43Meaning of e‑cigarette advertisement

43 Meaning of e‑cigarette advertisement

Basic definition (1) An e‑cigarette advertisement means any form of communication, recommendation or action that promotes, or is likely to promote, the following (whether directly or indirectly): (a) vaping; (b) an e‑cigarette product or the use of such a product. E‑cigarette advertisements—elements (2) An e‑cigarette advertisement may comprise any means, or combination of means, of communication, recommendation or action (whether visual, aural or otherwise). E‑cigarette advertisements—additional effects (3) In determining whether material is an e‑cigarette advertisement, disregard whether or not the material promotes matters in addition to the matters mentioned in subsection (1). E‑cigarette advertisements—rebuttable presumption (4) Material that is or contains any of the following is presumed to promote vaping, or an e‑cigarette product or the use of such a product, 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 e‑cigarette products; (b) a design that is registered under the Designs Act in relation to products that are or include e‑cigarette products; (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 e‑cigarette products.

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

E‑cigarette advertisements—names of e‑cigarette manufacturers, importers etc. (5) Promoting the whole or a part of the name of a person constitutes an e‑cigarette advertisement if: (a) the person is a manufacturer, importer, distributor or retailer of e‑cigarette products; and (b) the person’s name appears on an e‑cigarette product, or on the wrapping of an e‑cigarette product.

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

E‑cigarette advertisements may be prescribed (6) The regulations may prescribe a kind of material to be an e‑cigarette 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 e‑cigarette advertisements).