Investigation Report No. BI-199

Investigation report no. BI-199

Summary /
File no. / BI-199 /
Licensee / Triple M Brisbane Pty Ltd /
Station / Triple M /
Type of service / Commercial radio /
Matter / Advertisement for Victoria Bitter /
Date of broadcast / 28 April 2016 /
Relevant legislation / Clause 8(1)(a) [tobacco advertising] of Schedule 2 to the Broadcasting Services Act 1992 /
Date finalised / 30 June 2016 /
Decision / No breach /

Background

In June 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) into an advertisement broadcast on Triple M by Triple M Brisbane Pty Ltd (the licensee) on 28 April 2016 at 6.18 pm.

The ACMA received a complaint that:

the advertisement featured music associated with Marlboro cigarette advertisements

the words ‘you know what to do’ were a reference to the Marlboro cigarette slogan, ‘come to where the flavour is, come to Marlboro country’.

The complaint raises issues about compliance with the Tobacco Advertising Prohibition Act 1992 (TAP Act).

The advertisement has been assessed in accordance with clause 8(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (the BSA). Clause 8(1)(a) provides that each commercial radio broadcasting licence is subject to the condition that the licensee will not, in contravention of the TAP Act, broadcast a tobacco advertisement within the meaning of the TAP Act.

The advertisement

The advertisement is approximately 30 seconds long. For the first 25 seconds, only music is heard. The music is an arrangement of the theme composed by Elmer Bernstein for the 1960 film, The Magnificent Seven.

At about 25 seconds into the advertisement, a man’s voice says ‘you know what to do’, as the music continues. A sound of a ring-pull can being opened can then be heard.

There is no statement in the advertisement clearly identifying what product is being advertised.

Assessment and submissions

The investigation is based on a recording of the broadcast provided to the ACMA by the licensee, and takes into account the complaint and information provided by the licensee. Other sources are identified below.

Relevant legislation

Clause 8(1)(a) of Schedule 2 to the BSA provides:

8. Conditions of commercial radio broadcasting licences

(1) Each commercial radio 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 section 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

[…]

(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;

[...]

Other relevant definitions (from section 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

Finding

The licensee did not broadcast a tobacco advertisement in contravention of the TAP Act.

The licensee did not breach clause 8(1)(a) of Schedule 2 to the BSA.

Reasons

In assessing compliance with the licence condition in clause 8(1)(a) of Schedule 2 to the BSA, the ACMA considers:

Is the advertisement a ‘tobacco advertisement’ within the meaning of the TAP Act?

If so, do any of the exceptions in the TAP Act apply so that the broadcast of the tobacco advertisement is permitted under the TAP Act?

Did the broadcaster intend to broadcast material which falls within the statutory definition of ‘tobacco advertisement’ and also intend to promote, or give publicity to, smoking, tobacco products or the name of a tobacco manufacturer?

The complainant submitted:

I heard the Marlboro jingle being played during a block of advertisements on the above mentioned radio station. Right near the end of the jingle a voice can be heard suggestively saying "You know what to do!" it is my belief it is referring to the known but unspoken lyrics which state, "come to where the flavour is, come to Marlboro country."

I believe this is in flagrant violation of the [law] and complete disregard for those who are attempting to give up or who may have recently given up smoking.

The licensee has advised the ACMA:

We have investigated the complaint and have found that the relevant music was in fact the jingle associated with Victoria Bitter beer and was an advertisement from Foster’s. After the words, “You know what to do” there is the sound in the background of beer being poured into a glass.

I […] attach a clip from YouTube of a Victoria Bitter TV advertisement with the same jingle in the background ( https://www.youtube.com/watch?v=KolkCNvDnWc).

In the circumstances, we are satisfied that the broadcast on Triple M Brisbane does not raise any issues concerning compliance with clause 8(1)(a) [tobacco advertising] of Schedule 2 to the Broadcasting Services Act 1992 or any other provisions of the Act or the Radio Codes of Practice.

Is the advertisement a ‘tobacco advertisement’ within the meaning of the TAP Act?

Paragraphs 9(1)(a), (b) and (e) of the TAP Act define a tobacco advertisement as any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of two or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

smoking

the purchase or use of a tobacco product

the name of a manufacturer of a tobacco product.

As this is a radio advertisement, only audible messages are relevant.

Different arrangements of the theme music from The Magnificent Seven have featured in advertisements for both Victoria Bitter, a beer produced by Fosters Group, and the Marlboro brand of cigarettes.

As a ban on tobacco advertising on television and radio came into effect in Australia in September 1976, there have been no Marlboro cigarette advertisements broadcast on television or radio since that time.

The music has featured in Victoria Bitter television advertisements from the 1960s to present day. These advertisements often feature the tag line ‘a hard earned thirst needs a big cold beer and the best cold beer is Vic, Vic Bitter’.

The ACMA considers that the music played in the advertisement is strongly associated with Victoria Bitter beer, given its use in current advertisements.

Further, the voice-over in the Victoria Bitter television advertisements has a distinctive vocal tone, which is similar to the tone of the speaker in the advertisement.

The ACMA is of the view that, even if the music in the advertisement reminds some listeners of the historical Marlboro cigarette advertisements, the music, on its own, does not amount to an audible message that promotes or otherwise gives publicity to any of the matters set out in section 9(1) of the TAP Act.

There are no audible messages in the advertisement or surrounding material associating the music with smoking, tobacco products, or tobacco manufacturers. The music, by itself, did not promote or give publicity to these matters.

The advertisement contains a sound effect, which, in the ACMA’s view, resembles the sound of a ring-pull can being opened. This strengthens the impression that the product being advertised is a beverage. The sound does not resemble any sound associated with smoking.

There is nothing in the advertisement that gives publicity to, or otherwise promotes smoking, the purchase or use of a tobacco product, or the name of a manufacturer of a tobacco product.

Accordingly, the ACMA finds that the advertisement does not fall within the definition of a tobacco advertisement in section 9 of the TAP Act.

It is therefore not necessary to consider whether any of the exceptions in the TAP Act apply.

The ACMA considers that even if the advertisement did fall within the definition of a tobacco advertisement in section 9 of the TAP Act, the licensee did not have the requisite intention to promote, or give publicity to, smoking, tobacco products or the name of a tobacco manufacturer.

In Channel Seven Adelaide Pty Ltd v ACMA [2014] FCAFC 32 (at paragraphs 13-14; 18), the Full Court of the Federal Court found that, for a breach of section 13 of the TAP Act to be proven, the person broadcasting the advertisement must be proved not only to intend to broadcast material which falls within the statutory definition of ‘tobacco advertisement’, but also to intend to promote, or give publicity to, smoking or tobacco products.

The licensee advised the ACMA that it intended to advertise Victoria Bitter for Foster’s Group. Accordingly, the ACMA is satisfied that the licensee did not intend to promote, or give publicity to, smoking or tobacco products.

Accordingly, the ACMA finds that the licensee did not breach clause 8(1)(a) of Schedule 2 to the BSA.

ACMA Investigation report—Victoria Bitter advertisement broadcast on Triple M Brisbane on 28 April 2016 5 of 5