Investigation Report No. 2472

File no. / ACMA2010/1633
Licensee / Channel Seven Adelaide Pty Ltd
Station / SAS Adelaide
Type of service / Commercial television broadcasting
Name of program / Channel Seven News
Date of broadcast / 18 July 2010
Relevant legislation / Paragraph 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992
Tobacco Advertising Prohibition Act 1992
Date Finalised / 30 May 2014
Decision / Not satisfied there is a breach of paragraph 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (Cth).

Background

The Australian Communications and Media Authority (ACMA) received a complaint that Channel Seven Adelaide Pty Ltd, the licensee of SAS Adelaide, broadcast a tobacco advertisement during the Channel Seven News program on 18 July 2010.

The complaint relates to a news segment entitled ‘Cheap Cigarette Imports’, which dealt with the importation from Germany and sale, by Coles supermarkets, of budget brands of cigarettes including those known as ‘Bayside’, ‘Harvest’, ‘Tradition’ and ‘Deal’.

Paragraph 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (the BSA) states that it is a condition of a commercial television broadcasting licence that the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992 (the TAP Act), broadcast a tobacco advertisement within the meaning of that Act.

A breach finding was initially made against the licensee on 6 May 2011. Following remittal of the investigation by the Federal Court in November 2011, the licensee was given an opportunity to make fresh submissions on the matter. On 23 March 2012, a fresh breach decision was made against the licensee. The licensee subsequently sought judicial review of that decision. While a single judge of the Federal Court upheld the ACMA’s findings on 14 August 2013, a Full Court of the Federal Court overturned that judgment on 21March 2014, and ordered that the ACMA’s decision made on 23 March 2012 be set aside. The ACMA is, therefore, now making a fresh decision on the matter in light of the judgment of the Full Court of the Federal Court in Channel Seven Adelaide Pty Ltd v ACMA [2014] FCAFC 32.

The program

Channel Seven News is a half-hour news program broadcast at 6.00 pm on weeknights. The ‘Cheap Cigarette Imports’ segment (the segment) is 1 minute 20 seconds in duration. The segment reported on Coles importing cigarettes and selling them at lower prices than locally manufactured cigarettes. The segment included interviews with JT, the owner of a ‘Liberty’ petrol station, SS, a Smokefree Australia Coalition spokesman and two unidentified male smokers who participated in ‘vox-pop’ spots.

A transcript of the segment, including audio and visual elements, is included at Attachment A.

Assessment

The assessment is based on:

  • the complaint
  • submissions from the licensee, and
  • a copy of the segment provided to the ACMA by the licensee.

This matter has been considered under paragraph 7(1)(a) of Schedule 2 to the BSA, and sections 8, 9(1), 9(1A), 9(7), 13 and 14 of the TAP Act. These legislative provisions are included at Attachment B.

The complaint

The complaint of 27 July 2010 stated:

I am concerned over a news report that appeared on the Channel Seven TV News program on the evening of July 18, 2010. The story reported on Coles selling imported cigarettes at cheap prices. My objection to this story is that it contained pictures of the cigarette packets clearly showing the names of the different brands.

In my opinion this constitutes indirect advertising on behalf of both Coles and the cigarette companies involved.

Licensee’s submission

By a letter to the ACMA dated 5 December 2011 (reproduced at Attachment C), the licensee referred to the grounds of review raised in its initial application to the Federal Court, and submitted:

  1. The segment did not constitute a tobacco advertisement within the terms of subsection 9(1) of the TAP Act, or alternatively it fell within the exceptions provided for in subsection 9(1A) of the TAP Act (exception for political discourse), and/or subsection 9(7) of the TAP Act (exception for anti-smoking advertisements).
  2. Alternatively, any tobacco advertisement in the segment was permitted by section 14 of the TAP Act as an incidental accompaniment to other matter.
  3. Seven did not contravene the TAP Act because it had no intention to broadcast a tobacco advertisement in the segment.

Findings

The ACMA finds that:

  • the segment broadcast by the licensee on 18 July 2010 included tobacco advertisements within the meaning of subsection 9(1) of the TAP Act.
  • the segment did not fall within the exception for political discourse in subsection 9(1A) of the TAP Act.
  • it was not clear from the advertisement that its sole or principal purpose was to discourage smoking or the use of tobacco products, and hence subsection 9(7) of the TAP Act did not apply.
  • the licensee did not broadcast the advertisement as an accidental or incidental accompaniment to the broadcasting of other matter, and hence section 14 of the TAP Act does not apply.
  • it is not satisfied that the licensee intended to broadcast a tobacco advertisement, according to the test of intention for a contravention of section 13 of the TAP Act stated by Tracey and Robertson JJ in Channel Seven Adelaide Pty Ltd v ACMA [2014] FCAFC 32, at paragraphs 13-14.

Accordingly, the ACMA is not satisfied that the licensee broadcast, in contravention of the TAP Act, a tobacco advertisement within the meaning of the TAP Act, and therefore is not satisfied that the licensee breached the licence condition at paragraph 7(1)(a) of Schedule 2 to the BSA.

Reasons

Section 13

Tobacco advertisements not to be broadcast

Section 13 of the TAP Act provides that a person must not broadcast a tobacco advertisement in Australia on or after 1 July 1993.

There is no question that the segment was broadcast on 18 July 2010. The issue is whether the segment included a tobacco advertisement, broadcast in contravention of the TAP Act.

Whether the segmentincluded tobacco advertisements

Tobacco advertisement

The licensee submitted that the segment does not satisfy the definition of ‘tobacco advertisement’ in subsection 9(1) of the TAP Act, and further that it is not a tobacco advertisement for the purposes of that Act, by the operation of subsection 9(1A) and/or subsection 9(7).

Subsection 9(1) of the TAP Act provides:

Subject to this section, for the purposes of this Act, a tobacco advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

(a)smoking; or

(b)the purchase or use of a tobacco product or a range of tobacco products; or

(c)the whole or part of a trade mark that is registered under the Trade Marks Act 1955 in respect of goods that are or include tobacco products; or

(d)the whole or part of a design that is registered under the Designs Act 2003 in relation to products that are or include tobacco products; or

(e)the whole or part of the name of a person:

  1. who is a manufacturer of tobacco products; and
  2. whose name appears on, or on the packaging of, some or all of those products;

(f)any other words (for example the whole or a part of a brand name) or designs, or combination of words and designs, that are closely associated with a tobacco product or a range of tobacco products (whether also closely associated with other kinds of products).

The material set out at Attachment A was broadcast in the segment. This included:

  • visual images of people smoking and a hand removing a cigarette from a packet in order to smoke
  • audible messages about, and visual images of, tobacco products available for purchase and being sold at Coles including the caption ‘cheap imports’, re-stocking of cigarette packs on a stand for sale at a petrol station, and people using tobacco products and being interviewed about their use or purchase of tobacco products
  • visual images of identified brands available in Australia and their prices, including the brand Benson and Hedges
  • audible messages about, and visual images of, German brands of cigarettes being imported by Coles from Germany for sale in Australia, including images of and verbal references to names of manufacturers of tobacco products appearing on the packaging of tobacco products.

The ACMA considers that this material included writing, stills, moving pictures, signs, symbols, other visual images, audible messages, or combinations of those things, falling within subsection 9(1) of the TAP Act.

Give publicity to, or otherwise promote?

The next question for the ACMA is whether the material gave publicity to, or otherwise promoted, any of the things listed in paragraphs (a) – (f) of subsection 9(1) of the TAP Act.

The Macquarie Dictionary (fifth edition) provides the following definitions of ‘publicity’ and ‘promote’:

Publicity

1.the state of being public, or open to general observation or knowledge.
2.public notice as the result of advertising or other special measures.
3.the state of being brought to public notice by mention in the mass media, or by any other means serving to effect the purpose.
4.the measures, process, or business of securing public notice.
5.advertisement matter, as leaflets, films, etc., intended to attract public notice.

Promote

1.to advance in rank, dignity, position, etc.
2.to further the growth, development, progress, etc., of; encourage.
3.to help to found; originate; organise; launch (a financial undertaking, publicity campaign, etc.).

The second and third meanings of “publicity”, and the second meaning of “promote”, are most relevant for present purposes.

The ACMA considers that the visual images of people smoking cigarettes, of cigarettes being sold at Coles and at a petrol station, of local brands and imported brands, and names of manufacturers appearing on cigarette packages, were likely to increase consumer awareness of smoking, the availability for purchase of a range of tobacco products, a trade mark (or design) registered in Australia, and the names of manufacturers of tobacco products being imported from Germany. The visual images therefore gave publicity to these things.

The ACMA considers that the audible messages identifying brands of cigarettes and their availability for discount prices at Coles, the difficulties of competition at the petrol station, references to the price of such cigarettes, and the two interviews with smokers, were also likely to increase consumer awareness of smoking, the availability for purchase of a range of tobacco products, a trade mark (or design) registered in Australia, and the names of manufacturers of tobacco products being imported from Germany. The audible messages therefore gave publicity to these things.

The ACMA also considers that the combination in the segment of the above visual images and audible messages would have brought the availability at Coles of cheap tobacco products to public notice, thereby giving publicity to the range of tobacco products referred to in the segment. The material dealing with the impact on the petrol station owner’s cigarette sales further reinforced and highlighted the segment’s messages about, and gave publicity to,the availability of cheap cigarettes at Coles.

As well as giving publicity to the products, the ACMA considers that smoking and the availability of cheap tobacco brands were advanced or encouraged through the above visual images and audible messages, or their combination, in the segment. In this sense the material also promoted smoking, the purchase or use of tobacco products, and the whole or parts of the name of a person who is a manufacturer of tobacco products.

In its submission, the licensee argued that something more than the mere appearance in visual form of, or a verbal reference to, a cigarette pack or brand name is required in order for that material to give publicity to or otherwise promote those items, and that such publicity must be positive. It argued that the segment did not contain any element of promotion or encouragement to smoking.

It also submitted that the segment runs for 80 seconds and that any references to cigarette names or images are very brief. It objected to the ACMA’s use of the detailed transcript at Attachment A on the basis that it places a disproportionate and unfair emphasis on the visual images in the news segment, including pack markings, logos and fonts which would not have been absorbed by the ordinary reasonable viewer of the evening news on a single viewing.

The ACMA is not persuaded by these submissions. The ACMA considers that the visual images and audible messages are separate and relevant matters for consideration under subsection 9(1) of the TAP Act which provides:

…a tobacco advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives…

Subsection 9(1) refers to any visual image or audible message (emphasis added). Consistent with the object of the TAP Act at subsection 3 (1), ‘to limit the exposure of the public to messages and images that may persuade them to (a) start smoking, or to continue smoking; or (b) to use, or to continue using, tobacco products,’ the ACMA considers that subsection 9(1) covers one or more visual images or audible messages, and does not set threshold measures or relative durations for such material. There is no explicit requirement in the TAP Act that the meaning conveyed by broadcast material be assessed by reference to the understanding of the ordinary, reasonable viewer, so the ‘ordinary reasonable viewer’ test used under broadcasting codes of practice to assess the meaning conveyed by broadcast material may not be applicable in this case.

In any event, the ACMA considers that the visual images and audible messages were not brief, fleeting or insignificant. Together they comprised a significant proportion of the segment. The images and messages were also quite clear and explicit and were not background material. The ACMA considers they were likely to promote awareness in ordinary reasonable viewers of the availability of less expensive brands of cigarettes at Coles. The explicit price comparisons with other brands had the tendency, and potential, to persuade some viewers to continue smoking, or to take up smoking, and the interviews with smokers gave positive messages about their enjoyment of smoking.

The licensee also submitted that the message of the segment was clear: that cheap imports are flooding the market and threaten to undermine recent progress in reducing tobacco sales. It also referred to other media reports on the issue, details of which were attached to its submission. The licensee said that to report this message effectively within the news report, it made references to cigarette brands and smoking, but these were not sufficient to provide the requisite promotion or encouragement to qualify as a ‘tobacco advertisement’ under the TAP Act.

The ACMA accepts that this was one message conveyed in the segment but considers that there were also audible messages and visual images in the segment which gave publicity to the importation of cheap cigarettes by Coles and promotional elements including the availability of cigarettes at Coles for lower prices than at other outlets, and the enjoyment of smoking by at least two smokers.

The ACMA must, of course, assess the material broadcast by the licensee, rather than the similar material that appeared in other media. However, it is noteworthy that, apart from the article in the Sunday Telegraph, the material in other media referred to by the licensee did not generally recite brand names. Although the ABC article included a picture of a man smoking, generally this material did not include such images and none referred to smokers discussing their enjoyment of smoking. Nor did it include images of people buying cigarettes, references to local trade marks associated with tobacco products, or details of comparative prices. Other media tended to include anti-smoking statements such as ‘smoking is still the major cause of cancer’ and ‘cigarettes kill one in two regular users’.

The ACMA considers that the segment broadcast by the licensee brought to public notice the availability of cheap brands of cigarettes at Coles, and this would have advanced or encouraged the purchase of tobacco products. The ACMA finds that the visual images and verbal messages from the segment that are referred to above gave publicity to, or otherwise promoted, smoking and the purchase or use of tobacco products, within the meaning of subsection 9(1) of the TAP Act.

Subsection 9 (1A) - Political discourse

The licensee submitted that the exception in subsection 9(1A) applied to the segment as it did not, and was not intended to, promote any particular tobacco product or particular range of tobacco products, or smoking, and the segment related solely to government or political matters being:

(i)the Federal government’s cigarette tax rise which prompted a rise in the availability of cheap imported products;

(ii)the recent decision by Coles to sell cheap imports which had the effect of undermining the effectiveness of the tax rise which applies only to Australian produced products;

(iii)the likely effects of cheap imports on youth smoking levels;

(iv)the likely effects of cheap imports on price competition.

The licensee also noted that these issues were the subject of comment by both the then Health Minister, Nicola Roxon, and members of the Federal Greens party, around the time of the news segment.