The roadmap for action included the following recommendations to strengthen restrictions on tobacco advertising:16
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 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.17 The Australian Government responded to each of the recommendations made by the taskforce and this included the announcement of major reforms to further restrict tobacco advertising and promotion.17 Specifically a commitment was made to strengthen tobacco advertising bans by the following actions:
developing legislation to introduce mandatory plain packaging of tobacco products from 1 January 2012 with full implementation from 1 July 2012 (see section 11.6.4 for a complete review of plain packaging including the proposed legislation)
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.
The current provisions restricting online advertising of tobacco products were introduced by the ALP with the enactment of the Tobacco Advertising Prohibition Amendment Act 2012 (Cth) (‘TAP Amendment Act’).18 These laws were enacted as part of the Government’s broader commitments on tobacco reform, but more specifically, due to the recognition that ambiguity existed as to how the TAP Act applied to online advertising and whether or not online advertising of tobacco products was permitted.
A Regulatory Impact Statement (‘RIS’) was carried out by the Centre for International Economics which included a consultation phase with stakeholders. The TAP Amendment Act progressed under the following timeline:
introduced to Parliament by the ALP on 17 November 2010;
introduced to the Senate on 23 March 2011;
received royal assent on 6 March 2012; and
the online advertising provisions commenced operation on 6 September 2012.
As a general rule, it is now an offence to publish a tobacco advertisement online. There are, however, limited circumstances in which it will not be an offence to publish a tobacco advertisement online. The main circumstances in which a tobacco advertisement can be legally published online is where the advertisement is accompanied by facilities for the purchase of tobacco products and complies with the strict provisions on online point of sale advertising.
Given the international nature of internet advertising, the TAP Act does not cover circumstances where the advertisement is published/uploaded from outside Australia and the publisher has no “Australian Link” and has not acted jointly with or assisted another publisher with an “Australian Link”.