Who controls advertising in Australia?

• How targeted advertising works, including cookies
• What happens when you opt out of targeted ads

When an organisation tries to match the ads you see while browsing online with your interests, this is called targeted advertising. It's also called interest-based advertising or online behavioural advertising. Advertising and data collection organisations do this by placing a ‘cookie’ on your computer, smartphone or tablet.

Interest categories, based on the websites you visit, are attached to these cookies and can allow online advertisers to build up a picture of your browsing habits and interests. These interest categories can then be used to deliver ads.

Many ads on websites aren’t placed there by the website you visit, online advertising networks supply them. An online advertising network may deliver ads to many websites and may be able to track your browsing activities across many sites. The website you visit may also have its own analytics tools and trackers running to collect information, such as how many people visit the site, how long they stay, and how they navigated to the website.

Is your privacy protected?

The Privacy Act 1988 (Privacy Act) applies to personal information, which, broadly speaking, is information that can be used to identify you. The information an online advertiser collects is often not enough to identify you — it might just be general information about your interests and the websites you’ve visited. So an organisation that uses targeted advertising may not need to comply with the rules in the Privacy Act about how personal information is handled.

However, it’s important to remember that new technologies are making it easier for the information that you give when you are online to be combined. This is called data aggregation.

What is a cookie?

A cookie is a small data file stored on your device’s browser. Its purpose is to help a website keep track of your visits and activity.

You will usually find information on cookies and how to manage them under options or settings on your browser. You can choose to see cookies before deleting them and to keep cookies from some websites. Setting your browser to block all cookies may make some websites take longer to load and stop you saving customised settings such as text sizes, location or sign in information.

Different types of cookies

A first-party cookie is sent from a website to your web browser when you visit that site. This is how a website remembers things like your customised settings (such as your location), your shopping cart contents and your sign-in details.

A temporary cookie only lasts for one browsing session (until you close your browser). A persistent cookie remains on your computer after you close your browser and will be sent back to the website each time you visit.

A third-party cookie is sent by an organisation that supplies content (like advertising) on websites that you visit. Many websites feature advertising from third parties and those third parties may use cookies to track your browsing activities.

Another type of cookie is the local stored object (LSO), also known as a Flash cookie. You can only get Flash cookies if you have Adobe Flash Player plugin installed in your browser. A Flash cookie can store much more data than a browser cookie and is not affected by the same rules. For example, a browser cookie is confined to a single browser, has an expiry date and is deleted when you clear cookies from your browser. A Flash cookie does none of these things. You need to manage Flash cookies on the Settings page in Adobe Flash Player or in the online Adobe Flash Player Website Storage Settings panel.

Use a web browser’s privacy features

Different web browsers have different settings and features that you can use to help control your personal information online. Common options include deciding whether to accept cookies and how long to allow them to stay on your device. Many browsers allow you to view in private mode, which usually means your browsing history won’t be saved to your device, but it doesn’t mean the browser will automatically block all tracking of your activities online.

Opting out of targeted advertising

Some organisations that deliver targeted advertising give users the options of viewing their profile, editing it or opting out of receiving targeted ads. Choosing to opt out won’t remove advertising from the pages you visit — it means the ads you see won’t be matched to your interests.

You can opt out of Facebook, Google, Twitter or Instagram by looking under its account settings.

You can visit Your Online Choices and do a blanket opt-out for the organisations who signed up to Your Online Choices. When you opt out of receiving targeted ads, this information is usually saved on a cookie. Often this means that if you clear your cookies, you’ll have to opt out again.

Choosing to opt out of receiving targeted ads doesn’t always mean that information about your browsing habits won’t be collected. There are tools available which will help you see which trackers are active on web pages you visit and allow you to block them. For example, Ghostery.

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There are rules about what ads can be broadcast on TV and radio.

There are also rules about gambling ads on TV and radio.

Legislation and regulation

Legal framework

What are the principal statutes regulating advertising generally?

Advertising in Australia is primarily regulated under the Australian Consumer Law (Schedule 2, Competition and Consumer Act 2010 (Cth)) (ACL), which prohibits misleading or deceptive conduct, or conduct likely to mislead or deceive, in trade or commerce.

The ACL also prohibits specific false or misleading representations, including representations concerning:

• the standard, quality, value, grade, composition, style, model, history or previous use of goods;
• the standard, quality, value or grade of services;
• the price of goods or services;
• testimonials about goods or services;
• the availability of repairs and spare parts for goods;
• the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including about a requirement to pay for a contractual right that a person has at law);
• place of origin of goods; and
• sponsorship, approval, affiliation, performance characteristics, accessories, uses or benefits of goods or services.

The ACL is supplemented by a number of voluntary, self-regulatory industry codes. This includes a series of codes administered by the Australian Association of National Advertisers (AANA), the most broad-reaching of which is the AANA Code of Ethics, which mandates standards for advertising in any medium.

There are also restrictions and requirements, under statutes and self-regulatory industry codes, for the advertisement of particular products and services including:

• tobacco;
• gambling;
• therapeutic goods;
• telecommunications services;
• financial products and services;
• consumer credit;
• alcohol;
• food and beverages;
• motor vehicles;
• marketing to children;
• environmental claims; and
• weight management.

Radio and television advertising is subject to additional regulation under the Broadcasting Services Act 1992 (Cth) and related industry codes including the Commercial Radio Code of Practice 2017 and the Commercial Television Industry Code of Practice 2015.

Regulators

Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?

The main bodies responsible for enforcing laws and regulations on advertising are given below.

Australian Competition and Consumer Commission

The Australian Competition and Consumer Commission (ACCC) is the primary body tasked with enforcing the ACL across Australia. In addition, state and territory consumer protection agencies have powers to enforce the ACL in their applicable state or territory.

Ad Standards

The self regulatory system administered by AANA includes two tribunals set up to resolve complaints under the AANA Codes. These are Ad Standards (which resolves consumer complaints) and the Ad Standards Industry Jury (which resolves competitor complaints).

Australian Communications and Media Authority

Radio and television advertising is also regulated by the Australian Communications and Media Authority (ACMA). Complaints about compliance with a broadcast industry code are required to be made direct to the broadcast licensee, and the ACMA deals with any unresolved complaints. Complaints about compliance with a standard (eg, the Children’s Television Standard or the commercial radio standards) can also be made directly to the ACMA.

Industry specific regulators

Industry specific laws and regulations are administered and enforced by a range of different regulators. For example, the Therapeutic Goods Advertising Code is administered by the Therapeutic Goods Administration. The Telecommunications Consumer Protections Code, which regulates advertising of telecommunications goods and services, is administered by the ACMA.

Regulators’ powers

What powers do the regulators have?

The ACCC has very broad powers. Where a corporation has made a false or misleading representation in advertising, the ACCC has the power to bring court proceedings seeking pecuniary penalties up to an amount that is the greater of A$10 million, three times the value of the benefit received or 10 per cent of annual turnover in the preceding 12 months, if the court cannot determine the benefit obtained from the offence. In addition, the ACCC can seek other orders such as injunctions, declarations, orders for corrective notices, orders for compliance programmes and compensatory orders.

As an alternative to court proceedings, the ACCC may impose administrative remedies, which can include either or both:

• infringement notices imposing fines of up to A$12,600 per contravention; and
• court enforceable undertakings (which usually include a commitment not to engage in similar conduct in the future, corrective measures, compliance programme commitments and ongoing monitoring for the duration of the undertaking).

Regulators’ priorities

What are the current major concerns of regulators?

Each year, the ACCC publishes its enforcement policy and priorities. During 2018, the ACCC identified, among other things, misleading broadband speed claims and misleading claims about consumer guarantees as key focus areas. Advertising in the telecommunications sector continues to be a focus of the ACCC. In addition, we have seen recent enforcement activities by the ACCC relating to implied health claims in the food sector.

Industry codes

Give brief details of any issued industry codes of practice. What are the consequences for non-compliance?

There are a number of product specific-industry codes of practice that regulate advertising in Australia. These include the following self-regulatory codes:

• the Alcohol Beverages Advertising Code (ABAC);
• the AANA Code for Marketing and Advertising Communications to Children;
• the AANA Food and Beverages Advertising and Marketing Communications Code;
• the AANA Environmental Claims Code;
• the AANA Wagering Advertising and Marketing Communication Code;
• the Responsible Children’s Marketing Initiative (RCMI) and the Quick Service Restaurant Initiative for Responsible Advertising to Children, both managed by the Australian Food and Grocery Council; and
• the Code of Practice for Motor Vehicle Advertising published by the Federal Chamber of Automotive Industries.

With the exception of the ABAC, all of these codes are administered by Ad Standards in response to consumer complaints. Ad Standards can direct an advertiser to withdraw or modify an advertisement that it considers to breach any of the codes. Decisions made by Ad Standards are not legally binding but tend to be followed in practice.

Complaints concerning alcohol advertising under the ABAC are determined by a separate panel appointed under the ABAC Scheme. Where a complaint is upheld, the advertiser will be asked to withdraw or modify the advert within five business days. Decisions of the ABAC panel are not legally binding but tend to be followed in practice.

Authorisation

Must advertisers register or obtain a licence?

Generally, there is no need to register or obtain a licence in order to advertise in Australia.

Businesses that advertise and sell certain regulated goods or services (eg, telecommunications services, therapeutic goods and financial products and services) may need to register with an industry specific regulator or obtain advance authorisation.

Clearance

May advertisers seek advisory opinions from the regulator? Must certain advertising receive clearance before publication or broadcast?

Television commercials and infomercials must be classified by Commercials Advice (CAD) before they can be broadcast on free to air television. CAD also offers a voluntary and confidential Pre-Check service, which can be requested during the early stages of production.

Separately, there is a voluntary Alcohol Advertising Pre-Vetting Service through which advertisers can obtain some assurance (but no guarantee) about how proposed alcohol advertising would likely be treated by ABAC in the event of a complaint.

In April 2018, Ad Standards launched a new voluntary copy advice service to provide advice on proposed advertising material and assist advertisers to comply with the various codes administered by the AANA.

Private enforcement (litigation and administrative procedures)

Challenging competitors advertising

What avenues are available for competitors to challenge advertising? What are the advantages and disadvantages of the different avenues for challenging competitors’ advertising?

There are two main avenues for competitors to challenge a competitor’s advertising:

• via a complaint to a regulator, including for example to the ACCC or the Ad Standards Industry Jury under the AANA Codes. The Ad Standards Industry Jury complaints process is relatively inexpensive and quick. The main disadvantage is that determinations are not legally binding; and
• via a civil complaint and litigation. Competitors may commence proceedings in the Federal Court of Australia for contravention of the ACL. A civil action may include a claim for urgent interlocutory relief to compel the advertiser to withdraw or cease use of an advertisement, and also seek damages and corrective advertising. The advantages of civil action is that it is a public, enforceable determination and courts are empowered to grant strong remedies, which may act as a deterrent. The disadvantages are that court proceedings can be costly and resource-intensive and may attract unwanted media attention.

Public challenges

How may members of the public or consumer associations challenge advertising? Who has standing to bring a civil action or start a regulatory proceeding? On what grounds?

Members of the public or consumer associations can challenge advertising by making a written complaint to Ad Standards on the basis that the advertising contravenes one or more provisions of an applicable AANA Code. Members of the public or consumer associations may also file a complaint with the ACCC seeking regulatory action for contravention of the ACL.

Members of the public and consumer associations will also have standing to bring civil action for contravention of the ACL.

Burden of proof

Which party bears the burden of proof?

The complainant bears the burden of proof on the balance of probabilities.

Remedies

What remedies may the courts or other adjudicators grant?

The court has a broad discretion on remedies including the grant of injunctions, delivery up, corrective advertising, damages or an account of profits. If an action is commenced by the ACCC, the court may also grant fines.

Complaints made through Ad Standards are not subject to monetary damages or fines. If Ad Standards finds that a complaint is upheld, it can direct the advertiser to either withdraw or modify the advertisement. Such directions are not legally binding but are typically followed in practice.

The ACCC also has a broad range of enforcement powers, including the power to issue an infringement notice requiring payment of a fine where it has reasonable grounds to believe that a person has made false or misleading representations in advertising.

Length of proceedings

How long do proceedings normally take from start to conclusion?

Court proceedings can take anywhere from 12 to 24 months (excluding any appeals) depending on the complexity of the matter. The more complex a matter, the greater the number of hearings and the evidence required, resulting in a longer proceeding. An urgent interlocutory injunction may be concluded in a matter of days, weeks or months depending on the urgency of the matter.

Cost of proceedings

How much do such proceedings typically cost? Are costs and legal fees recoverable?

The cost of court proceedings depends on the factual circumstances of the case and associated evidence, whether or not the claim proceeds to trial and whether appeals are filed. The costs of proceedings range from tens of thousands of dollars in a simple matter, to hundreds of thousands of dollars or in excess of A$1 million for complex, lengthy cases. Court costs and legal fees may be recoverable for the successful party at the discretion of the court.

Appeals

What appeals are available from the decision of a court or other adjudicating body?

Where a complaint is made through Ad Standards, parties do not have the right to appeal decisions. Where either the complainant or respondent is not satisfied with the decision of the panel, a party can request an independent review within 10 days of the decision.

Applicants and respondents have the right to appeal decisions from a single federal court judge to the full court of the Federal Court. A decision can be appealed from the full court to the High Court of Australia by way of application for special leave.

Misleading advertising

Editorial and advertising

How is editorial content differentiated from advertising?

Failure to adequately distinguish advertising content from editorial content may amount to false, misleading or deceptive conduct in contravention of the ACL. The ACCC has issued a guide relating to online reviews that outlines principles of relevance to native advertising (see question 23 for further detail).

In addition, the AANA Code of Ethics requires advertising content (both broadcast and non-broadcast) to be clearly distinguishable as such to the relevant audience. The AANA has issued a Best Practice Guideline for Clearly Distinguishable Advertising to assist advertisers to understand their disclosure obligations. The guidelines do not require all advertisements to be identified, nor do they mandate the format in which disclosure must be made. As such, advertisers in Australia still have a degree of flexibility as to how they communicate that advertising content is commercial in nature. In each case, the overall appearance of the content must be considered, taking into account the similarity with any non-advertising or editorial content that may appear in combination with the advertising communication.

Advertising that requires substantiation

How does your law distinguish between ‘puffery’ and advertising claims that require support?

The term ‘puffery’ is not defined in any statute in Australia, but is commonly understood as referring to claims that are so exaggerated or fanciful that no reasonable consumer could possibly be expected to rely on them when making a purchasing decision. In that sense, a claim that is a ‘mere puffery’ is not required to be substantiated. Examples of puffery provided by the ACCC include ‘best steaks on earth’ and ‘tastiest food in town’.

Rules on misleading advertising

What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?

Advertising must not be misleading or deceptive, or likely to mislead or deceive, when viewed from the perspective of the ordinary, reasonable consumer. When assessing whether advertising is likely to mislead or deceive, consideration must be given to the advertising content as a whole. Advertising must include sufficient information to ensure the reasonable consumer is not led into error. While disclaimers and footnotes are permissible, their use can be problematic and is often the subject of dispute. Disclaimers and footnotes can be used to qualify or explain a headline claim, but must not be inconsistent with a headline claim.

Particular care should be taken when using disclaimers and footnotes in advertising that is displayed transiently, such as in television commercials.

Substantiating advertising claims

Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?

There is no prescribed requirement that an advertiser hold proof of the claims it makes in advertising before publishing; however, an advertiser must be in a position to substantiate all claims that are made and the ACCC has the power to issue a substantiation notice requiring an advertiser to substantiate its claims within 21 days. Failure to comply with a substantiation notice is an offence.

Survey results

Are there specific requirements for advertising claims based on the results of surveys?

No. Claims based on the results of surveys are not subject to any specific laws or regulations but such claims will be subject to the principles outlined above. Where a survey is required to substantiate a claim, it will usually be prudent to involve an expert market research agency to help design and conduct the survey. This can help ensure that the survey questions actually support the desired claim, and that the survey results are statistically significant.

Comparisons with competitors

What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?

Comparative advertising is subject to the same laws and regulations as all other advertising; namely, it must not mislead or deceive or be likely to mislead or deceive (or constitute the making of a false representation). While the rules are the same, comparative advertising typically provokes close scrutiny by competitors and regulators so there is usually a high burden to ensure that comparative claims are not misleading for the life of the campaign.

It is permissible to identify a competitor by name; however, reproduction of a competitor logo or other artistic work may give rise to liability for copyright infringement. Any reference to a competitor should ordinarily be limited to a factual, descriptive use of the competitor’s name for the purpose of making the comparison.

Test and study results

Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?

No. Claims that refer to tests or studies are not subject to any specific regulation in Australia beyond the general requirement to be truthful, accurate and capable of substantiation so as not to mislead or deceive. Claims relating to superiority, however, are likely to be the subject of close scrutiny by competitors and regulators.

Demonstrating performance

Are there special rules for advertising depicting or demonstrating product performance?

Claims that depict or demonstrate product performance must be truthful, accurate and capable of substantiation so as not to mislead or deceive. In addition, representations about performance features may amount to an express warranty that goods will perform as described. If the claim does not hold true, consumers may be able to assert rights and obtain a remedy under the consumer guarantee provisions of the ACL. When making performance claims, particular care must be taken not to mislead consumers about their consumer guarantee rights under the ACL. It must be clear that any express warranty is additional to, and does not limit or modify, the consumer guarantees under the ACL.

Third-party endorsements

Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief or experience?

The ACL prohibits representations relating to fictitious testimonials. It also prohibits genuine testimonials where the testimonial is misrepresented or misquoted. There is a rebuttable presumption that representations concerning testimonials are misleading.

The ACCC has published a guide on its website regarding online reviews and testimonials. It provides three guiding principles:

• be transparent about commercial relationships;
• do not post or publish misleading reviews; and
• the omission or editing of reviews may be misleading.

Generally speaking, reproducing or publishing a review will require consent from the author of the review. Given that there is a rebuttable presumption that testimonials are misleading, advertisers should retain evidence of any endorsement or testimonial.

Guarantees

Are there special rules for advertising guarantees?

Yes. Warranties against defects must be presented to consumers in accordance with specific requirements set out in the ACL. In particular, they must be in writing and:

• expressed in a transparent way (ie, using plain language, legible and presented clearly);
• contain the warrantor’s name, business address, phone number and email address (if any);
• include details of relevant claim periods and procedures; and
• include a statement that the rights under the warranty are additional to the consumer guarantees.

In addition, a document evidencing a warranty against defects must include certain mandatory text to ensure consumers are aware that any warranty against defects operates in addition to consumers’ rights under the ACL. The mandatory text differs depending on whether the warranty against defects relates to goods or services or both, and is set out in Regulation 90 of the Competition and Consumer Regulations 2010.

Particular care must be taken not to incorrectly suggest that consumers are required to pay for rights that are automatically conferred under the ACL or that any warranty is in place of their statutory rights under the ACL.

Environmental impact

Are there special rules for claims about a product’s impact on the environment?

Environmental claims must be truthful, accurate and capable of substantiation so as not to mislead or deceive. Particular care should be taken when using broad terms that are capable of many different meanings including, for example, ‘green’, ‘environmentally safe’ and ‘environmentally friendly’. Environmental claims such as ‘carbon neutral’ are often scrutinised by the ACCC, consumers, consumer interest groups and competitors so there is a high burden to ensure that such claims are accurate and capable of substantiation.

The ACCC has released a number of guidelines regarding environmental claims including a guide to Green Marketing and the ACL. In addition, the AANA administers the AANA Environmental Claims Code, which provides a set of broad principles in relation to environmental claims.

Free and special price claims

Are there special rules for describing something as free or a free trial or for special price or savings claims?

No, however these types of claims are subject to the general requirement that advertising must not be false or misleading. It would likely be misleading if, for example, a product is advertised as ‘buy one, get one free’ where the price of the first product is increased to cover all or part of the cost of the second (free) item.

This principle similarly applies in respect of pricing and saving claims. For example, it is likely misleading to describe a product as being on ‘sale’ when it has never been sold at the original listed price.

The ACL also prohibits the offering of goods or services at a specified price if the person reasonably believes they will not be able to offer the good or service for a reasonable period and in reasonable quantities (bait advertising). Businesses should specifically state whether any ‘free’ or ‘sale’ products are limited in time or quantity.

New and improved

Are there special rules for claiming a product is new or improved?

There are no special rules regarding the advertisement of goods as ‘new’ or ‘improved’; however, businesses should consider whether such claims are likely to mislead or deceive consumers as to the qualities or characteristics of the products, or that they are of a particular standard, quality, style or model.

Claims of origin

Are there special rules for claiming where a product is made (such as country of origin)?

Packaged food products imported and sold in Australia must comply with the Country of Origin Food Labelling Information Standard 2016, which requires that prescribed marks be displayed on packaging depending on whether the product is grown or made in Australia. These ‘standard marks’ include text and graphic labels that indicate whether the food is a product of Australia or made or packed in Australia from a percentage of Australian ingredients.

Prohibited and controlled advertising

Prohibited products and services

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).

Prohibited advertising methods

Are certain advertising methods prohibited?

See question 44 regarding spam.

Protection of minors

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.

Credit and financial products

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).

Therapeutic goods and services

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.

Food and health

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.

Alcohol

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.

Tobacco

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.

Gambling

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.

Lotteries

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.

Promotional contests

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.

Indirect marketing

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.

Other advertising rules

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.

Social media

Regulation

Are there any rules particular to your jurisdiction pertaining to the use of social media for advertising?

General consumer protections under the ACL apply to social media in the same way that they apply to traditional advertising mediums.

The ACCC has indicated that:

• endorsements by celebrities in respect of a product or service that they have never used is likely to be false, misleading or deceptive;
• where false or misleading claims are made by others in posts or comments on a company’s social media pages, the company may be held responsible if it fails to remove the statements;
• companies may respond to, instead of deleting, posts so long as the response sufficiently detracts from the false or misleading representation in the original post or comment; and
• companies may be expected to dedicate time and resources to monitoring their social media pages based on their size and number of followers (based on the number of consumers who may be misled by any false or misleading post).

While the AANA Code of Ethics requires that all advertising must be clearly distinguishable, there are no laws or regulations that dictate how disclosure should be made. The AANA recommends:

• disclosing where content is the product of a collaboration between the brand and the person posting the content;
• including an express statement that content is promotional, for example, incorporating tags or hashtags (#brand #ad) in the advertising; and
• disclosing whether a product or service has been provided to the poster for free, where there is a stipulation that a social media comment be posted or comments are suggested by the brand (ie, the ability to exercise control over content is relevant).

Have there been notable instances of advertisers being criticised for their use of social media?

There has been an increasing number of consumer complaints to Ad Standards about the use of influencers to advertise products in circumstances where it is not obvious that the content is advertising, particularly on social media platforms that are visible to children.

Separate to these complaints, a number of advertisers have been publicly criticised for their use of social media, particularly where paid posts were not disclosed.

Are there regulations governing privacy concerns when using social media?

Yes, to the extent that personal information is being collected, held, used or disclosed, the Privacy Act 1988 (Cth), and the Australian Privacy Principles (APPs) contained therein, will likely apply.

Of relevance to advertising, including via social media, the APPs require that entities:

• implement practices, policies and procedures to ensure that personal information the entity collects about individuals is managed in an open and transparent way; (APP 1);
• not collect personal information unless doing so is reasonably necessary to the entity’s functions or activities (APP 3);
• notify individuals of certain matters, including that their personal information has been collected (APP 5);
• not use or disclose personal information for a secondary purpose where it was collected for a primary and different purpose (AAP 6);
• not disclose personal information about an individual for the purpose of direct marketing (APP 7);
• take steps to ensure the security of personal information that the entity holds(APP 11);
• if requested, allow individuals access to their personal information (APP 12); and
• take steps to correct personal information it holds about an individual (APP 13).

Additionally, businesses that send commercial electronic messages (including via email, SMS, MMS and instant message) must comply with the Spam Act 2003 (Cth). Commercial electronic messages must be sent only with the consent of the recipient. In addition, any commercial electronic message must identify the name and contact details of the sender and include a functional unsubscribe facility.

Update and trends

Recent developments

Updates and trends

The ACL has recently been amended to introduce a significant increase in the scale of penalties for certain breaches of the ACL, including for false or misleading representations in advertising. Australia’s consumer law penalty regime is now the same as the penalty regime for anti-competitive conduct. As a result there is an increased focus on ACL compliance by client management teams and boards of companies across many industry sectors in Australia.

Content is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This may qualify as "Attorney Advertising" requiring notice in some jurisdictions. Prior results do not guarantee similar outcomes. For more information, please visit: www.bakermckenzie.com/en/client-resource-disclaimer.