General rules

General rules

 

Uploaded November 2018.

See individual countries/ sectors for updates.

Australia

A. Overview

SECTION A OVERVIEW

 

This database uploaded late December 2022

 

ISSUES/ NEWS

 

ACCC social media sweep targets influencers. 27 January 2023

Urgent Privacy Reforms Introduced In The Parliament
IAB Australia October 27, 2022 (see channel rules header below)

Environmental Claims Code review. November 2022

Discussion paper from the Australian Association of National Advertisers (AANA)

 

IN SUM

 

The advertising regulatory framework in Australia will have a familiar look to it for those whose experience is largely European, in as much as there's a strong self-regulatory authority Ad Standards in place, albeit with a slightly different structure to most in Europe as the founding body is the advertiser's trade association and consumer and competitor complaints are handled separately. From the Adstandards website: 'Ad Standards functions as secretariat for the Ad Standards Community Panel and the Ad Standards Industry Jury, the two independent bodies established to determine consumer and competitor complaints against the advertising self-regulatory codes.' Scope: Advertising is defined as.......any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct. It does not include Excluded Labels or packaging for products, corporate reports including corporate public affairs messages  in press releases and other media statements, annual reports, statements on matters of public policySee the self-regulation header immediately below for more. The legislative backdrop is also reasonably familiar from consumer protection provisions under a federal act - the Competition and Consumer Act 2010 - expressed under Schedule 2 as the Australian Consumer Law or ACL and enforced by the Australian Competition and Consumer Commission. The regulatory 'wrinkles', however, are not insignificant and it's as well to look out e.g. for a variety of sources for some sector advertising codes and state laws that may differ somewhat in their approaches to product categories such as alcohol.

 

SELF-REGULATION

 

AANA (Australian Association of National Advertisers) Code of Ethics February 2021

The code of Ethics is to be read with the Practice Note,  also February 2021, provided as a guide to interpretation

 

'The Code of Ethics is the overarching code setting out standards that apply to Advertising or Marketing Communication across any medium. Depending on the nature of the product or service, these other AANA codes may also apply:'
 

Food & Beverages Advertising Code November 2021; Practice Note here

See also Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018
Environmental Claims Code May 2018; 
Practice Note here
Wagering Advertising Code July 2016; Practice Note here

See also Keeping wagering ads in check September 2022

Children’s Advertising Code March 2021

Children's Advertising Code Practice Note March 2021

See also AANA has launched a review of the Children’s Advertising Code June 2022

 

FCAI Motor Vehicle Code and Practice Note Undated; reviewed every 5 years

From the Federal Chamber of Automotive Industries

 

Other related codes

 

The ABAC Responsible Alcohol Marketing Code 

Signatories here 
Therapeutic Goods Advertising Code
Marketing in Australia of Infant Formula: Manufacturers and Importers Agreement
ASTRA Codes of Practice (including Television and Radio)
Commercial Radio Code of Practice
Commercial TV Code of Practice

 

Influencer marketing 

 

ACCC social media sweep targets influencers. 27 January 2023

 

This is a 'busy' issue in Australia as with most markets. The key self-regulatory rule, established relatively recently, is from the AANA Code of Ethics 2.7 'Advertising or Marketing Communication must be clearly distinguishable as such to the relevant audience.' The related Best Practice Guideline and this short piece July 2022 is essential reading, together with the Australian Influencer Marketing Council (AIMCO) Code of Practice August 2021. The Australian Consumer law is also relevant under article 29 false or misleading representations. The ACCC - the statutory authority in this context - state: 'The same rules that apply to all advertising and promotions apply to social media, including: a business’s posts on its own social media accounts, advertising on other social media platforms, social media posts that a business pays for, social media posts that a business offers incentives to influencers to make.' See the codes of practice and guidelines from the AANA and AIMCO especially for recommendations on when a post constitutes an ad and how to declare/ identify it. Specifics in our channel section C under online commercial communications or see the linked files.

 

LEGISLATION

 

Competition and Consumer Act 2010 (CCA); as amended and in force November 10, 2022

Schedule 2 - the Australian Consumer Law (ACL) covers inter alia misleading or deceptive conduct, unconscionable conduct, unfair practices, country of origin representations. Relevant clauses are in our following content section B or see the linked file; explanatory memorandum here

NSW Fair Trading Act 1987 No 68; other State Fair Trading laws can be found here 

Australia New Zealand Food Standards Code
The standards in the Australia New Zealand Food Standards Code are legislative instruments under the Legislation Act 2003

Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021

 

Authority

 

Australian Competition and Consumer Commission 

The ACCC is an independent statutory authority that enforces the Competition and Consumer Act 2010 and other legislation. State and territory consumer protection agencies have powers to enforce the ACL (Australian Consumer Law, schedule 2 of the Act above) in their applicable state or territory. The ACCC is a 'very active' authority (from legal commentary). Their Advertising and Promotions page is here

 

LEGAL/ INDUSTRY COMMENTARY

 

Quick guide to advertising content regulatory framework

IAB Australia April 2022

Advertising & Marketing in Australia

Baker McKenzie/ Lex May 2019

 

CHANNEL (PLACEMENT) RULES

 

Data Processing/ privacy

Privacy issues should be reviewed with specialist advisors 

 

  • The Privacy Act 1988 (compilation including act no. 83) is the principal piece of Australian legislation protecting the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information in the federal public sector and in the private sector. The Act was amended in December 2022 by the Online Privacy Bill, more formally The Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021, which significantly increases penalties under the Privacy Act and also increases the powers of the Australian Information Commissioner (OAIC);
  • The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988. They apply to any organisation or agency the Privacy Act covers. There are 13 APPs and they govern standards, rights and obligations around: the collection, use and disclosure of personal information, an organisation or agency’s governance and accountability, integrity and correction of personal information and the rights of individuals to access their personal information.' From the OAIC; also see related APP guidelines (July 2019);
  • Also relevant in this context is The Do Not Call Register Act 2006 (compilation to 2021) and the Spam Act 2003 (compilation to 2016). All states also provide privacy laws at the state and territory level; this database is not intended to be an exhaustive exploration of the state and federal provisions in privacy law and we therefore don't set out clauses here or in our following channel section C, but simply point to the principal rules and some key legal commentary:

 

Australian Data Protection Laws and Regulations 2022 from ICLG 

Comparing privacy laws: GDPR v. Australian Privacy Act from Onetrust data guidance and Mills Oakley

 

Broadcast

 

  • The Commercial Television Industry Code of Practice (2018). Section 6 covers scheduling restrictions for alcoholic drinks, intimate products and services, films and computer games and betting and gambling. Television advertisers are expected to ensure that advertisements (or other marketing communications) comply with the AANA Codes and the ABAC Responsible Alcohol Marketing Code. Section 4 covers disclosure of commercial arrangements, e.g. product placement;
  • Broadcasting Services Act 1992 (compilation to 18 February 2022) does not appear to have a major impact on in terms of advertising restrictions, though there are some provisions for online content providers and promotional gambling material under schedule 8;
  • The Children’s Television Standards 2009 ('made under subsection 122 (1) of the Broadcasting Services Act 1992'; compilation December 2014) refers to ad scheduling and content restrictions under CTS 26 through 36.

 

SPECIFIC CLAIM AREAS
Environmental

AANA Environmental Claims Code May 2018. Provisions are set out in our following content section B or see the linked file; 

Practice Note here; the Code of Ethics also includes provisions under 1.4. 

See also from AANA Going green? Ask yourself these questions before making any environmental claims November 2021

Businesses told to be prepared to back up their environmental claims from the ACCC September 2022

Green marketing and the Australian Consumer Law is also from the ACCC, published 2011 

And from Hall & Wilcox/ Lex December 2022 Regulators step up enforcement action over greenwashing claims

 

Pricing

 

Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in advertising with legal advisors

 

  • The unfair practices rules from the Australian Consumer Law, part 4, Div. 1 article 151 include the offense (i) 'makes a false or misleading representation with respect to the price of goods or services'; Chapter 3, Div 4 carries rules on pricing. The ACCC under their advertising and promotions page cover e.g. cashback offers
  • In self-regulation, inaccurate or incomplete pricing would likely fall under provisions under section 1.2. (competitor complaints) of the AANA Code of Ethics 'Advertising shall not be misleading or deceptive or be likely to mislead or deceive.'

 

 

 

...............................................................

B. Content Rules

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate, some headers are 'anchored' and linked to the respective text

 

 

1. SELF-REGULATION

 

1.1. AANA Code of Ethics and Practice Note 

1.2. Food and Beverages Code and Practice Note 

1.3. Alcohol: ABAC Responsible Marketing Code 

1.4. AANA Environmental Claims Code 

1.5. Advertising to children

 

2. LEGISLATION

 

2.1. ACL False or misleading representations 

2.2. ACL Pricing provisions

2.3. Environmental claims 

2.4. Other legislation in advertising 

 

 

 

Definitions

 

In this code, unless the context otherwise requires, advertising means:

  1. any advertising, marketing communication or material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable  degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct;
  2. but does not include:

  • labels or packaging for products;
  • corporate reports including corporate public affairs messages in press releases and other media statements, annual reports,  statements on matters of public policy;
  • in the case of broadcast media, any material which promotes  a program or programs to be broadcast on that same  channel, station or network.

 

  • Medium means any medium whatsoever including without limitation cinema, internet, outdoor media, print, radio, telecommunications, television or other direct-to-consumer media including new and emerging technologies;
  • Minor means a person under 18 years of age;
  • Prevailing Community Standards means the community standards determined by the Ad Standards Community Panel as those prevailing at the relevant time in relation to Advertising or Marketing Communication. Prevailing Community Standards apply to clauses 2.1 - 2.7 below on the following pages.

 

 

Section 1. Competitor complaints 

 

  • Advertising shall comply with Commonwealth law and the law of the relevant State or Territory (1.1)
  • Advertising shall not be misleading or deceptive or be likely to mislead or deceive (1.2)
  • Advertising shall not contain a misrepresentation, which is likely to cause damage to the business or goodwill of a competitor (1.3)
  • Advertising shall not exploit community concerns in relation to protecting the environment by presenting or portraying distinctions in products or services advertised in a misleading way or in a way which implies a benefit to the environment which the product or services do not have (1.4)
  • Advertising shall not make claims about the Australian origin or content of products advertised in a manner which is misleading (1.5)

 

 

Section 2. Consumer complaints

 

  • Advertising shall not portray people or depict material in a way which discriminates against or vilifies a person or section of the community on account of race, ethnicity, nationality, gender, age, sexual orientation, religion, disability, mental illness or political belief (2.1)
  • Advertising shall not employ sexual appeal (2.2):

  1. where images of Minors, or people who appear to be Minors, are used; or
  2. in a manner which is exploitative or degrading of any individual or group of people

 

  • Advertising shall not present or portray violence unless it is justifiable in the context of the product or service advertised (2.3)
  • Advertising shall treat sex, sexuality and nudity with sensitivity to the relevant audience (2.4)
  • Advertising shall only use language which is appropriate in the circumstances (including appropriate for the relevant audience and medium). Strong or obscene language shall be avoided (2.5)
  • Advertising shall not depict material contrary to Prevailing Community Standards on health and safety (2.6)
  • Advertising shall be clearly distinguishable as such (2.7)

 

 

  • Advertising for Food or Beverage Products must not be misleading or deceptive or likely to mislead or deceive (2.1)
  • Advertising for Food or Beverage Products must not undermine the importance of healthy or active lifestyles nor the promotion of healthy balanced diets or encourage what would reasonably be considered to be excess consumption through the representation of product/s or portion sizes disproportionate to the setting/s portrayed or by means otherwise regarded as contrary to the Australian Dietary Guidelines (2.2)
  • Advertising for Food or Beverage Products that include what an Average Consumer might interpret as a Health Claim or Nutrition Content Claim must be supportable by appropriate scientific evidence meeting the requirements of the Australian Food Standards Code (2.3)
  • Advertising for Food or Beverage Products including claims relating to material characteristics such as taste, size, content, nutrition and health benefits, must be specific to the promoted product/s (2.4)
  • Advertising for Food or Beverage Products not intended or suitable as substitutes for meals must not portray them as such (2.5)

 

Advertising and children
For definitions and scope see the linked files above

 

  • Advertising (including sponsorship advertising) of Occasional Food or Beverage Products must not target Children (3.1)
  • Sponsorship advertising that targets children must not show an Occasional Food or Beverage Product, or such product packaging, or depict the consumption of an Occasional Food or Beverage Product (3.2)
  • Advertising of Food or Beverage Products featuring a promotional offer of interest to Children must not create a sense of urgency or encourage the purchase or consumption of an excessive quantity (3.3)
  • Advertisers must not give to Children as awards or prizes Occasional Food or Beverage Products or vouchers that can be used for Occasional Food or Beverage Products (3.4)

 

​​Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018

 

S1.1.Advertising and Marketing Messaging Communications to Children for food and/ or beverages must:

 

  1. Represent healthier dietary choices, consistent with established scientific or Australian government standards, as detailed in Signatories' Company Action Plan; and
  2. Reference, or be in the context of, a healthy lifestyle, designed to appeal to Children through messaging that encourages: i) Good dietary habits, consistent with establishedscientificorgovernment standards; and ii) Physical activity.

 

Product Placement S1.2.

 

  • Signatories must not pay for the placement of, or actively seek to place, food and/or beverage products in the program or editorial content of any medium directed primarily to Children unless such food and/or beverage products are consistent with S1.1.

 

Use of Products in Interactive Games S1.3.

 

  • Signatories must ensure that any interactive game directed primarily to Children which includes the Signatory's food and/or beverage products is consistent with S1.1.

 

Advertising in Schools, Pre-Schools and Day Care Centres S1.4.

 

  • Signatories must not engage in any Advertising and Marketing Communication to Children in Australian primary schools, pre schools and day care centres, except where specifically requested by, or agreed with, the school administration for educational or informational purposes,or relatedto healthy lifestyle activities under the supervision of the school administration or appropriate adults.

 

See also the Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children March 2018 which adds to the above as follows: 

 

Children's Sporting Events

 

  • S1.5. Signatories must not give away food and/ or beverage products or vouchers to Children as awards or prizes at Children's sporting events unless those products meet the Nutrition Criteria.

 

Availability of Nutrition Information
 

  • S1.6. Nutrition profile information must be available on company websites and upon request in respect of all food and beverage products.
     

On-Pack Nutrition Labelling
 

  • S1.7. Nutrition profile information must be provided on packaging wherever possible in respect of those food products usually contained in such packaging to assist parents and guardians to make informed food choices for their Children.

 

1.3. ALCOHOL
The ABAC Responsible Marketing  Code February 2021

 

3.  Standards to be applied 

 

(a) Responsible and moderate portrayal of Alcohol Beverages Definition Alcohol Beverage means a beverage containing at least 0.5% alcohol by volume. A marketing communication must NOT:

 

  1. show (visibly, audibly or by direct implication) or encourage the excessive or rapid consumption of an Alcohol Beverage, misuse or abuse of alcohol or consumption inconsistent with the Australian Alcohol Guidelines;
  2. show (visibly, audibly or by direct implication) or encourage irresponsible or offensive behaviour that is related to the consumption or presence of an Alcohol Beverage;
  3. challenge or dare people to consume an Alcohol Beverage; or
  4. encourage the choice of a particular Alcohol Beverage by emphasising its alcohol strength (unless emphasis is placed on the Alcohol Beverage’s low alcohol strength relative to the typical strength for similar beverages) or the intoxicating effect of alcohol.

 

b) Responsibility toward Minors Definition Minor means a person who is under 18 years of age and therefore not legally permitted to
purchase an Alcohol Beverage in Australia
.
 A marketing communication must NOT:

 

  1. have Strong or Evident Appeal (definition here) to Minors;
  2. depict a person who is or appears to be a Minor unless they are shown in an incidental role in a natural situation (for example, a family socialising responsibly) and where there is no implication they will consume or serve alcohol;
  3. depict an Adult who is under 25 years of age and appears to be an Adult unless: • they are not visually prominent; or • they are not a paid model or actor and are shown in a Marketing Communication that has been placed within an Age Restricted Environment; or
  4. be directed at Minors through a breach of any of the Placement Rules.

 

(c) Responsible depiction of the effects of alcohol. A marketing communication must NOT:

 

  1. suggest that the consumption or presence of an Alcohol Beverage may create or contribute to a significant change in mood or environment;
  2. show (visibly, audibly or by direct implication) the consumption or presence of an Alcohol Beverage as a cause of or contributing to the achievement of personal, business, social, sporting, sexual or other success;
  3. if an Alcohol Beverage is shown (visibly, audibly or by direct implication) as part of a celebration, imply or suggest that the Alcohol Beverage was a cause of or contributed to success or achievement; or
  4. suggest that the consumption of an Alcohol Beverage offers any therapeutic benefit or is a necessary aid to relaxation.

 

(d) Alcohol and Safety:

 

A marketing communication must NOT show (visibly, audibly or by direct implication) the consumption of an Alcohol Beverage before or during any activity that, for safety reasons, requires a high degree of alertness or physical co-ordination, such as the control of a motor vehicle, boat or machinery or swimming.

 

4 No fault breach

 

A breach of this Code that is reasonably unforeseeable by or outside the reasonable control of the marketer or their agency will be classified as a no fault breach​.

 

 

https://aana.com.au/content/uploads/2018/03/180316-Environmental-Claims-Code.pdf

1. Truthful and factual presentation. Environmental claims in advertising or marketing communication:

 

  1. shall not be misleading or deceptive or be likely to mislead or deceive;
  2. shall display any disclaimers or important limitations and qualifications prominently, in clear, plain and specific language;
  3. shall represent the attributes or extent of the environmental benefits or limitations as they relate to a particular aspect of a product or service in a manner that can be clearly understood by the consumer.

 

2. A genuine benefit to the environment. Environmental claims must:

 

  1. be relevant, specific and clearly explain the significance of the claim;
  2. not overstate the claim expressly or by implication;
  3. not imply that a product or service is more socially acceptable on the whole.

 

3. Substantiation. Environmental Claims in Advertising or Marketing Communication:

 

  1. shall be able to be substantiated and verifiable. Supporting information shall include sufficient detail to allow evaluation of a claim;
  2. shall meet any applicable standards that apply to the benefit or advantage claimed;
  3. containing testimonials shall reflect the genuine, informed and current opinion of the person giving the testimonial.

1.5. Advertising to children

 

The key rules are found in the AANA Children's Advertising Code March 2021

  • Scope: Advertising or Marketing Communications to Children means Advertising or Marketing Communications which, having regard to the theme, visuals and language used, are directed primarily to Children and are for Product. The Board shall have regard to the Practice Note to this Code in determining whether Advertising or Marketing Communications are to children under this definition. 
  • The code addresses: Prevailing community standards, placement, factual presentation, sexualisation, safety, social values, parental authority, qualifying statements and competitions. It's a  comprehensive set of rules and too lengthy for inclusion of individual clauses here; see the linked code and practice note.

 

2. LEGISLATION IN ADVERTISING
Australian Consumer Law (Schedule 2, Competition and Consumer Act 2010)

 

The ACL contains a broad prohibition of misleading and deceptive conduct. Businesses have an obligation not to engage in any conduct that is likely to mislead or deceive consumers. Note that the conduct only needs to be likely to mislead or deceive; it does not matter whether the conduct actually misled anyone, or whether the business intended to mislead - if the conduct was likely to mislead or deceive, the ACL is contravened. In addition to the general rule against misleading or deceptive conduct, the ACL prohibits a variety of false or misleading representations about specific aspects of goods and services. False and misleading representations are more serious than general misleading and deceptive conduct and, where criminal proceedings are taken, can carry serious penalties under the ACL (from the Australian Competition and Consumer Commission; see their pages on false or misleading claims here)

 

Chapter 2. General Protections

Part 2.1. Misleading or deceptive conduct (key extracts only)

 

  • 18  Misleading or deceptive conduct

             

  1. A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
  2. Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).

 

Chapter 3. Specific Protections

Part 3.1 Unfair practices. False or misleading representations etc. (key extracts only)

 

  • 29  False or misleading representations about goods or services:

  1. A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services make a false or misleading representation that :

 

  1. goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or
  2. services are of a particular standard, quality, value or grade; or
  3. goods are new; or
  4. a particular person has agreed to acquire goods or services; or
  5. purports to be a testimonial by any person relating to goods or services; or
  6. make a false or misleading representation concerning:

                             

  1. a testimonial by any person; or
  2. a representation that purports to be such a testimonial relating to goods or services; or make a false or misleading representation

 

  1. that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or
  2. that the person making the representation has a sponsorship, approval or affiliation; or
  3. with respect to the price of goods or services; or concerning the
  4. availability of facilities for the repair of goods or of spare parts for goods; or 
  5. place of origin of goods; or
  6. need for any goods or services; or
  7. existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3 2); or
  8.  make a false or misleading representation concerning a requirement to pay for a contractual right that:
                                 

 

  1. is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3 2); and
  2. a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law).

2.2. Pricing provisions 

 

Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in advertising, especially new advertising, with legal advisors

 

  • The following provisions are taken from the Australian Consumer Law, Divisions 1 and 4 of Schedule 2 of the Competition and Consumer Act 2010. We do not regard these as representing an exhaustive review of consumer pricing provisions in Australian regulation, just the most high profile. It is often the case that transgression of pricing rules will also be assessed under misrepresentation rules (shown above);
  • Specifically, chapter 3, part 3.1 misleading representation section 29 1. 'A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: (i) make a false or misleading representation with respect to the price of goods or services;'
  • Pricing provisions are largely under Division 4; multiple pricing (e.g. a catalogueunder section 47 rules apply to the term 'displayed price', which includes 'any representation that may reasonably be inferred to be a representation of a price for the goods'; 
  • 'Single price to be specified in certain circumstances' is covered under Section 48 (7). Extract is: The single price is the minimum quantifiable consideration for the supply of the goods or services at the time of the representation, including each of the following amounts (if any) that is quantifiable at that time: (a)  a charge of any description payable to the person making the representation by another person unless: (i) the charge is payable at the option of the other person; and (ii) at or before the time of the representation, the other person has either deselected the charge or not expressly requested that the charge be applied; and (b) the amount which reflects any tax, duty, fee, levy or charge imposed on the person making the representation in relation to the supply; (c) any amount paid or payable by the person making the representation in relation to the supply with respect to any tax, duty, fee, levy or charge if: (i)  the amount is paid or payable under an agreement or arrangement made under a law of the Commonwealth, a State or a Territory; and (ii) the tax, duty, fee, levy or charge would have otherwise been payable by another person in relation to the supply.
  • There are also provisions under the same act, Part 3, Division 1 Section 35 'bait advertising' and 32 'Offering rebates, gifts, prizes etc.'
  • The Australian Competition and Consumer Commission (ACCC) is an independent Commonwealth statutory authority whose role is to enforce the Competition and Consumer Act 2010'. Their pricing page is here and from their fair trading pages the ACCC states: 'If you display or advertise prices, always include the total price. The total price must include all charges, taxes, duties, levies or fees (such as goods and services tax or airport tax). It doesn’t need to include optional charges such as delivery fees. If you display or advertise a price that is only part of the total price (for example, a price which doesn't include additional charges such as delivery or booking fees), the total price (as a single figure) must be as noticeable as the 'part price'. Comparison/ sale pricing guidance is shown on the same page;
  • In self-regulation, inaccurate or incomplete pricing would likely fall under provisions under section 1.2. (competitor complaints) of the AANA Code of Ethics 'Advertising shall not be misleading or deceptive or be likely to mislead or deceive.'

​Pricing in children's advertising (from self-regulation)

 

From the AANA Children's Advertising Code March 2021

From section 2.2 Factual presentation

 

  • (i) Prices, if mentioned in Advertising or Marketing Communications to Children, must be  accurately presented in a way which can be clearly understood by Children and must  not be minimised by words such as “only” or “just”;
  • (ii) Advertising or Marketing Communications to Children must not imply that the  Product being promoted is immediately within the reach of every family budget.

 

2.3. Environmental claims 

 

  • The self-regulatory AANA Environmental Caims Code is set out above under 1.4. and is probably the first port-of-call when checking the rules for what is highly sensitive regulatory territory worldwide;
  • Because of that sensitivity, and because activist groups bring actions under the law, advertisers and agencies should also review the applicable legislation, in this context the Australian Consumer Law, key provisions from which are set out under 2.1 above; 
  • Accompanying that law and providing specific guidelines is the Australian Competition and Consumer Commission's 'Green Marketing and the Australian Consumer Law'. It's from 2011, reportedly due for an update, but it's a very solid and clear explanation of the law and how it applies when making environmental claims, showing examples and cases and do's and don'ts. Extracted, though the full guide should be read, is:
  • 'If you wish to make environmental claims about your business or your product, they should be clearly and accurately explained. Generally, a claim should: 

 

  • ​be honest and truthful;
  • detail the specifi c part of the product or process it is referring to;
  • use language which the average member of the public can understand;
  • explain the signifi cance of the benefit;
  • be able to be substantiated.'

 

https://www.legislation.gov.au/Search/advertising

 

 

 

 

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C. Channel Rules

1. TV/Radio/VOD

SECTION C: TV & RADIO/ AV

 

 

ISSUES / NEWS

 

Seven and Nine breach gambling advertising rules. ACMA October 2022

 

KEY RULES 

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable. The Australian Consumer Law also applies;
  • The Commercial Television Industry Code of Practic (2018). Television advertisers are expected to ensure that advertisements (or other marketing communications) comply with the AANA codes and the ABAC Responsible Alcohol Marketing Code (5.7);
  • Section 4 covers disclosure of commercial arrangements, e.g. products in 'factual programs'; section 6 covers scheduling restrictions for alcoholic drinks (6.2), intimate products and services (6.3), films and computer games (6.4) and betting and gambling (6.5); these are all restricted according to 'Classification zones' set out under section 2, e.g. material that has been classified M may only be broadcast at the following times

 

a) School days 

7.30 pm to 6.00 am

12 noon to 3.00 pm

b) Weekends and school holidays  7.30 pm to 6.00 am
c) Public holidays  7.30 pm to 6.00 am

 

 

OTHER CODES AND THE AUTHORITY

 

 

 

 

..........................................................

2. Cinema/Press/Outdoor

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies;
  • In Outdoor media, the association requires in its alcohol advertising policy that 'advertising that is captured by this policy is not placed on fixed signs located within a 150 metre sightline from the boundary of a school.' Access to the rules here and pdf hereThe association also publish a 'general' Code of Ethics;
  • The Cinema trade association is the National Association of Cinerma Operators (NACO); we couldn't trace any codes/ rules related to commercial communications on their website. 

 

 

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3. Online Commercial Communications

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section carries the rules for marketing communications in the broader online space.

More specific channels such as direct electronic communications, advertisers' own websites, native etc. follow.

 

KEY RULES

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies;
  • With regard to data processing, The Privacy Act 1988 (compilation including act no. 83) is the principal piece of Australian legislation protecting the handling of personal and sensitive information about individuals;
  • The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988. They apply to any organisation or agency the Privacy Act covers. There are 13 APPs and they govern standards, rights and obligations around: the collectionuse and disclosure of personal information, an organisation or agency’s governance and accountability, integrity and correction of personal information and the rights of individuals to access their personal information.' From the OAIC; also see related APP guidelines (July 2019);
  • Marketing in the Digital Space, the AANA Practice Note March 2018, states: 'The AANA Codes are platform and media neutral and apply to existing digital media. It is envisaged that the Codes will apply to any future form of digital marketing that may be developed and that the Codes will evolve, if necessary, to remain relevant and applicable.' We've read this document with some care; in our view it's a very valuable helping hand for staying the right side of the rules in digital marketing in Australia.

 

INFLUENCERS ONLINE 

 

  • The key self-regulatory rule, established relatively recently, is from the AANA Code of Ethics 2.7 'Advertising or Marketing Communication must be clearly distinguishable as such to the relevant audience.' The related Best Practice Guideline is essential reading, together with the Australian Influencer Marketing Council (AIMCO) Code of Practice August 2021;
  • The Australian Consumer Law is also relevant to Influencer Marketing under article 29 false or misleading representations. The ACCC - statutory authority in this context - state: 'The same rules that apply to all advertising and promotions apply to social media, including: a business’s posts on its own social media accounts, advertising on other social media platforms, social media posts that a business pays for, social media posts that a business offers incentives to influencers to make.' 
  • The codes of practice and guidelines from the AANA and AIMCO carry recommendations on when a post constitutes an ad and how to declare/ identify it. From the latter under section 2.1:

 

  • 'The AANA current recommended advertising disclosure is in line with the UK and US to declare advertising, with words or hashtags #Ad or #Sponsored in relevant platforms or identified verbally in video formats.' That may be the case but may also be a slightly 'tighter' interpretation of the AANA's Code of Ethics Practice Note, which reads under section 2.7:
  • 'Influencer and affiliate marketing often appears alongside organic/genuine user generated content and is often less obvious to the audience. Where an influencer or affiliate accepts payment of money or free products or services from a brand in exchange for them to promote that brand’s products or services, the relationship must be clear, obvious and upfront to the audience and expressed in a way that is easily understood (e.g. #ad, Advert, Advertising, Branded Content, Paid Partnership, Paid Promotion). Less clear labels such as #sp, Spon, gifted, Affiliate, Collab, thanks to… or merely mentioning the brand name may not be sufficient to clearly distinguish the post as advertising.'

 

 

 

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4. Cookies & OBA

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

  • There is some uncertainty in the Australian legal community about the definition of personal information and the means of its permitted collection, and in some ways the consent regime is more 'relaxed' than in other jurisdictions: see Comparing privacy laws: GDPR v. Australian Privacy Act from Onetrust data guidance and Mills Oakley;
  • The applicable legislation is The Privacy Act 1988 (link is to compilation including act no. 83 December 2022) and under Schedule 1 of the act the Australian Privacy Principles (APPs; full principles linked, quick reference here). In this cookies and OBA context, the key APPs are 3-5 for Collection and APP 7 Direct Marketing, guidelines to that chapter here. Extracted from APP 7.2: 'an organisation may use or disclose personal information (other than sensitive information, terms defined here) about an individual for the purpose of direct marketing if:

 

  • the organisation collected the information from the individual;
  • and the individual would reasonably expect the organisation to use or disclose the information for that purpose;
  • and the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation;
  • and the individual has not made such a request to the organisation.'

 

  • The Bird&Bird Global Cookie Review of Winter 2022 includes Australia and very helpful content around consent/ personal information; the review precedes 2022 amends to the Privacy Act. From that review: 'There are no specific cookie-related laws in force in Australia. However, entities subject to the Australian Privacy Act must handle personal information in accordance with the Australian Privacy Principles (APPs). “Personal information” is defined under the Australian Privacy Act as information or an opinion about an identified individual or an individual who is reasonably identifiable.'
  • The relevant authority is the Office of the Australian Information Commissioner (OAIC), 'the independent national regulator for privacy and freedom of information.'

OBA

 

  • See above for data collection/ processing (or 'use') issues related to targeted advertising. The OAIC publish a page on Targeted advertising, written for the consumer, which provides a link to Youronlinechoices, the EU-based system supported by a number of organisations;
  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B, except where offline-specific; OBA/ targeted advertising is the same as any other advertising in that sense; principal source of content rules is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies. 

 

 

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5. Emails & SMS

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

CONTEXT AND DEFINITION

 

This section covers rules for 'direct electronic communications', per the header. By this we mean that we are addressing a particular form of 'direct marketing' and because that term can cover a wide variety of techniques, we define and qualify it. From the OAIC guidelines 7.9 'Direct marketing involves the use and/ or disclosure of personal information to communicate directly with an individual to promote goods and services. A direct marketer may communicate with an individual through a variety of channels, including telephone, SMS, mail, email and online advertising.' The 'electronic' descriptor in this section is intended to separate from e.g. postal mail and the direct marketing element relates to the targeting of individuals and therefore - in some cases - personal information processing. So when setting out the applicable rules, the two core principles that determine their relevance and inclusion are a) whether targeting is 'individual' and personal information may be processed and b) whether delivery to the consumer is electronically. To make those principles perhaps more meaningful, we have in mind email and SMS delivery, for example, though we realise that 'direct electronic communications' may encompass e.g. OBA and even 'broader' channels, which are anyway addressed in separate sections. We also appreciate that much 'direct marketing' may not include processing of personal data. 

 

Privacy issues should be reviewed with specialist advisors 

 

KEY RULES 

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies; 
  • So the content of commercial communication will be subject to the rules from the above (exemptions such as press releases are set out in the linked documents); whether data processing rules apply obviously depends on the type of data and how it's being used. The Australian privacy regime in this context is founded on The Privacy Act 1988 (compilation including act no. 83), the principal legislation protecting the handling of individuals' information and The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988.' 
  • There are thirteen APPS, of which the most important in this direct marketing context is APP 7. The terms and rules differ slightly from e.g. the European regime in as much as the term 'personal information' is used (vs personal data) and there is a further distinction between personal information Definition Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not and 'sensitive information', which includes information on e.g. racial origin, sexual orientation, political affiliations, religious beliefs etc. Full definitions of these terms are extracted here
  • The rules taken from APP 7 permit 'use or disclosure of personal information (other than sensitive information) about an individual for the purpose of direct marketing if: the organisation collected the information from the individual; and the individual would reasonably expect the organisation to use or disclose the information for that purpose; and the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation; and the individual has not made such a request to the organisation.'
  • Further exemptions (i.e. permissions to use or disclose personal information) are under section 7.3. These clauses are quite intricate and should be read in full, probably with a specialist advisor to hand, but boil down to: if there is not a 'reasonable expectation' of use or the information is from a third party, use/ disclosure is permitted when consent has been obtained, or if that is impracticable and the organisation provides a simple and 'prominent' means in each communication to opt out;
  • The Spam Act 2003 requires that i) Unsolicited commercial electronic messages must not be sent, ii) Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message and iii) Commercial electronic messages must contain a functional unsubscribe facility (Part 2).

'Sensitive information,' consent and guidance 

 

  • Use/ disclosure of sensitive information, as defined above, is subject to the individual's consent: 'an organisation may use or disclose sensitive information about an individual for the purpose of direct marketing if the individual has consented to the use or disclosure of the information for that purpose.' (7.4)
  • See also AIOC Guidance on Direct Marketing May 2019, essential reading which provides guidance on e.g. 'reasonable expectation' and opting out. Additionally and importantly, 'consent' is discussed:  '7.23 Consent is defined in s 6 (1) as ‘express consent or implied consent’ and is discussed generally in Chapter B (Key concepts). The four key elements of consent are: the individual is adequately informed before giving consent, the individual gives consent voluntarily, the consent is current and specific, and the individual has the capacity to understand and communicate their consent';

 

Trade association

 

  • https://www.adma.com.au/about: 'The Association for Data-driven Marketing and Advertising (ADMA) is the principal industry body for data-driven marketing and advertising.  The largest marketing and advertising association in Australia, ADMA represents over 600 brands.' Their regulatory pages are here

 

 

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6. Own Websites & SNS

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it's in remit. The AANA Practice Note March 2018 Marketing in the Digital Space states: 'Examples of digital marketing include all forms of commercial communication on Brand-owned websites or brand-managed social media pages (including mobile and tablet versions), including 3rd party user-generated comment (UGC)’ Advertising is defined as.......any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct. It does not include Excluded Labels or packaging for products, corporate reports including corporate public affairs messages  in press releases and other media statements, annual reports, statements on matters of public policy Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, see the Practice Note linked above. Notable exceptions include Material, includinmg UGC, over which the brand owner does not have reasonable control, even if brands or products of the brand owner are featured. Corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy and the like are also excluded 

 

Privacy issues should be reviewed with specialist advisors 

 

KEY RULES 

 

  • Advertising in all media, including owned (see above context) must observe the rules and interpretations set out in our preceding content section B except where identified as offline-specific; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies; 
  • The AANA Practice Note March 2018 Marketing in the Digital Space linked above is very helpful for marketers and agencies navigating regulation in the digital space generally and the various forms of, and content in, owned websites specifically; 
  • Data processing issues obviously arise in this owned website context.The Australian privacy regime is founded on The Privacy Act 1988 (compilation including act no. 83), the principal legislation protecting the handling of individuals' information and The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988.'
  • Direct marketing/ privacy rules, taken from APP 7 and related guidelines, are set out under the preceding header 'Direct Electronic Communications.' The rules are primarily about the use of personal and sensitive information. Collection of solicited and unsolicited personal information is covered by APPs 3, 4 and 5 and the OAIC guidelines. Very broadly (privacy issues should be reviewed with specialist advisors), collection of personal information is permitted when that is reasonably necessary for one or more of its functions or activities (APP 3.2); collection of sensitive information (terms are defined here) requires consent;
  • See  also the cookies and OBA section of this database, earlier in this channel section C. Bird&Bird's Global Cookies Review Winter 2022 is also very valuable; Australia p.56.

7. Native Advertising

SECTION C: NATIVE ADVERTISING

 

 

KEY RULES 

 

  • Section 2.7 of the AANA Code of Ethics requires that advertising must be clearly distinguishable as such. The related Practice Note (link is to the relevant page) sets out interpretation in some detail. The most relevant paragraphs, though the full interpretation should be read, are:
  • 'There is no absolute requirement that advertising or marketing communication must have a label however it must be clear to the audience. If it is clear to the audience that the content is commercial in nature (for example by the nature of the content, where the content is placed, how consumers are directed to the content, the theme, visuals and language used, or the use of brand names or logos), then no further disclosure or distinguishing element is needed. And:
  • 'Advertisers have flexibility as to how to ensure that material is distinguishable as advertising or marketing communication. Advertisers may use logos or brand names combined with other visual or audio cues where appropriate, such as background shading, outlines, borders, graphics, video or audio messages depending on the medium.'
  • Native advertising is the same as any other advertising in as much as its content must observe the rules and interpretations in the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies.

 

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8. Telemarketing

 

 

FOLLOWING FEEDBACK, WE NO LONGER COVER TELEMARKETING 

9. Direct Postal Mail

SECTION C: DIRECT POSTAL MAIL

 

 

CONTEXT

 

There are two aspects to the way in which we address this section: 1) the collection and use of personal and sensitive information (these terms defined here) when processing data and 2) the content of commercial communications in direct postal mail. Rules, or access to them, are set out below

 

KEY RULES

 

  • Whether data processing rules apply obviously depends on the type of data and how it's being collected and used. The Australian privacy regime in this context is founded on The Privacy Act 1988 (compilation including act no. 83), the principal legislation protecting the handling of individuals' information and The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988.' 
  • There are thirteen APPS, of which the most important in a direct marketing context is APP 7. The terms and rules differ slightly from e.g. the European regime in as much as the term 'personal information' is used (vs personal data) and there is a further distinction between personal information Definition Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not and 'sensitive information', which includes information on e.g. racial origin, sexual orientation, political affiliations, religious beliefs etc. Full definitions of these terms are extracted here
  • 'Marketing is not direct, and therefore APP 7.1 does not apply, if personal information is not used or disclosed to identify or target particular recipients, for example, where: an organisation sends catalogues by mail to all mailing addresses in a particular location, addressed ‘To the householder’ (that is, where recipients are not selected on the basis of personal information) an organisation hand delivers promotional flyers to the mailboxes of local residents' (Guidelines 7.12);

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies;
  • The latter especially carries some rules related to pricing and e.g 'bait advertising' which may be particularly relevant to direct postal mail; see content section B for details or the linked law

 

 

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10. Event Sponsorship/ Field Marketing

SECTION C: EVENTS/ SPONSORSHIP

 

 

This section covers rules related to sponsorship of events (versus media) 

 

SCOPE, KEY RULES 

 

  • The scope of the AANA Code of Ethics (February 2021) is stated as: 'In this Code, unless the context otherwise requires: Advertising means: (a) any advertising, marketing communication or material which is published or broadcast using any Medium or any activity (italics ours) which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct, (b) but does not include: labels or packaging for products, corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy, in the case of broadcast media, any material which promotes a program or programs to be broadcast on that same channel, station or network. And:
  • Medium means any medium whatsoever including without limitation cinema, internet, outdoor media, print, radio, telecommunications, television or other direct-to-consumer media including new and emerging technologies.
  • We take the above to mean that sponsorship is in the code's remit; accordingly, collateral material, i.e. support material around a sponsorship event, should observe the code and any related sector-specific codes (see section A - Overview - of this database) and it is likely to be the case that the Australian Consumer Law will also apply, albeit there won't be a great deal of legal activity in the sponsorship material business;
  • The best source of 'general' international rules are those from the ICC Advertising and Marketing Communications Code Chapter B, which covers e.g. ambushing, data capture etc. The clauses are spelt out under the International section, or see the linked code
  • It would obviously be the case that sector-sensitive sectors such as alcohol or gambling would need to avoid events where there is a relatively high proportion of minors in attendance (most guidance suggests > 25%); there is some sensitivity around sponsorship of events by gambling operators in particular;
  • From the Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018 S1.5. Signatories must not give away food and/ or beverage products or vouchers to children as awards or prizes at children's sporting events unless those products meet the nutrition criteria;
  • The Exhibition and Event Association of Australasia (EEAA) is 'the peak association for the exhibition and event industry in Australia and New Zealand, representing all aspects of the exhibition and event industry.' http://www.eeaa.com.au/

 

SOME READING 

 

  • There's a Sponsorship Q&A: Australia blog/ post from Practical Law which looks like it requires subscribed downloads. Sponsorhip News is helpful generally, albeit also requiring subscription for some services.

 

 

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11. Sales Promotion

SECTION C: SALES PROMOTIONS

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable. Sales promotions - when expressed in advertising -  will remain subject to the codes of practice as well as additional rules (some promotions, for example, transgress because they are misleading)
  • The Australian Consumer Law also applies and that legislation is an important source of promotional rules: Bait advertising and special offers are under ACL section 35 and Offering rebates, gifts or redemptions under section 32;
  • The ACCC (Australian Competition and Consumer Commission) carries some helpful Advertising, selling and promotional techniques pages which set out a summary of the rules, link the relevant legislation and show examples and some case law. For example on Bait advertising and special offers: 'Bait advertising is the practice of offering items for sale at low prices to attract consumers to a business. Bait advertising can be a legitimate form of advertising. However, it is illegal to engage in this conduct where goods or services are advertised for sale at a discounted price, and they are not available in reasonable quantities and for a reasonable period at that price. Legislation: Australian Consumer Law section 35 .You must state clearly if the good is in short supply or on sale for a limited time. For example, if your advertisement makes it very clear that goods are available at the discount price for ‘today only’, this will limit your obligations to that day. If there is not a reasonable chance the offer will be available at the advertised price, you may be in breach of the ACL unless you promptly offer a 'rain check', an acceptable substitute product or take other corrective action;
  • The ACCC's Cash back offers and gifts and prizes rules are here.

 

Legal commentary

 

What Permit Do I Need To Run A Promotion In Australia?

 

Sales promotions Q&A: Australia (needs sub)

 

 

 

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D. Advice & Clearance

SECTION D SRO SERVICES

 

 

https://adstandards.com.au/

 

Copy advice

 

https://adstandards.com.au/education-and-advice/copy-advice

 

Information and resources about the responsibilities of advertisers and media buyers in relation to the advertising self-regulation system complaints process can be accessed below.

 

Information for advertisers
 

Information for media buyers

 

 

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E. Links

SECTION E SOURCES/ LINKS

 

 

NATIONAL LEGISLATION

 

Competition and Consumer Act 2010 (CCA); as amended and in force November 10, 2022. 'The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection. 'The Competition and Consumer Act 2010 (CCA) (formerly the Trade Practices Act 1974) is a national law that governs how all businesses in Australia must deal with their competitors, suppliers and customers. The law is designed to enable all businesses to compete on their merits in a fair and open market, while also ensuring businesses treat consumers fairly. Consumer protection provisions are in the Australian Consumer Law (ACL), which is contained in a schedule to the CCA. The ACL governs business behaviour when advertising and interacting with consumers. It also sets out a number of consumer rights, including specific guarantee rights. State, territory and federal regulators including the Australian Competition and Consumer Commission (ACCC) enforce the ACL. Only the ACCC enforces the competition law, which is set out in the CCA.' From A guide to competition and consumer law.

www.legislation.gov.au/Details/C2022C00326

 

Authority

 

Australian Competition & Consumer Commission. 'The ACCC promotes competition and fair trade in markets to benefit consumers, businesses, and the community. We also regulate national infrastructure services. Our primary responsibility is to ensure that individuals and businesses comply with Australian competition, fair trading, and consumer protection laws - in particular the Competition and Consumer Act 2010.' The ACC publish a considerable amount of helpful information on tehir website including some practical 'walk-throughs' such as the Advertising and Selling Guide 

https://www.accc.gov.au/about-us

 

Privacy

 

The Privacy Act 1988 is the principal piece of Australian legislation protecting the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information in the federal public sector and in the private sector. The Act was amended in December 2022 by the Online Privacy Bill, more formally The Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021, which significantly increases penalties under the Privacy Act and also increases the powers of the Australian Information Commissioner (OAIC);

www.legislation.gov.au/Details/C2022C00361 (compilation including act no. 83)

 

The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988. They apply to any organisation or agency the Privacy Act covers. There are 13 APPs and they govern standards, rights and obligations around: the collection, use and disclosure of personal information, an organisation or agency’s governance and accountability, integrity and correction of personal information and the rights of individuals to access their personal information.' From the OAIC; also see related APP guidelines (July 2019);

www.oaic.gov.au/privacy/australian-privacy-principles/read-the-australian-privacy-principles

 

The Do Not Call Register Act 2006. Simplified outline: Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register; Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register. The main remedies for breaches of this Act are civil penalties and injunctions.

www.legislation.gov.au/Details/C2021C00356 (compilation to 2021)

 

The Spam Act 2003. Simplified outline: This Act sets up a scheme for regulating commercial email and other types of commercial electronic messages. Unsolicited commercial electronic messages must not be sent. Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message. Commercial electronic messages must contain a functional unsubscribe facility. Address harvesting software must not be supplied, acquired or used. An electronic address list produced using address harvesting software must not be supplied, acquired or used. The main remedies for breaches of this Act are civil penalties and injunctions.

www.legislation.gov.au/Details/C2016C00614 (compilation to 2016)

 

Authority

 

Australian Information Commissioner (OAIC). 'Our purpose is to promote and uphold privacy and information access rights. We do this by: making sure that Australian Government agencies and organisations with an annual turnover of more than $3 million, and some other organisations, follow the Privacy Act 1988 and other laws when handling personal information, protecting the public’s right of access to documents under the Freedom of Information Act 1982 (FOI Act), carrying out strategic information management functions within the Australian Government under the Australian Information Commissioner Act 2010 (AIC Act).' The OAIC also publish some helpful/ essential guides related to the Privacy Act and Principles, e.g. Australian Privacy Principles guidelines.

www.oaic.gov.au/about-us/what-we-do

 

Fair Trading laws by state

 

Australian Capital Territory
Access Canberra administers the ACT Fair Trading Act 1992- external site and provides information on codes of practice and other business guides for traders.

 

New South Wales
NSW Fair Trading administers the NSW Fair Trading Act 1987. Fair Trading's Acceptable business conduct provides business operators with information about how to trade fairly in New South Wales.

 

Northern Territory
Consumer Affairs administers the NT Consumer Affairs and Fair Trading Act 1990. You can find information on trader issues such as advertising, business tenancies, disposal of uncollected goods and product safety.

 

Queensland
The QLD Office of Fair Trading administers the QLD Fair Trading Act 1989. You can find information on business rights and responsibilities.

 

South Australia
Consumer and Business Services administers the SA Fair Trading Act 1987 and provides businesses with information on fair trading laws, advertising, handling complaints and warranties.

 

Tasmania
The Consumer, Building and Occupational Services administers the Australian Consumer Law (Tasmania) Act 2010 and has publications covering many aspects of fair trading.

 

Victoria
Consumer Affairs Victoria administers the Australian Consumer Law and Fair Trading Act 2012.

Forms and publications are available to help businesses understand fair trading.

 

Western Australia
Department of Mines, Industry Regulation and Safety administers the WA Fair Trading Act 2010.

 

 

Food and Beverages 

 

Australia New Zealand Food Standards Code. The standards in the code are legislative instruments under the Legislation Act 2003 and are described in the Code, which is a law that applies in Australia and New Zealand. The code provides: a common set of food composition and labelling rules agreed between New Zealand and Australia. Standard 1.2.7 Nutrition, health and related claims. This Standard: (a) sets out: (i) the claims that may be made on labels or in advertisements about the nutritional content of food (described as ‘nutrition content claims’); and (ii) the claims that may be made on labels or in advertisements about the relationship between a food or a property of a food, and a health effect (described as ‘health claims’); and (b) describes the conditions under which such claims may be made; and (c) describes the circumstances in which endorsements may be provided on labels or in advertisements.

www.foodstandards.gov.au/code/Pages/default.aspx

 

Therapeutic goods

 

Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021. 'The objects of this Code are to specify requirements for advertisements about therapeutic goods so that advertisements: (a) promote the safe and proper use of the therapeutic goods by minimising misuse, overuse or underuse; and (b) are ethical and do not mislead or deceive the consumer or create unrealistic expectations about the performance of the therapeutic goods; and (c) support informed health care choices; and (d) are not inconsistent with current public health campaigns.

www.legislation.gov.au/Details/F2021L01661

 

Infant formula

 

Marketing in Australia of Infant Formula: Manufacturers and Importers Agreement.

www.health.gov.au/internet/main/publishing.nsf/Content/health-pubhlth-strateg-foodpolicy-apmaif.htm

 

SELF-REGULATION

 

Ad Standards. 'Ad Standards manages the complaint resolution process of the advertising self-regulation system. Our vision is to be Australia’s community voice for complaints about advertising and marketing standards. Our purpose is to give a voice to consumer values and guide industry in maintaining decent and honest advertising aligning with prevailing community standards. Ad Standards functions as secretariat for the Ad Standards Community Panel and the Ad Standards Industry Jury - the two independent bodies established to determine consumer and competitor complaints against the advertising self-regulatory codes. Australia's current system of advertising self-regulation was established by the Australian Association of National Advertisers (AANA) in 1998.'

https://adstandards.com.au/about/ad-standards

https://youtu.be/ppV-AcORJ1w

 

The AANA (Australian Association of National Advertisers) Code of Ethics February 2021 is the core self-regulatory code in Australia, 'the overarching code setting out standards that apply to Advertising or Marketing Communication across any medium.' Advertising is defined in the code as follows: '(a) any advertising, marketing communication or material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct, (b). but does not include: labels or packaging for products, corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy. In the case of broadcast media, any material which promotes a program or programs to be broadcast on that same channel, station or network.' The code of Ethics is to be read with the Practice Note,  also February 2021, provided as a guide to interpretation.

aana.com.au/wp-content/uploads/2020/09/AANA_Code_of_Ethics_Effective_February_2021.pdf

 

Food and Beverages 

 

Food & Beverages Advertising Code November 2021. 'This Code has been adopted by the AANA as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers maintain a high sense of social responsibility in advertising and marketing food and beverage products in Australia in a manner that is legal, honest, truthful and reflects health and safety standards.'

aana.com.au/wp-content/uploads/2021/06/AANA_FoodBev_Advertising_Code_final.pdf

Reklated Practice Note:

aana.com.au/wp-content/uploads/2021/08/AANA_FoodBev_Advertising_Practice_Note_Aug21v.pdf

 

See also Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018:

www.afgc.org.au/wp-content/uploads/2019/06/Responsible-Childrens-Marketing-Initiative-March-2018.pdf

 

Australian Food and Grocery Council Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children. Adds inter alia provisions on Children's sporting events, availability of nutrition information and on-pack nutrition labelling:

https://www.afgc.org.au/wp-content/uploads/2019/06/QSR-Initiative-for-Responsible-Advertising-and-Marketing-to-Children-March-2018.pdf

 

Environmental

 

Environmental Claims Code May 2018. 'This Code has been adopted by the AANA as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers develop and maintain rigorous standards when making Environmental Claims and to increase consumer confidence to the benefit of the environment, consumers and industry. This Code is accompanied by a Practice Note which has been developed by the AANA. The Practice note provides guidance to advertisers and complainants, and must be applied by the Ad Standards Community Panel in making its determinations. In the event of any ambiguity the provisions of the Code prevail.'

aana.com.au/content/uploads/2018/03/180316-Environmental-Claims-Code.pdf

 

Environmental Claims Code Practice Note. 'This Practice Note is provided as a guide to interpretation to assist advertisers, their agencies and the community. The interpretations in this Practice Note are based on the AANA’s intent in relation to the Code and relevant determinations of the Ad Standards Community Panel.'

aana.com.au/content/uploads/2018/03/180316-Environmental-Claims-Code-Practice-Note.pdf

 

Gambling

 

Wagering Advertising Code July 2016. This Code has been adopted by the Australian Association of National Advertisers (AANA) as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing wagering products in Australia:

aana.com.au/content/uploads/2018/03/180316-Wagering-Advertising-Code.pdf

 

Wagering Advertising Code Practice Note May 2018:

aana.com.au/content/uploads/2018/05/180315-Wagering-Advertising-Code-Practice-Note.pdf

 

See also Keeping wagering ads in check September 2022

 

Children

 

Children’s Advertising Code March 2021. This Code has been adopted by the AANA as part of advertising and marketing self regulation. The object of this Code is to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing to children in Australia. This Code is accompanied by a Practice Note which has been developed by the AANA. The Practice note provides guidance to advertisers and complainants, and must be applied by the Ad Standards Board in making its determinations. In the event of any ambiguity the provisions of the Code prevail.The code addresses: Prevailing community standards, placement, factual presentation, sexualisation, safety, social values, parental authority, qualifying statements and competitions. 

https://aana.com.au/wp-content/uploads/2022/06/AANA_Advertising_Code_for_Childrens_V2.pdf

 

Children's Advertising Code Practice Note March 2021

aana.com.au/wp-content/uploads/2022/06/AANA_Code_for_Children_Practice_Note_V2.pdf

 

See also AANA has launched a review of the Children’s Advertising Code June 2022

 

FCAI Motor Vehicle Code and Practice Note. Undated; reviewed every 5 years. 'The Voluntary Code of Practice for Motor Vehicle Advertising (the FCAI Code) has been instituted by the Federal Chamber of Automotive Industries (FCAI) as a means of industry self-regulation of motor vehicle advertising in Australia. The primary purpose of the FCAI Code is to provide guidance to advertisers in relation to appropriate standards for the portrayal of images, themes and messages relating to road safety.'

adstandards.com.au/sites/default/files/fcai_voluntary_advertising_code_of_practice.pdf

 

 

Alcohol and Influencer

 

The ABAC Responsible Alcohol Marketing Code. The ABAC Responsible Alcohol Marketing Code is designed to ensure that alcohol is marketed in a responsible manner. Signatories to the Code are committed to ensuring that their marketing complies with the Code’s spirit and intent. The Code complements Australian legislation, the AANA Code of Ethics and media-specific codes relevant to the placement of marketing. Application: (a) The Code applies to all marketing communications in Australia generated by or within the reasonable control of a marketer, except as set out in Section 2(b). This includes, but is not limited to: brand advertising (including trade advertising), competitions, digital communications (including in mobile and social media and user generated content), Alcohol Beverage product names and packaging, advertorials, alcohol brand extensions to non-alcohol beverage products, point of sale materials, retailer advertising, marketing collateral. Signatories here

www.abac.org.au/wp-content/uploads/2021/03/ABAC-Responsible-Alcohol-Marketing-Code-26-February-2021.pdf

 

The Australian Influencer Marketing Council (AIMCO) Code of Practice August 2021. 'The Code of Practice has been created to elevate best practice across the influencer marketing community, protecting all concerned from reputational risk and legal action by not complying with Australian Consumer Law (ACL). The AiMCO Code of Practice has been developed from the feedback, information and discussions that have taken place across the influencer marketing ecosystem. AiMCO’s membership includes both corporate and content creator memberships. Corporate members are businesses and professional individuals from major advertising brands, media and creative agencies, talent representation, social and media marketing agencies, discovery platforms and industry providers such as legal firms. Find out who is a member of AiMCO on our Community Page.'

static1.squarespace.com/static/5f741c44029c373fe632e647/t/61541570a9213843c53d7adb/1632900464874/AIMCO_Code_Practice_August+2021.pdf

 

 

Channel 

 

ASTRA Codes of Practice (including Television and Radio). The Australian Subscription Television and Radio Association (ASTRA) is the peak body representing the subscription media industry in Australia. Members include television operators, independent content companies, technology companies and the industries that support them.  ASTRA manages codes of practice, and represents the industry with regulators and government:

www.astra.org.au/advocacy/codes-of-practice

 

Commercial Radio Code of Practice: This Code commences on 15 March 2017 and applies to all commercial radio broadcasting services operated by a Licensee:

commercialradio.com.au/CR/media/CommercialRadio/Commercial-Radio-Code-of-Practice.pdf

 

Commercial TV Code of Practice: 'Commercial free-to-air television content is regulated under the Commercial Television Industry Code of Practice. The Code is developed by Free TV Australia in consultation with the public and registered with the Australian Communications and Media Authority (ACMA). The Code regulates content in accordance with community standards; assists viewers in making informed choices about their own television viewing  and that of children in their care, and provides effective measures for receiving and handling viewer feedback and complaints. The Code contains provisions dealing with: program classifications; accuracy, fairness and respect for privacy in news and current affairs; advertising time on television; placement of commercials and program promotions; gambling advertisements; and complaints handling.'

www.freetv.com.au/content_common/pg-code-of-practice.seo

 

 

TRADE ASSOCIATIONS 

 

Courtesy of https://marketing.com.au/business-directories/marketing-industry-associations/

 

Australian Association of National Advertisers. The AANA represents the rights and responsibilities of companies and individuals involved in Australia’s $30 billion a year advertising, marketing and media industry. In the common cause of responsible advertising and marketing, the AANA today also serves to protect the rights of consumers in ensuring commercial communication is conducted responsibly within prevailing community standards. At a time of unprecedented change in advertising, marketing and media, the AANA provides ethical leadership, advocates continuous improvement in commercial communication practice, and promotes and protects freedom of commercial speech.

www.aana.com.au

 

Australian Marketing Institute (AMI). The leading organisation for marketing professionals in Australia. The Australian Marketing Institute’s record of service to the marketing profession goes all the way back to the institute’s origin in 1933. Over the intervening years we have continually evolved to meet the changing needs of marketers, delivering services to help members maximise their professional growth. Today the AMI represents professional marketers throughout Australia, including practitioners from all marketing functions and industries. Through our unified voice, the Institute has established strong links with business, academia and government to become the voice of the marketing profession. The AMI runs marketing training courses and holds a national conference each October and many local events throughout the year.

www.ami.org.au

 

Interactive Advertising Bureau. The Interactive Advertising Bureau (IAB) Limited is the peak trade association for online advertising in Australia and was incorporated in July 2010. As one of over 40 IAB offices globally, and with a rapidly growing membership, IAB Australia’s principal objective is to support and enable the media and marketing industry to ensure that they thrive in the digital economy. The role of the IAB is to work with its members and the broader advertising and marketing industry to assist marketers to identify how best to employ online as part of their marketing strategy, to better target and engage their customers and build their brands.

http://www.iabaustralia.com.au/

 

Australian Association of Social Marketing. 

https://aasm.org.au/

 

The Exhibition and Event Association of Australasia (EEAA) is 'the peak association for the exhibition and event industry in Australia and New Zealand, representing all aspects of the exhibition and event industry.' 

http://www.eeaa.com.au/

 

 

 

 

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