Prohibited and controlled advertising in Australia

Prohibited and controlled advertising

What products and services may not be advertised?

The Therapeutic Goods Act 1989 (Cth) prohibits the advertising of certain therapeutic goods directly to the public and therapeutic goods that are not entered on the Australian Register of Therapeutic Goods (ARTG) (see question 33 for further detail).

Additionally, the advertising of tobacco products is heavily restricted (see question 35 for further detail).

Are certain advertising methods prohibited?

See question 44 regarding spam.

What are the rules for advertising as regards minors and their protection?

A range of self-regulated industry codes apply to advertising that is aimed primarily at children, including the following AANA Codes:

• the AANA Code of Ethics requires that advertising be clearly distinguishable as advertising to the relevant audience, which, for children, may require explicit disclosure;
• the AANA Code of Advertising and Marketing to Children regulates advertising to children aged 14 years or younger; and
• the Food and Beverages Advertising and Marketing Communication Code includes requirements specific to advertising food and beverages.

Other codes and guidelines applicable to particular industries or mediums, which may impose more specific but generally consistent requirements, include:

• the ABAC Responsible Alcohol Marketing Code restricts placement of alcohol advertising to avoid exposure to minors;
• the Responsible Children’s Marketing Initiative and Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children restrict the advertising of unhealthy food content directed primarily at children;
• the Australian Subscription Television and Radio Association (ASTRA) Subscription Television Codes of Practice restricts advertising broadcast during programming aimed at children;
• the Commercial Television Industry Code of Practice restricts the broadcast of advertising for particular products and services, with reference to programmes that are directed at children; and
• the Children’s Television Standards 2009 regulates advertising during specified periods, sets maximum advertising times, and requires advertisements and sponsorships be distinguishable to children.

Are there special rules for advertising credit or financial products?

Yes, there are special rules for advertising credit or financial products including, pursuant to the National Consumer Credit Protection Act 2009 (Cth), the Corporations Act 2001 (Cth) and the Australian Securities and Investment Commission Act 2001 (Cth) (ASIC).

ASIC’s Regulatory Guide 234: Advertising Financial Products and Services (including credit): Good Practice Guidance contains good practice guidance to help promoters of financial products and services, including credit, to comply with their legal obligations. Key principles include the importance of presenting balanced messages, prominent display of warnings, giving realistic impressions and realistic expectations (as to fees and costs, as well as the nature and scope of the product or service), and ensuring the target audience’s clear understanding of the content (eg, by avoiding jargon and overly complicated graphic presentations).

Are there special rules for claims made about therapeutic goods and services?

Yes. The advertisement of therapeutic goods is highly regulated.

Medicines and medical devices must be registered on the ARTG before they can be advertised, and then only within their approved indications and purposes. Advertising prescription therapeutic goods directly to the public is prohibited.

The Therapeutic Goods Act 1989 (Cth) and related regulations and codes including the Therapeutic Goods Advertising Code contain a range of prescriptive requirements in relation to claims relating to therapeutic goods.

The Health Practitioner Regulation National Law (National Law) regulates a range of health services and the provision of such services.

Section 133 prohibits advertising of regulated health services that:

• is false, misleading or deceptive;
• offers an inducement without stating terms and conditions of such offer;
• uses testimonials about the service or business;
• creates an unreasonable expectation of beneficial treatment; or
• encourages the indiscriminate or unnecessary use of regulated health services.

Healthcare workers outside of the above industries (eg, speech pathologists, audiologists) may be covered by various other state and territory based codes of conduct.

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

Yes. Standard 1.2.7 and Schedule 4 of the Australian New Zealand Food Standards Code contain conditions that must be satisfied in order to make health claims or nutrition content claims in respect of foods.

Standard 1.2.7 prohibits nutrition content claims that imply that a product has a slimming (or similar) effect.

Standard 1.2.7 also prohibits certain types of claims including nutrition and health claims about certain foods (eg, kava and infant formula), therapeutic claims (eg, that the food can prevent, diagnose, cure or alleviate a condition) and claims comparing the vitamin and mineral content of different foods.

What are the rules for advertising alcoholic beverages?

The content and placement of alcoholic beverage advertising is governed by the ABAC. Advertising content must not, among other things:

• show or encourage irresponsible and excessive portrayals of alcohol consumption;
• have a strong appeal to minors, or prominently depict minors and adults aged under 25 years;
• suggest that alcohol creates or contributes to mood or environment or to achievements or success, or is an aid to relaxation; or
• show consumption before or during activities requiring alertness and physical coordination (eg, driving or swimming).

While voluntary, signatories to the ABAC Scheme encompass the majority of Australia’s alcohol companies.

What are the rules for advertising tobacco products?

Under the Tobacco Advertising Prohibition Act 1992 (Cth), tobacco advertisements must not be broadcast or published (including electronically) in Australia. Key exceptions to this general restriction include political discourse, anti-smoking advertisements, tobacco trade communications, accidental or incidental broadcast or publication, and point-of-sale advertising, where permitted by state or territory legislation.

Point of sale advertising is regulated by states and territories. For example, in New South Wales, the Public Health (Tobacco) Act 2008 and the Public Health (Tobacco) Regulations 2016 prohibits, inter alia, the display of tobacco advertisements that can be seen or heard from a public place.

Are there special rules for advertising gambling?

Industry-developed codes regulate betting and gambling advertisements both generally and during live sports events; for example, Commercial Radio Australia Radio Code of Practice, Free TV Commercial Television Industry Code of Practice and ASTRA Subscription Broadcast Television Code of Practice.

Responsible gambling messages must accompany gambling advertising and promotion of betting odds. The codes also require that representatives of gambling organisations who promote betting odds must be clearly identified, and clearly separated from the commentary team and the sport venue. Promotion of betting odds and gambling advertised is prohibited for a period five minutes prior to the scheduled start of play until five minutes after the end of play, for live sports events broadcast between 5.00am and 8.30pm. Outside these times, restrictions apply to play and half-time periods (to protect child audiences). The Broadcasting Services (Online Content Service Provider) Rules 2018, extends similar rules to gambling promotional content provided on an online content service in connection with live sport streaming.

The Interactive Gambling Act 2001 (Cth) contains prohibitions on the advertisement of specified prohibited interactive gambling services and unlicensed regulated interactive gambling services.

Further, the AANA Wagering Advertising and Marketing Communication Code requires that the content of gambling advertising must not:

• be directed at or depict minors;
• depict persons aged 18-24 years engaging in gambling;
• encourage gambling in combination with alcohol consumption;
• state or imply a promise or winning;
• encourage gambling as a means of relieving financial or personal difficulties;
• state or imply a link to sexual success or attractiveness;
• encourage or depict excessive participation in gambling; or
• encourage or depict peer pressure.

On a state and territory level, varying degrees of gambling advertising regulations have been adopted. For example, New South Wales has adopted a particularly strict approach which is contained in Parts 4 and 4A of the Betting and Racing Act 1998 and Part 7 of the Totalizator Act 1997 and focus on gambling inducements (such as to open an account, participate, or participate frequently), which are prohibited even with a disclaimer.

What are the rules for advertising lotteries?

The conduct of lotteries and their advertisement is regulated by states and territories. The AANA Code of Ethics has also been incorporated into various state and territory codes. Legislation is supplemented by the Australian Lottery Blocs Code of Practice, which has been adopted by all the major lottery blocs operating in Australia.

Generally, lottery advertising must not:

• encourage a breach of the law;
• suggest entering the lottery will definitely lead to winning or an improved financial situation;
• be false, misleading or deceptive;
• target minors (or people who are not able to legally participate in the relevant jurisdiction);
• show or encourage alcohol consumption;
• be offensive or indecent; and
• explicitly target vulnerable or disadvantaged groups.

Lottery blocs must provide sufficient information about prizes and the chances of winning, relevant rules, and player support services so that players can make informed choices, and encourage winners of major prizes to seek independent financial advice to manage their winnings.

What are the requirements for advertising and offering promotional contests?

Any advertisement for a trade promotion lottery that involves an element of chance must contain certain information pursuant to laws and regulations in the relevant state or territory. This typically includes disclosure of the permit number (where applicable), how to enter the competition, the nature and value of the prizes and a way to access the lottery’s full terms and conditions.

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

Indirect marketing strategies that obscure the promotional nature of content may breach section 2.7 of the AANA Code of Ethics, which requires that advertising be clearly distinguishable (see question 15 above for further detail).

Sponsorship by tobacco products and tobacco manufacturers and distributors is expressly prohibited. For example, section 20 of the Public Health (Tobacco) Act 2008 (New South Wales) prohibits:

• any scholarship, prize, gift or other benefit; and
• any financial arrangement (other than a genuine contract of employment or a genuine contract for services) through the medium of sporting, arts, youth, educational or other like activities.

Briefly give details of any other notable special advertising regimes.

The Electoral Act 1918 (Cth), Broadcasting Services Act 1992 (Cth) and state and territory legislation govern election advertising. Key concerns are transparency about and accountability of the communicator. Authorisations must be included in election advertising for non-broadcast mediums and for political advertising generally for broadcast mediums.