Investigation Report No. 3090

Investigation Report No. 3090

File No. / ACMA2013/1358
Licensee / TCN Channel Nine Pty Ltd
Station / TCN Sydney
Type of Service / Commercial Television
Name of Program / Advertisement – Clever Smoke
Date/s of Broadcast / 16 August 2013
Relevant Legislation/Code / Clause 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (Cth)
Date finalised / 11 November 2013
Decision / No breach of clause 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (Cth)

The complaint

On 16 August 2013, the Australian Communications and Media Authority (the ACMA) received a complaint in relation to an advertisement for a product called Clever Smoke, an electronic cigarette replacement product including a battery and evaporator which produces a vapour that looks like smoke. The advertisement was broadcast on TCN Sydney by TCN Channel Nine Pty (the licensee) on the same date.

The complainant submitted that the broadcast ‘appeared to be... an advertisement for tobacco.’

Paragraph 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (Cth) (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 (Cth) (the TAP Act), broadcast a tobacco advertisement within the meaning of that Act.

The advertisement

The advertisement was broadcast in the format of an ‘infomercial’ on the program Mornings, a light entertainment program featuring interviews, news and celebrity gossip broadcast from 9:00am to 11:00am on weekdays. It featured a presenter and a Clever Smoke representative, who discussed the product and outlined a special offer for it and its various accessories that could be accessed by customers by calling a specified telephone number.

The representative made the following statements during the advertisement:

• Clever Smoke ‘looks, feels and even tastes like a normal cigarette, but [has] none of the health risks’;
• Clever Smoke is ‘nicotine-free’;
• ‘Independent testing proves Clever Smoke contains no tar, no nicotine, no heavy metals, in fact not one of the thousands of toxic substances found in tobacco’; and
• ‘Your friends, family and co-workers don’t have to worry about their health when you light up, because there’s no risk of passive smoking’; and
• Switching to the product would save the ‘average smoker’ $7,000 per year.

The advertisement included the following visual material:

• The presenter and the representative discussing the product in the licensee’s studio;
• Images of the product and its accessories;
• Images of a person smoking tobacco cigarettes and coughing
• Images of a person who was short of breath;
• Repeated images of a person seemingly repulsed by a smoker’s unpleasant odours;
• Footage of people storing/charging their Clever Smoke e-cigarettes;
• A brief image of a lit tobacco cigarette in a smoker’s hand;
• A brief image of the screen split into two halves; one half with an ashtray full of smouldering standard cigarette butts and one half with an ashtray containing just one Clever Smoke e-cigarette; and
• Close up image of a cigarette paper being rolled with tobacco.

The duration of the advertisement was four minutes, a transcript of which is at Attachment A.

Assessment

This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.

‘Ordinary, reasonable’ viewer test

In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ viewer.

Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[1]

In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has ascertained the meaning conveyed, it then determines whether the Code has been breached.

Issue: Did the licensee broadcast a tobacco advertisement?

Relevant legislation

Clause 7(1)(a) of the BSA reads as follows:

7. Conditions of commercial television broadcasting licences

(1) Each commercial television broadcasting licence is subject to the following conditions:

(a) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act 1992 , broadcast a tobacco advertisement within the meaning of that Act.

A ‘tobacco advertisement’ is defined in s.9 of the TAP Act as follows:

9. Meaning of tobacco advertisement

Basic meaning

(1) 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 a 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 a 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 a part of the name of a person:

(i) who is a manufacturer of tobacco products; and

(ii) whose name appears on, or on the packaging of, some or all of those products; or

(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).

Other relevant definitions (from s.8 of the TAP Act) include the following:

8. Defined terms

"smoking" means smoking tobacco products.

"tobacco product" means:

(a) tobacco (in any form); or

(b) any product (for example a cigar or cigarette):

(i) that contains tobacco as its main or a substantial ingredient; and

(ii) that is designed or intended for human consumption or use; and

(iii) that is not included in the Australian Register of Therapeutic Goods maintained under the Therapeutic Goods Act 1989 ; or

(c) a cigarette paper, cigarette roller or pipe.

Relevantly, s.14 of the TAP Act should also be noted:

14. Accidental or incidental broadcast permitted

A person may broadcast a tobacco advertisement if:

(a) the person broadcasts the advertisement as an accidental or incidental accompaniment to the broadcasting of other matter; and

(b) the person does not receive any direct or indirect benefit (whether financial or not) for broadcasting the advertisement (in addition to any direct or indirect benefit that the person receives for broadcasting the other matter).

Complainant’s submissions

The complainant submitted the following to the ACMA on 16 August 2013:

I am writing to make a direct complaint to ACMA about what appeared to be, in my opinion, an advertisement for tobacco through the advertisement of a tobacco smoker’s accessory, a tobacco filter.

[...]

The amount of time spent in the advertisement talking about smoking, even if the advertisement included references to the well-publicised risks to health of smoking tobacco, and included a neat comparison of the relative health of 60year-old smokers and non-smokers, and was for a smoking accessory, seemed to me to be an advertisement for tobacco because it was advertising a product intended to be used with tobacco, and by tobacco smokers, and made repeated references to smoking.

I wondered if advertising a tobacco accessory is analogous to tobacco packaging.

Licensee’s submissions

Extracts from the licensee’s submissions can be found at Attachment B.

Finding

The licensee did not breach its licence condition at Clause 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (Cth).

Reasons

The ACMA considers that Clever Smoke is not a tobacco product for the purposes of s.8 of the TAP Act. The advertisement makes it clear that the e-cigarette does not contain tobacco and states that it is ‘nicotine-free. The ACMA accepts the licensee’s submission that Clever Smoke ‘does not contain nicotine or tobacco’.

Given that Clever Smoke does not contain tobacco, the ACMA considers that it does not fall within the definition of a ‘tobacco product’ at s.8 of the TAP Act (extracted above), in that it does not ‘[contain] tobacco as its main or a substantial ingredient’.

However, section 9 of the TAP Act defines a tobacco advertisement as ‘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’, among other things, smoking and the use of a tobacco product.

The ACMA notes that in addition to the e-cigarette, the advertisement included images of tobacco, tobacco products and depictions of people smoking tobacco cigarettes. These limited portions of the advertisement could fall within the definition of a ‘tobacco advertisement’ at section 9 of the TAP Act as they gave publicity to, or increased public notice of, smoking and tobacco products.

Section 14 - incidental or accidental accompaniment

The ACMA considers, that any material that could be considered as a tobacco advertisement in the broadcast material was permitted under s.14 of the TAP Act, as it was an incidental accompaniment to the broadcast of other matter, namely the advertisement for Clever Smoke, a non-tobacco product.

‘Incidental’ has been interpreted in the context of s.14(a) of the TAP Act as ‘happening... in fortuitous or subordinate conjunction’ with other matter.[2]

The ACMA considers that the ‘other matter’ in this instance was the advertisement for Clever Smoke. The thrust of the advertisement was the promotion of that product.

Any images that had the effect of giving publicity to smoking and tobacco products did not dominate the advertisement at the expense of the central message conveyed by it. They were fleeting and not a substantial component of the advertisement, and therefore happened in subordinate conjunction with the other matter.

The ACMA has not been provided with any evidence indicating that the licensee received any direct or indirect benefit for the broadcast of the advertisement, in addition to that received for Clever Smoke – see s.14(b).

Accordingly the licensee did not contravene the TAP Act, and therefore did not breach its licence condition at Clause 7(1)(a) of Schedule 2 to the BSA.

Attachment A

Transcript of the Advertisement

Presenter – Are you a smoker, or is someone you love a smoker? Well, [D] is here to show you a fantastic device that could save you $7,000. Good morning, [D].

Clever Smoke representative – Good morning, [Y]. 7,000? It’s a lot, isn’t it? And this morning, I’ll show you how you can save all this in just a year. Smoking is the leading cause of preventable death in the western world, killing nearly 5 million people every year. In this country, life expectancy is over 79 but the average smoker dies at 65, nearly 15 years sooner.

Presenter – Wow, 15 years! I had no idea it was that much, it’s awful, isn’t it.

Clever Smoke representative – It is, but I’ve got great news. Because now there’s a solution; a nicotine-free alternative. This is Clever Smoke. It’s an electronic cigarette, that looks, feels and even tastes like a normal cigarette, but it’s got none of the health risks.

Presenter – Wow, none of the health risks?

Clever Smoke representative – That’s right, none. Clever Smoke is designed and engineered in Germany to the highest quality standards. And independent testing proves Clever Smoke contains no tar, no nicotine, no heavy metals, in fact not one of the thousands of toxic substances found in tobacco.

Presenter – This sounds a lot safer than regular smoking.

Clever Smoke representative – And it’s not just healthier for you, because there’s no lighters or flames, there’s no risk of scorch marks, no smouldering cigarette butts, and best of all, your friends, family and co-workers don’t have to worry about their health when you light up, because there’s no risk of passive smoking.

Presenter – Great.

Clever Smoke representative – Remember: smokers die nearly 15 years before non-smokers. Every single tobacco cigarette can take 29 minutes off your life, and if you’re 60 and a smoker, you’re 83% more likely to die this year than a 60-year-old non-smoker. So Clever Smoke can help save your own life.

Presenter – And apparently save you a small fortune as well?

Clever Smoke representative – It certainly can. If you’re an average smoker this year, you will spend well over $7,000 on cigarettes. And don’t forget the government has decided the price of cigarettes is guaranteed to keep going up every year.

Presenter – So whatever you’re spending now on cigarettes, it’s just going to get worse, isn’t it?

Clever Smoke representative – Unless you make the switch right now to Clever Smoke. And another great advantage of Clever Smoke is you can use it wherever you like.

Presenter – So no more being kicked out in the cold because of your habit; this sounds like a much better option than smoking cigarettes. So tell us, what offer have you got for us today?

Clever Smoke representative – It’s a great offer. How would you like an extra $7,000 a year, cold hard cash in your pocket?

Presenter – Yes please.

Clever Smoke representative – Well, you can start saving it right now. Because today we’ve worked out a very special offer for the viewers. Call right now on 1800, 997 997 and you can try Clever Smoke on a 30 day risk-free trial, for a trial price of only $9.90. You get the full Clever Smoke kit, which includes a long-lasting rechargeable lithium polymer battery, a wall charger and five tobacco flavour cartridges that last you the equivalent of 60 cigarettes, all stowed in this slim, stylish case. But wait: call right now and we’ll give you five extra cartridges of authentic menthol flavour, five of sweet vanilla and five freshly-roasted coffee flavour, and five more refreshing apple. That’s a total of 25 cartridges, the equivalent of over 300 cigarettes, absolutely free.

Presenter – Wow, and that number is 1800 997 997.

Clever Smoke representative – But wait, there’s more: you’ll never need to go without your Clever Smoke, because there’s a handy USB adaptor, and we’ll give you this car charger absolutely free. That’s right, in this special, TV-only offer, you get the entire Clever Smoke kit, with a handy USB adaptor. Plus, we’ll give you 25 extra flavour cartridges and the car charger absolutely free. And you get to try everything you see here in a 30 day, risk-free trial, for a trial price of only $9.90. But you must call right now, on 1800 997 977. And if you’re not happy for any reason, simply return everything within the trial period for a full refund of your trial price, no questions asked. Call 1800 997 997. This offer is not available in stores, so call now.

Presenter – That’s right. Call on 1800 997 997.

Attachment B

Licensee’s submissions

The licensee submitted the following to the ACMA on 9 September 2013:

Nine believes the product featured in this advertorial complied with the [BSA] as the product complied with all relevant laws and regulations as warranted by the client to Nine and contained no tobacco or nicotine.

[...]

Nine’s compliance with the TAP Act

The product was supplied to Nine from client, [company name], who warranted to nine that this product complied with all laws, regulations and codes in Australia and Nine reasonably relied in good faith on the warranties provided by client as part of a contractual agreement. The client warranted to Nine that the product does not contain nicotine or tobacco and therefore the product does not fall within the definition of ‘tobacco product’ and therefore the advertisement is [not] a ‘tobacco advertisement’ under the TAP Act.
Attached... is a statement from the Brand Developers confirming this product does not contain tobacco which Nine reasonably relied on when broadcasting this product.

The warranties contained in the advertorial agreement state:

‘Client warrants, represents and undertakes to Nine that the Advertorials and Material do and will comply with all laws, statutes, regulations, codes of practice and any standards determined by any relevant regulatory agency or industry self-regulating body applicable to free-to-air commercial broadcast and/or infomercials or advertorials (sic).’

The definition of ‘tobacco product’ under clause 8(b)(i) of the TAP Act states: ‘any product that contains tobacco as its main or substantial ingredient’ – which as discussed above the client has warranted to Nine the product does not contain tobacco – and therefore as the first element of Clause 8(b)(i) is not satisfied. Thus, the other elements under Clause 8(b)(ii-iii) are not applicable as the definition of ‘tobacco product’ under Clause 8(b)(i-iii) are collective elements that all must be met to meet the definition.

Also, the product is not currently included in the Register of Therapeutic Goods pursuant to the Therapeutic Goods Act 1989 as warranted by the client to Nine that the product does not fall within this Act. Therefore, the product does not satisfy the elements for the definition for the definition of tobacco product under Clause 8(b).