In 2011 Australia was the first country to introduce legislation which limited the ability of brand owners to use their trade marks on packaging, requiring all tobacco products to be sold in plain packaging. A primary purpose of the plain packaging legislation, coupled with other reforms such as restrictions on the advertising of tobacco products in Australia, was to reduce the attractiveness and appeal of tobacco products to consumers, particularly young people.
Similar concerns have been raised in connection with the promotion of alcohol products in Australia, particularly the exposure of children and adolescents to such content. Is the alcohol industry the next in line to face more extensive limitations on the ability of brand owners to use their trade marks? We look at some recent developments in this area.
Australian National Preventive Health Agency Draft Report
Earlier this year the Australian National Preventive Health Agency (ANPHA) released its draft report on Alcohol Advertising: The Effectiveness of Current Regulatory Codes in Addressing Community Concern(Draft Report). The current system and effectiveness of the regulation of alcohol marketing and advertising was reviewed. This followed the release of an Issues Paper on this topic at the end of 2012. Various submissions were received from a variety of stakeholders in response to the Issues Paper, including alcohol brand owners, retailers and various interest groups.
Currently, various regulations and a range of industry codes of practice exist which deal with the placement and content of alcohol advertising and managing complaints. The primary regulatory framework consists of:
- In relation to advertising placement, the Children’s Television Standards of the Australian Communications and Media Authority (ACMA) the Commercial Television Industry Code of Practice (CTICP) and self-voluntary code of the Outdoor Media Association; and
- In relation to advertising content and dealing with complaints, the Alcohol Beverages Advertising (and Packaging) Code (ABAC) and (in relation to some complaints) the Advertising Standards Bureau (ASB).
The Draft Report was essentially critical of the current framework and considered that it is failing to sufficiently protect (both as to the placement and content of current alcohol advertising) one of its primary aims, namely exposure of unsuitable content to children and adolescents.
Observations and Recommendations
A wide range of observations and recommendations were made in the Draft Report, including the following:
- Removal of the current exemption under the CTICP for free-to-air television (which currently allows direct advertising of alcohol products before 8.30pm, as an accompaniment to live sport broadcasts on public holidays and weekends);
- Restriction of direct advertising of alcohol products on subscription television before 8.30pm and after 5.00 am, as currently permitted under the Australian Subscription Television Broadcast Code of Practice;
- Provision of specific guidance on alcohol branded merchandise, sponsorship of sporting events and sponsorship of music, cultural and all other events, by amending the ABAC and Guidance documents. In addition, the inclusion of a provision bringing all forms of alcohol marketing communications under the ABAC. This would include any form of user generated content in circumstances where an advertiser has the ability to exercise some control;
- Creation of a more effective and appropriate range of sanctions and enforcement mechanisms in relation to any ABAC decisions (including publication of details of those breaching the ABAC and the nature of any breach); requirement for publishing corrections, financial penalties and the ability to recall products if in breach; and
- A full review in relation to the regulatory framework to occur in 2016, following which if it is determined that the framework is still failing to achieve the primary aims, a recommendation that new legislation be introduced to adequately control alcohol advertising and marketing to protect Australian children and adolescents.
The final Report is due to be issued shortly and we will follow its progress and any proposed actions arising from the recommendations.
Alcoholic Beverages Advertising Prohibition Bill 2012
More significant changes have also been proposed in the Alcoholic Beverages Advertising Prohibition Bill 2012 NSW (Bill), introduced by Member of Legislative Council, Reverend the Hon. Fred Nile. The second reading speech in respect of this Private Member's Bill was recently presented and debate has now been adjourned until 19 June 2014. Ultimately, if the Bill is passed, it would have significant consequences for brand owners in the alcohol industry, particularly in New South Wales.
The NSW Bill seeks to place strict prohibitions on the advertising of alcohol in New South Wales, with restrictions also placed on sponsorships, competitions and free samples involving alcoholic products. Some of the key provisions are outlined below.
The Bill outlines (in Clause 4) a broad range of objectives, including the discouragement of alcohol consumption (for example by: limiting exposure of young people and children to persuasion to drink alcoholic beverages); the reduction of alcohol related issues (including domestic violence and road accidents); the prevention of alcohol-related illness; and the reduction of the harmful impact of alcohol in the home and in workplaces and industry generally.
What constitutes an Alcoholic Advertisement?
An alcoholic advertisement has been defined as any: writing, still or moving picture, sign, symbol or other visual image or message or audible message, or a combination of two or more of them, that gives publicity to or otherwise promotes or is intended to promote:
- the purchase or use of an alcoholic beverage, or
- the trademark or brand name, or part of a trademark or brand name, of an alcoholic beverage.
The Bill proposes the introduction of a number of offences (Clause 6) essentially prohibiting commercial advertising and other promotional activities aimed at assisting the sale of alcoholic beverages and consequently reducing the incentive for people to consume alcohol. This would broadly include any advertisement which can be seen or heard from a public space, unsolicited material distributed to the public, paid radio or television advertising (or broadcasted or transmitted through any telecommunication medium), paid articles or other publications. The proposed operation of the Bill (although some provisions are specifically directed to a person doing a prohibited Act in NSW) would seem to have broader geographical effect. For example, a paid television or radio advertisement originating in Victoria which is seen or heard in NSW.
The Bill provides for a number or proposed exceptions (Clause 10), for example any advertising done within 5 years of introduction of the Bill into Parliament (or shorter period fixed by regulation) if the relevant contract or arrangement was entered into prior to the introduction of the Bill and the advertising:
- Is in a newspaper or book printed or published outside the State (if incidental to the main purpose of the newspaper or book), or
- In or on a package or carton containing an alcoholic beverage, or
- In a shop or similar retail outlet where alcoholic beverages are offered or exposed for sale, or
- On documents used in the ordinary course of business, or
- Otherwise exempted under the proposed Act.
Whilst there are exceptions, it is clear that this legislation, if it is passed, will significantly narrow the ability of brand owners in the alcohol industry to advertise their products in NSW (and more broadly throughout Australia if the advertising extends to NSW). Billboards, posters, radio and television advertisements for alcoholic beverages would become a thing of the past (at least it seems in NSW), as has already occurred in Australia in relation to the tobacco industry.
Sponsorships, Free Samples and Competitions
Importantly, the Bill also seeks to prohibit:
- Promotional competitions and other prescribed schemes designed to promote the sale, or generally to promote the drinking of, alcoholic beverages (Clause 7);
- Tthe offering, giving or distributing of free samples of alcoholic beverages to promote the sale of such products, (except to manufacturers, distributors or retailers of alcoholic beverages or their employees or at wineries, vineyards or breweries)(Clause 8);
- The promotion of, or agreements to promote, alcoholic beverages or their trademark or brand name in return for a sponsorship of some activity; and
- The provision of a sponsorship on those terms, subject to certain exceptions and exemptions (Clause 9).
A variety of penalties are proposed for a breach of the provisions of the proposed Act, for example ranging from a maximum 50 penalty units (currently $5,500) for an individual (first offence) and 200 penalty units (currently $22,000) for a corporation (first offence).
Although the matters dealt with in the Draft Report and the Bill are yet to be translated into any binding laws, the issues they address are clearly matters which have had considerable community, political and media attention in recent times and deal with matters of public concern. As such, both may gain some further momentum. We will monitor the progress of these and other relevant proposals to provide further updates on this issue.