The ACMA has investigated whether Foxtel breached its obligations in relation to tobacco advertising during two Formula 1 Grand Prix races last year.
Promoting or giving publicity to tobacco advertising is prohibited. The investigation report considered whether the broadcaster had broadcast ‘a tobacco advertisement’ as defined under the Tobacco Advertising Prohibition Act 1992 (the TAP Act) and whether the broadcaster had the requisite ‘intent’ to broadcast that tobacco advertisement.
The investigation found that logos (and registered trade marks) for vaping brand ‘Vuse’ and nicotine pouches and lozenges brand ‘Velo’, were visible throughout the broadcasts and were ‘tobacco advertisements’ as defined by law. However, the licensee was not in breach of the rules because according to the information available to the ACMA, the ACMA could not infer that the licensee intended to promote, or give publicity to, smoking or tobacco products.
The investigation also found that the logos (and registered trade marks) for ‘Mission Winnow’, which were also visible throughout the broadcasts, were not considered to be ‘tobacco advertisements’.
The investigation report noted that both the specific content and question of intention are matters that will be assessed on a case-by-case basis. The investigation report makes it clear that for a licensee to demonstrate it did not intend to promote smoking or a tobacco product, it cannot simply state that it did not consider a trade mark or logo to be a ‘tobacco advertisement’, or that it merely broadcast the content and did not produce it.
Each case will rest on its own facts. It is for the ACMA to investigate and assess those facts to determine the broadcaster’s intent concerning broadcasting content with a tobacco advertisement.