There is clearly a problem in enforcement of the Act.
Much tobacco advertising is visible from public places from point
of sale premises. This is by contrived signs placed deliberately
to be seen through the glass. However many items at the point
of sale are advertisements in the public perception, yet no action
is taken to oppose them.
Specific Sections and Comments
The definition of a tobacco advertisement must be strengthened
to include the following item.
Point of sale displays, or displays in other places must not use
packs, cartons or other images that have been associated with
tobacco brand names to create an advertising effect. In other
words, if the overall effect of a display is to give prominence
to a tobacco brand name or images, colours, icons, trophies, events
or logos singly or in combinations that are associated with tobacco
that display shall be prohibited. The words 'icon,' 'event' and
'trophy' are particularly important, as the companies are likely
to seek to use the images that they have created. It might be
noted that in a display in 1987 in service stations, a Marlboro
touring car that had not raced since 1981 was used in the photo
display. The use of 'historical flashbacks' in a marketing context
therefore must also be guarded against.
Section 4c which gives an exemption to packages or cartons must
be repealed. Tobacco companies and retailers are building display
piles of cigarette packs or cartons or are building cases for
current stock that are designed to give massive prominence to
Section 5(4)e needs to be modified for point of sale, as images
in the same colours as the cigarette pack and with pictures consistent
with its image and its target market are being used close to the
'ad' so that the ad is stretched and given greater impact. Section
5, which supposedly renders Section 4e obsolete, has not done
so. Items that should be covered by Section 4e remain a problem.
Section 12 must be repealed. There is a long history of Ministers
giving exemptions. Most recently Dr Carmen Lawrence has done this.
The law must remain absolute and there should be no ministerial
discretion to break it. NSMA therefore submits that all of Section
12 be deleted. Failing this, Section 12 (6) should be deleted
so that the exemptions end on 1 November 1995. It is ridiculous
to make a law which comes into force with the last state in Australia.
The Tobacco Advertising Prohibition Committee should be
disbanded. It has clearly finished its function, and the tobacco
industry has no place in discussions about health regulations
with an appalling record of delaying and evading health initiatives.
Part 4- Enforcement
The problem with the is section does not lie in the power of the
law, but in the fact that few people are trained or paid to administer
it. In fact to all appearances, no one challenges the cigarette
ads, and certainly no one removes them. It is also said by those
involved in health promotion, that if a store is challenged about
one type of ad, they agree to remove it, but almost immediately
replace it by a different one that has the same effect on the
viewing public. Indeed, it is quite convenient for the retailer
to put a new ad, relating to a new event, be it a cricket match,
a football match or a motor racing event as it gives the ads currency.
It is necessary that either through the act or the regulations,
but preferably the former, a real mechanism be set up for enforcement
of the act. The following mechanism is suggested.
1. Tobacco retailers pay an annual licence fee and have to display
a current licence on the display case of their cigarettes. This
licence shall be A4 in size, to take up some of the area on the
display case that is used as a surround to the small tobacco ads
that are currently being run. The licence notice shall have to
be placed on the display case if there is one and to have a section
in large letters to inform the public as to the prohibition of
sales of cigarettes to minors and a request for them to help enforce
prohibition of sales to minors with a free telephone line to inform
the authorities of breeches of the law. This line will be staffed
and actioned and monitored for effectiveness according to a strict
and results oriented protocol, unlike the previous 'Hotline' which
merely resulted in multiple transfers around the Health Department.
2. It shall be an offence to sell cigarettes without a current
licence. This fine shall be greater for those not having a licence
than for having a expired licence, but shall be considerable and
shall increase with repeat offences. On the third offence there
shall be a mandatory gaol term.
3. The licence fees shall be put into a fund to enforce the act,
and to discourage sales to minors. This enforcement shall include
compliance surveys in which children under the age of buying cigarettes
legally are sent to buy cigarettes. There shall be one episode
of grace and after this every breech of the law may result in
4. The policing of the Act could be done by the Police Department
on a commission basis. This currently occurs with the police computer
collecting fines for the RTA. If this is so there shall be either
a commission relating to a fixed percentage of the fines levied,
or a performance agreement with the police department and supervised
by the health department to achieve a desired result in terms
of prosecution or compliance as proven by the compliance surveys
In addition to the above, it understood by NSMA that there needs
to be changes to the Business Franchises Act to allow this licensing
of tobacconists. Dr Peter Macdonald had a package of legal changes
relating to this that had been researched and the department is
encouraged to make use of this expertise, which was done by the
parliamentary draughtsmen in cooperation with both the previous
and the current health ministers.
Section 26 must be repealed as totally inconsistent with the spirit
of the overall act. There is no room for 'voluntary agreements'
with tobacco companies which have consistently denied the harm
caused by tobacco, and have always tried to stretch whatever loophole
possible to continue to promote their products.
A new section must be added which prevents music associated with
previous cigarette ads, and currently it might be possible to
have a spruiker within a retailer.
Display cases at point of sales shall not be given undue prominence
to act as an advertisement, and no new display cases that show
the front of the pack shall be displayed.
The front of any packs displayed after 30th April shall have the
warnings that were mandatory from 1st January 1995 clearly visible
on the pack. In other words, old stock without health warnings
shall not be used to form an ad, as is currently happening.
No carton shall be used in a display of cigarettes.
It might be noted that large display cases in point of sale situations
are having a regulation- sized ad in a display case where the
large are around the case accentuates the ad, and effectively
enlarges it. The regulation therefore need to be changed along
the lines of:
"The area of a tobacco ad shall be taken in a context such
that if a regulation sized ad is surrounded by a large area or
visual effects to increase the prominence of the central area
shall be considered as the total area of the framing image".
Since the new health warnings came into force on 1st January 1995,
the following aspects should be noted:
1. Tobacco companies made the agreement that tobacco manufactured
after 1st January only was affected. As at 18th April, less tan
half the stock in the shops have the new warnings. This suggests
that there was a massive stockpiling of cigarettes prior to the
warnings being introduced in order to delay their introduction.
(It might be noted that some manufacturers have done this more
than others, Phillip Morris being the worst offender, Wills the
Clearly this means that he tobacco companies really do fear advertising
restrictions and try to minimise them, despite their public pronouncements
that advertising makes no difference.
2. Since the new health warnings have come in Rothmans has put
the words '...anyhow, have a Winfield' inside their packets of
Winfield. It is our submission that this is another deliberate
attempt to undermine the health warnings. The 'government health
warning is on the outside, but the friendly little message for
those with 'inside knowledge' is to rationalise and smoke anyway.
3. Reports from Europe have shown that the pack is being used
as an advertisement in itself, with trendy new designs as fashion
statements. This has not yet come to Australia, but may do so
at any time. Of course this makes a mockery of the Industry claim
that it takes a long time to change pack designs. When it suits
them they can do this easily. It is only a problem when health
warnings are involved.
4. Drum brand cigarette rolling tobacco has a philosophical message,
again stressing a rationalisation- The quote is from Keats, who
had a short passionate life as poet before dying of TB. It is
the same message- a reason to smoke, without being just dumb.
The smoker is pursuing a short life filled with glory or pleasure.
The rationalionsation is provided by the tobacco company just
when the health warning threatens.
5. The cigarette brand 'Death' has been marketed in the UK as
involving bravado and is getting a cult following among kids.
It has a black pack with a skull and crossbones, and strong health
warnings. Quit ads are subtly satirised, so the worse the health
authorities make cigarettes sound, the more 'Death' become appealing.
This brand is not here yet, but should be stopped.
As the number of advertising and promotion options are closed,
it is not surprising that the tobacco companies are paying more
attention is paid to the pack. It is the critical link between
the image and
Conclusion- Deliberately increased
It is submitted that there is now ample proof that packages will
be used as advertising and that the Industry will always try to
avoid any regulation that prevents them from promoting their product,
despite the obviously socially detrimental results of doing so.
It is thus necessary to prevent any attempt to prevent this increasing
use of the pack as a marketing tool. Any words or image that are
intended to increase sales or undermine the health warnings have
to be prohibited. In practice, this will be hard to enforce, and
liable to challenge in court or complex interpretation, as the
present pack designs are trade marks and designed to be appealing
and the High Court has ruled that there is a constitutional right
to freedom of speech. This might thus mean that if any writing
on the pack is allowed, the nature of that writing would be free.
Need for Generic Packaging
The preferred option thus is to go to generic packaging, which
makes the policy decision to take away the glamour of the pack,
as a public health necessity. The concept comes from Canada. In
practice this would involve choosing a uniform colour for all
cigarette packs and insisting that brand names be in a certain
typeface and size, to limit the ability of the pack to conjure
the glamorous images from the advertising, sponsorship and other
marketing devices. It is felt that if this is not done, it will
only be a matter of time before the pack receives even more attention
as a marketing tool than it is receiving now. The pack is the
vital link that must be broken between the images and the smoking.
It can be argued that this cannot be introduced without the cooperation
between the States. If so, the legislation should be passed in
NSW mandating generic packs as soon as a majority of states have
them. The government should then press through the Australian
Health Ministers' Council to get uniform regulations for generic
packs in all states.
Need for a Health Promotion Foundation
Ultimately it will be necessary to sue the tobacco companies for
the harm that they have done to the public health, as has happened
in a number of US states. In the meantime, there is little doubt
that Health Promotion Foundations funded by tobacco tax can have
a major effect on health, particularly on tobacco. The Californian
experience has shown that Quit campaigns, if adequately funded
by a health promotion foundation can make a huge difference to
smoking rates compared to states where there was no foundation.
It is time to give NSW the benefits of a body concerned with sponsoring
the arts and participatory sport, based on need as well as merely
its value as entertainment.
Limitations of This Act and Regulations
The major fact that must be recognised is that the Tobacco Advertising
Prohibition Act is only part of a comprehensive strategy against
tobacco, which must be pursued in a co-ordinated fashion with
this legislation being deliberately created to fit in with other
initiatives. It must be noted that significant falls in tobacco
consumption have only happened government action. Initiatives
1. Increase in taxation to the level of the highest in the country,
2. Restriction of sales to minors by prosecutions and the onus
of proof on shop keepers that the purchaser was of age, not that
they thought they were as a defence.
3. Licensing of retailers
4. Enactment of Smoke-Free indoor air acts, with complete bans
on indoor smoking.