Commonwealth Consolidated Acts

PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) ACT 2023 - SECT 20

Basic definition

  (1)   A tobacco advertisement means any form of communication, recommendation or action that promotes, or is likely to promote, the following (whether directly or indirectly):

  (a)   smoking;

  (b)   a regulated tobacco item or the use of such an item.

Tobacco advertisements--elements

  (2)   A tobacco advertisement may comprise any means, or combination of means, of communication, recommendation or action (whether visual, aural or otherwise).

Tobacco advertisements--additional effects

  (3)   In determining whether material is a tobacco advertisement, disregard whether or not the material promotes matters in addition to the matters mentioned in subsection   (1).

Tobacco advertisements--rebuttable presumption

  (4)   Material that is or contains any of the following is presumed to promote smoking, or a regulated tobacco item or the use of such an item, unless the contrary is proved:

  (a)   a trade mark that is registered under the Trade Marks Act in respect of goods that are or include regulated tobacco items;

  (b)   a design that is registered under the Designs Act in relation to products that are or include regulated tobacco items;

  (c)   a trade mark, design, colour, logo, get - up or work (within the meaning of the Copyright Act) 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 regulated tobacco items;

  (d)   a prohibited term in relation to the brand name or variant name of a tobacco product.

Note:   A defendant bears a legal burden in relation to proving the contrary (see section   13.4 of the Criminal Code ).

Tobacco advertisements--names of tobacco manufacturers, importers etc.

  (5)   Promoting the whole or a part of the name of a person constitutes a tobacco advertisement if:

  (a)   the person is a manufacturer, importer, distributor or retailer of regulated tobacco items; and

  (b)   the person's name appears on a tobacco product, or on the retail packaging of a tobacco product.

Note:   The use of the name of a person mentioned in this subsection does not constitute a tobacco advertisement in certain circumstances (see Division   3).

Tobacco advertisements may be prescribed

  (6)   The regulations may prescribe a kind of material to be a tobacco advertisement for the purposes of this Act.

  (7)   Before regulations are made under subsection   (6), the Minister must be satisfied:

  (a)   that it is appropriate to do so; and

  (b)   that making the proposed regulations would not be inconsistent with Division   3 (about exceptions to tobacco advertisements).