20Meaning of tobacco advertisement

20 Meaning of tobacco advertisement

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).