specials, public relations activities, payments to retailers and proprietors of hospitality venues, promotion through packaging and, as far as feasible, through new and emerging forms of media.
• Regulate to require mandatory reporting of amounts spent on any form of promotion – on payments to public relations companies or any other third parties, as well as details of any other promotional expenditure.
• Amend legislation to ensure that tobacco is out-of-sight in retail outlets in all jurisdictions.
• Make smoking a ‘classifiable element’ in movies and video games.

On 11 May 2010, the then Minister for Health and Ageing, the Hon. Nicola Roxon MP, released Taking Preventative Action, the Government’s response to the report of the National Preventative Health Taskforce,¹⁵ including the announcement of major reforms to further restrict tobacco advertising and promotion.¹⁵ Specifically, the strengthening of tobacco advertising bans by:

• developing legislation to introduce mandatory plain packaging of tobacco products from 1 January 2012 with full implementation from 1 July 2012 (see InDepth 11A Packaging as promotion: Evidence for and effects of plain packaging)
• amending the TAP Act to clarify that advertisements published via the Internet are prohibited
• introducing legislation to restrict Australian internet advertising of tobacco products, bringing the internet – and other electronic media – into line with restrictions in other media
• working with states and territories to develop an action plan for ending other forms of tobacco promotion, and for possible mandatory reporting of promotion expenditure, in the next iteration of the National Tobacco Strategy.

The Australian Government did not support additional recommendations to ban all retail tobacco displays at the national level and to include smoking as a classifiable element in movies and games at that time.¹⁶     

It remains a policy priority of the Australian Government’s National Preventive Health-Strategy 2021-2030 to eliminate all remaining tobacco-related advertising, promotion and sponsorship.¹⁷

11.3.5 Public Health (Tobacco and Other Products) Act 2023 (Cth) (in force)

The Public Health (Tobacco and Other Products) Act 2023 (Cth) commenced on 1 April 2024, replacing the Tobacco Advertising Prohibition Act 1992 (Cth) and Tobacco Plain Packaging Act 2011 (Cth).

The federal Department of Health, Disability and Ageing introduced the reforms to:

• respond to changes in the market
• deal with new and emerging products, which are used to influence consumer behaviour and undermine existing tobacco control measures, and
• meet Australia's obligations as a party to the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC).

11.3.5.1 General prohibition on tobacco advertisements

Part 2.2 of the Act prescribes a general prohibition on the advertising of tobacco products, the breach of which may constitute an offence or result in civil penalties. A “tobacco advertisement” includes any visual, aural or other form of communication, recommendation or action that directly or indirectly promotes, or is likely to promote, smoking, a tobacco product or the use of such a product to the public.

Material that is or contains any of the following is presumed to be a tobacco advertisement:

• a trade mark registered under the Trade Marks Act 1995 (Cth) in respect of goods that are or include tobacco
• a design registered under the Designs Act 2003 (Cth) in relation to products that are or include tobacco
• a trade mark, design, colour, logo, get-up or work (within the meaning of the Copyright Act 1968 (Cth)) that is evocative of, or closely associated with, a registered trade mark or design that is used, or has been used by any person at any time, in relation to tobacco
• a prohibited term in relation to the brand name or variant name of a tobacco product
• the whole or a part of the name of a person who is a tobacco manufacturer, importer, distributor or retailer and whose name appears on a tobacco product or its retail packaging.

11.3.5.1.1 Exceptions to the advertising prohibition

The Act permits several exceptions to the general tobacco advertising prohibition:

• retail packaging of tobacco products, so long as it is compliant with tobacco product requirements
• documents prepared in the ordinary course of business of a tobacco manufacturer, importer, distributor or retailer
• business signage in, on or near business premises occupied by a tobacco manufacturer, importer, distributor or retailer
• a statement that tobacco products are available from a manufacturer, importer, distributor or retailer, so long as it does not refer to tobacco brand names or variants
• communications relating to consumer matters, such as product recalls, information on consumer rights etc
• communications about government or political matters
• the performance, exhibition or distribution, in good faith, of an artistic work
• communications for genuine academic, educational or scientific purposes or other genuine purpose in the public interest
• a statement made by an author to disclose the author’s conflict of interest in relation to the work or acknowledge a contribution made to the author in connection with the preparation of the work
• publication of material for a news or current affairs report, so long as:

• • the public interest of the material outweighs any likely adverse effect
  • it is made by a person working in a professional capacity as a qualified journalist
  • no person receives a benefit from a tobacco manufacturer, importer, distributor or retailer or related body in connection with the publication
• the display of an advertisement at physical premises where tobacco products are offered for retail sale, so long as it complies with applicable state or territory laws and the display is not visible from outside the premises
• the publication of an advertisement on the internet to enable a person accessing the advertisement to purchase a tobacco product, so long as it complies with applicable state or territory laws and additional requirements prescribed under Part 2.2 of the Public Health (Tobacco and Other Products) Regulations 2024 (Cth) (such as regarding age verification, price boards, prohibited terms and images etc)
• trade communications available to, or accessible by, a group of people all of whom are involved in tobacco manufacture, importation, distribution or sale
• telecommunications and online service providers acting solely in their capacity as a carrier, carriage service provider, internet service provider or Australian hosting service provider
• hard copy periodicals printed and distributed outside Australia for the purposes of selling or supplying, or offering to sell or supply, tobacco products
• advertisement during an international flight
• in compliance with a request by, or a requirement of, an authorised officer in relation to administering or enforcing the Act.

11.3.5.2 General prohibition on tobacco sponsorships

Part 2.3 of the Act prescribes a general prohibition on tobacco sponsorships, the breach of which may constitute an offence or result in civil penalties. A “tobacco sponsorship” means any form of contribution (whether financial or otherwise) to an event, activity or person that directly or indirectly promotes, or is likely to promote, smoking, a tobacco product or the use of such a product to the public. The sponsorship ban is broad and has wide application, which is intended to apply to almost all situations bar some exceptions.

11.3.5.2.1 Exceptions to the advertising prohibition

There are two exceptions to the general prohibition on tobacco sponsorships under the Act:

• political donations and electoral expenditure to parliamentarians, election candidates, political parties, or entities associated with or campaigning for or on behalf of these individuals/entities
• statements by authors of work that is published, or intended for publication, in a periodical to disclose the author’s conflict of interest in relation to the work.

Related reading

Test your knowledge 

References

1. Department of Health and Ageing. Easy guide to the Tobacco Advertising Prohibition Act 1992. Canberra: Australian Government Department of Health and Ageing, 2007. Last update: Viewed.

2. Quit South Australia. Tobacco and the law. Adelaide: Quit South Australia, 2007. Last update: Viewed.

3. Meade A. Tobacco ad bans a threat to sport. Sydney Morning Herald, 1994; 1 Jun.

4. Tobacco Advertising Prohibition Amendment Act 2000 (Cth). Available from: https://www.legislation.gov.au/C2004A00728/asmade/tex.

5. Tobacco Advertising Prohibition Act 1992 (Cth). Available from: https://www.legislation.gov.au/C2004A04509/latest/text

6. Pyne C. Tobacco advertising banned at Australian sports, in Australian Government Department of Health and Ageing2006: Canberra.

7. Spurgeon B. Formula One: a view from the paddock. A new art to F1 photograph. New York: New York Times Blogs, 2007. Last update: Viewed.

8. VicHealth Centre for Tobacco Control Cancer Council Victoria. Submission to the Commonwealth Department of Health and Ageing review of the Tobacco Advertising Prohibition Act 1992. Melbourne: Cancer Council Australia, 2003.

9. Cancer Council New South Wales. Bad news for TAP Act, 2005: Sydney.

10. Senate Community Affairs Legislation Committee Secretariat. Tobacco advertising prohibition. Canberra: Parliament of the Commonwealth of Australia, 2004. Available from: https://www.aph.gov.au/parliamentary_business/committees/senate/community_affairs/completed_inquiries/2002-04/tob_adv_proh/report/index.

11. Tobacco Advertising Prohibition (Film, Internet and Misleading Promotion) Amendment Bill 2004 (Cth). Available from: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r4488.

12. Australian Government Department of Health and Ageing. Review of the Tobacco Advertising Prohibition Act 1992. Canberra: Australian Government Department of Health and Ageing, 2005.

13. Tobacco Working Group. Technical report no. 2. Tobacco in Australia: making smoking history. Canberra: National Preventative Health Taskforce, 2008.

14. Preventative Health Taskforce. Australia: the healthiest country by 2020. Preventative Health Taskforce: Commonwealth of Australia, 2008. Last update: Viewed.

15. Australian Government. Taking preventative action: Government's response to Australia: the healthiest country by 2020. 2010 Canberra: Department of Health and Ageing, 2010.

16. Tobacco Advertising Prohibition Amendment Act 2012 (Cth).

17. Australian Government. National Preventive Health-Strategy 2021-2030, page 51 Available from: https://www.health.gov.au/sites/default/files/documents/2021/12/national-preventive-health-strategy-2021-2030_1.pdf.