Key points

• The main purpose of the Public Health (Tobacco and Other Products) Bill 2023 (the Main Bill) is to consolidate existing Commonwealth tobacco legislation into a single Act (with regulations to be made under the Act).
• The Main Bill will also expand the existing advertising restrictions to apply to e-cigarettes, introduce new measures with respect to tobacco packaging, and introduce new reporting requirements for the tobacco industry.
• The Bills do not address the stronger regulation of e-cigarette availability and supply, they only seek to prohibit certain forms of e-cigarette advertisements and sponsorships.
• It is reasonable to assume that the proposed increased requirements contained in the Bill will enhance existing plain packaging measures by preventing tobacco companies from misleading consumers about the harmful effects of smoking, further reducing the appeal of tobacco products, and increasing the effectiveness of warnings.
• The prohibitions on tobacco and e-cigarette advertising and sponsorships should similarly contribute to the realisation of the objects of the Bill.

Introductory Info

Date introduced: 13 September 2023
House: House of Representatives
Portfolio: Health and Aged Care
Commencement: Public Health (Tobacco and Other Products) Bill 2023: sections 1 and 2 on Royal Assent; sections 3 – 185 on the earlier of a day to be fixed by Proclamation or 6 months after Royal Assent.
Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Bill 2023: sections 1 – 3 on Royal Assent; Schedules 1 – 2 either the same day as section 3 of the Public Health (Tobacco and Other Products) Bill 2023 commences or not at all.

Purpose and structure of the Bills

Public Health (Tobacco and Other Products) Bill 2023

The key purpose of the Public Health (Tobacco and Other Products) Bill 2023 (the Main Bill) is to consolidate existing Commonwealth tobacco legislation into a single Act (with regulations to be made under the Act).

The Bill also proposes to expand the existing framework to:

• update and improve graphic health warnings on packaging
• require health promotion inserts in packs and pouches
• capture e-cigarettes in advertising restrictions
• standardise the size of tobacco packets and products
• prevent the use of specified ingredients in tobacco products
• standardise the design and look of filters in cigarettes
• limit the use of appealing brand and variant names that imply reduced harm and
• introduce reporting requirements for the tobacco industry to disclose tobacco product ingredients, tobacco product sales volumes and promotional activities.

The Main Bill is divided into seven chapters:

• Chapter 1: sets out the preliminary matters including commencement dates, objects of the Act, definitions and key concepts.
• Chapter 2: incorporates existing requirements in the Tobacco Advertising Prohibition Act 1992 relating to tobacco, advertising and sponsorship and introduces new provisions relating to the advertising and promotion of e-cigarettes.
• Chapter 3: incorporates existing requirements in the Tobacco Plain Packaging Act 2011 relating to plain packaging of tobacco products, as well as additional measures. It also allows for regulations to be made prescribing plain packaging requirements and conditions for the appearance, content and standards of tobacco products.
• Chapter 4: consolidates existing provisions which ban certain tobacco products.
• Chapter 5: provides for new reporting requirements for the tobacco industry. Reporting entities, as defined, will be required to submit reports containing information about tobacco products sold, supplied, or offered for sale or supply in Australia as well as to report on advertising, promotion and sponsorship activities and expenditure.
• Chapter 6: deals with compliance and enforcement activities. It provides for the appointment of authorised officers and supporting monitoring and investigation powers, along with civil penalty provisions, and provision for infringement notices, enforceable undertakings and injunctions.
• Chapter 7: sets out miscellaneous provisions, such as delegation powers, cost recovery provisions and constitutional authority for the Act.

This Bills Digest primarily focuses on the provisions contained in Chapters 1, 2, 3 and 5 of the Main Bill.

Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Bill 2023

The Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Bill 2023 deals with consequential and transitional matters arising from the enactment of the Main Bill, including repealing the Tobacco Plain Packaging Act and the Tobacco Advertising Prohibition Act. This Bills Digest does not address specific provisions in the Main Bill and for further information about these provisions see the Explanatory Memorandum.

Background

Regulation of tobacco products in Australia

Tobacco regulation in Australia is shared between the Commonwealth, state and territory governments. Regulation in this space covers a range of areas, including taxation; sale/importation of tobacco products; advertising, promotion and sponsorship; packaging and labelling requirements; illicit/banned tobacco products; and public health requirements. This Bills Digest provides an overview of the relevant legislation in this space though is not intended to be comprehensive and focuses primarily on Commonwealth legislation.

Taxation

Since Federation, the Commonwealth Government has imposed customs and excise duties on tobacco products. The tobacco excise rate is indexed based on average weekly ordinary-time earnings (AWOTE) which is aimed at ensuring ‘that tobacco products do not become more affordable over time’. For a period, state governments also imposed a licence fee on tobacco products though this was later held to be unconstitutional.

Sale and importation of tobacco products

The importation of tobacco products into Australia is regulated at the federal level, whereas the sale of tobacco products is generally regulated at the state/territory level.

Most tobacco products are classed as ‘prohibited imports’ and therefore require an import permit before being imported into Australia. It is currently illegal to commercially import or sell smokeless tobacco products in Australia as per the Trade Practices Act 1974 – Consumer Protection Notice No. 10 of 1991 – Permanent Ban on Goods.

All cigarettes manufactured or imported into Australia must also comply with the mandatory standard for reduced fire risk. The standard is set out in the Trade Practices (Consumer Product Safety Standard) (Reduced Fire Risk Cigarettes) Regulations 2008.

Controls over access to, and supply of tobacco products, vary significantly between states and territories, with some jurisdictions having introduced licensing requirements for wholesalers and retailers. Broadly, restrictions on the sale of tobacco products relate to:

• prohibitions on the sale of tobacco products to children
• restrictions on the sale of tobacco products through vending machines
• restrictions on the sale of tobacco products at under-age music/dance events and other temporary outlets.[1]

Advertising, promotion and sponsorship

At the federal level, the Tobacco Advertising Prohibition Act and Tobacco Advertising Prohibition Regulation 1993 regulate advertising, promotion and sponsorship of tobacco products.

The intention of the Tobacco Advertising Prohibition Act is to limit the exposure of the public to messages and images that may persuade them to either start smoking or continue smoking; or to use, or continue using, tobacco products. The Tobacco Advertising Prohibition Act imposes restrictions on the broadcasting and publishing of tobacco advertisements.

The Tobacco Advertising Prohibition Act does not restrict state/territory governments from enacting their own concurrent legislation, with most state and territory governments having passed laws that restrict tobacco sponsorships, point-of-sale advertising and the retail display of tobacco products.

Packaging and labelling requirements

The packaging of tobacco is also regulated by Commonwealth and state/territory legislation.

Australia was the first country in the world to mandate plain packaging via the enactment of the Tobacco Plain Packaging Act and the Trade Marks Amendment (Tobacco Plain Packaging) Act 2011. The Tobacco Plain Packaging Act and the Tobacco Plain Packaging Regulations 2011 prohibit the use of all tobacco industry logos, brand imagery, colours and promotional text on the retail packaging of tobacco products. The legislation mandates that retail packaging of tobacco products be a standard drab dark brown colour, with the exception of health warnings, the brand and variant name and any other relevant legislative requirements.

Under the Competition and Consumer (Tobacco) Information Standard 2011, all tobacco products must also display certain text and graphic health warnings.

Public health requirements

Smoking restrictions and prohibitions are generally governed by state/territory laws. According to the Department of Health and Aged Care, in all states and territories it is illegal to smoke in enclosed public places though there are some variances with respect to exemptions to these requirements and the laws regulating smoking in outdoor areas. In all states and territories in Australia, it is also illegal to smoke in a car when a minor is inside.

Impact of existing tobacco control measures

Prior to the introduction of plain packaging in Australia, all the studies of its likely impacts were based on simulated plain packaging. These studies clearly demonstrated that plain packaging led smokers to perceive the packs as lower in appeal, made health warnings more salient, and reduced misapprehensions about the perceived harms of smoking (pp. 16–17).

Since the measure’s introduction a number of studies have confirmed these theoretical findings. A summary of the findings of several studies, published in a special edition of the British Medical Journal (BMJ) in 2015 concluded:

The evidence suggests that plain packaging is severely restricting the ability of the pack to communicate and create appeal with young people and adults. For instance, school-based surveys with students aged 12–17 year in 2011 and 2013 show that the removal of branding and uniformity of pack appearance has increased negative pack ratings and decreased positive ones. Cognitive processing of the health warnings did not change, however, suggesting that pack appearance is more relevant to young people than are the warnings.

A number of studies with adult smokers point to plain packaging fulfilling its core aims of reducing appeal, particularly among young adults, and increasing warning salience. In a cross-sectional tracking survey of cigarette smokers, plain packaging was associated with increased thinking about quitting and quit attempts. In addition, dislike of the pack, lower satisfaction from cigarettes and attributing motivation to quit to the warnings predicted daily thoughts of quitting. These findings may also help to explain why smokers were more likely to conceal their packs in outdoor venues after the introduction of plain packaging. Research with adults is not confined to cigarette smokers either, with a mixed methods study suggesting that the benefits of plain packaging may also extend to cigar and cigarillo smokers. A lesson perhaps for those governments (eg, Ireland, UK) planning to exclude such products from plain packaging legislation (p. ii1).

In 2016 the Department of Health conducted a post-implementation review of the tobacco plain packaging measure. As a part of the review, the Department summarised the findings of a range of studies of the measure’s impacts:

Taken as a whole, the studies summarised … provide early evidence that the tobacco plain packaging measure is having a positive impact on the three specific mechanisms of reducing the appeal of tobacco products, reducing the potential for tobacco packaging to mislead consumers, and enhancing the effectiveness of graphic health warnings. Studies also provide early evidence that the measure is resulting in positive changes to smoking behaviours. The body of evidence is diverse, including analyses conducted on a range of different groups (including adolescents, adults, cigarette smokers and cigar/cigarillo smokers) and using different datasets (including the National Tracking Survey, the NSW Tracking Survey, the ASSAD data, the ITC Project data and bespoke surveys) (p. 32).

The Department also engaged independent researcher, Dr Tasneem Chipty to conduct an econometric analysis of smoking prevalence data to determine whether plain packaging had had a discernible impact on the prevalence of smoking.

Dr Chipty based her analysis on data from the Roy Morgan Single Source Survey (RMSS) for the period January 2001 to September 2015. RMSS is described as ‘a nationally representative, repeated cross-sectional survey that asks every month each of about 4,500 participants aged 14 and above a series of smoking-related questions, including whether the respondent smokes each of various different tobacco products (e.g., factory-made cigarettes, roll-your-own cigarettes, pipe, and cigars). These data also contain a variety of demographic and socioeconomic information, including the respondent’s age, gender, marital status, immigration status, educational level, employment status, income level, and state or territory of residence’ (p. 6).

Dr Chipty argues that, given the range of national tobacco control policies introduced from 2001 to 2010 (such as the introduction of graphic health warnings on tobacco packaging in 2006 and a 25 per cent tobacco excise increase in 2010), this period provides a reasonable basis for estimating what smoking prevalence would have been after December 2012 without the plain packaging changes—the ‘before’ period. Chipty uses the period from December 2012 to September 2015 as the ‘after’ period for comparison purposes. The ‘before period’ includes 143 months of observational data, and the ‘after period’ 34 months of observational data.

After controlling for a range of variables, Dr Chipty found that the combination of plain packaging and enlarged graphic health warnings had resulted in a reduction in smoking prevalence. Dr Chipty estimated ‘a statistically significant decline in smoking prevalence of 0.55 percentage points over the post-implementation period, relative to what the prevalence would have been without the packaging changes’ (p. 3). This equates to 108,228 fewer smokers over the 34-month post‑implementation period from December 2012 to September 2015 (p. 39).

Following the introduction of plain packaging in Australia, several other jurisdictions have either implemented or plan to implement plain packaging measures. According to the Cancer Council:

As of September 2022, plain packaging laws have been adopted and implemented in 22 jurisdictions … and adopted with implementation pending in a further five countries. Legislation is being considered by parliaments in six countries, and is going through a formal process of consideration in a further four. Political commitments have been made in at least six countries.

Broadly speaking, evidence from studies conducted in other jurisdictions bears out the findings from Australia; that is, that plain packaging has in combination with other measures contributed to a reduction in smoking uptake, increased motivation to quit among smokers, and reductions in smoking prevalence. For a summary of the relevant evidence, see Tobacco in Australia.

Based on a general review of progress made in relation to plain packaging world-wide, Crawford Moodie et al concluded:

Evaluations suggest that plain packaging has improved health outcomes and has not burdened retailers, although research is limited to early policy adopters and important gaps in the literature remain. While the power of packaging as a sales tool has diminished in markets with plain packaging, tobacco companies have exploited loopholes to continue to promote their products and have increasingly focused on filter innovations. Opportunities exist for governments to strengthen plain packaging laws.

It is not possible to draw a causal link between tobacco advertising and sponsorship and smoking uptake by children and young people. The uptake of smoking is influenced by a multitude of factors, and, as such, it is not possible to single out any one variable as causal. Nevertheless, a significant body of evidence has demonstrated that tobacco advertising does influence levels of smoking, especially among children. Likewise, evidence demonstrates that banning or restricting tobacco advertising and marketing reduces both the prevalence and initiation of smoking.

New tobacco control measures

On 30 November 2022, the 10th anniversary of the introduction of plain packaging in Australia, Minister for Health and Aged Care, Mark Butler, announced that the Government planned to consolidate into a single Act all of Australia’s current tobacco measures, along with 11 new measures.

Minister Butler insisted that ‘Australia’s current patchwork quilt of eight different tobacco-related laws, regulations, instruments and court decisions is convoluted, outdated and full of loopholes’. This, he maintained, when combined with ‘nine years of delay and inaction’, has contributed to Australia’s losing its standing as a world leader in tobacco control, and more Australians suffering poor health and dying than is necessary. In Mr Butler’s view, the creation of a single streamlined Act along with the introduction of new measures would ‘reignite the fight against tobacco and nicotine addiction’.

The Government has argued that the reforms that would be enabled by the Bills are necessary to respond to:

… changes in the market and products which influence consumer behaviour and seek to undermine existing tobacco control measures. Reforms are also necessary to ensure Australia continues to meet its ongoing obligations under the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC).

The current Bills and proposed regulations have been informed by a thematic review of tobacco control legislation conducted by the Department of Health and Aged Care in 2019. The review drew on the suggestions of a range of stakeholders as to how the legislation could be improved to address current and future challenges and achieve the Government’s objectives in tobacco control.

Broadly speaking, the consultation identified as key themes:

• the need for policy and legislation to be responsive to emerging changes in smoking markets and patterns such as the growth in online sales and proliferation of marketing and promotional activities through social media platforms
• the challenges posed by the emergence of e-cigarettes and the need for a regulatory framework for this category of product given consumer and industry interest in the products and concerns regarding evidence both of their safety and efficacy as smoking cessation devices
• the fragmented nature of tobacco control regulation and inconsistencies between the Commonwealth and the states and territories’ tobacco control legislation
• the perceived opportunity to improve tobacco control by ‘centralising the administration, monitoring and enforcement of legislative interventions relating to the health impacts of tobacco use in one agency’ (pp. 8–9).

The review was intended to ensure that Australia’s tobacco control legislative framework would support the objectives outlined in the National Tobacco Strategy 2023–2030, which was released on 2 May 2023.

Further details of the review process and submissions in response to the review are available on the Department of Health and Aged Care website.

Following the review, the Government prepared exposure draft legislation which was the subject of a consultation process that ran from 31 May to 14 July 2023. Submissions to the consultation have not been published by the Department.

Minister Butler has indicated that the Government aims for the Bills to be passed by the Parliament by 1 April 2024. This is the sunset date of the Tobacco Plain Packaging Regulations and the Tobacco Advertising Prohibition Regulation. Mr Butler envisages that the updated regulations and requirements that the new legislation will enable will come into effect on 1 July 2025.

Proposed vaping control measures

The Minister has also insisted that the former government had been ‘asleep at the wheel on vaping’. Largely in response to evidence of an increase in e-cigarette use by children, Mr Butler announced in November 2022 a public consultation process on the regulation of nicotine vaping products to be run from 30 November 2022 to 16 January 2023 by the Therapeutic Goods Administration (TGA).

Following this process, the Minister announced that the Government would be proposing stronger regulation and enforcement in relation to all e-cigarettes—both those that contain nicotine and those that do not—‘including new controls on their importation, contents and packaging’.

According to Minister Butler, the Government will work with the states and territories to:

• stop the import of non-prescription e-cigarettes
• increase the minimum quality standards for e-cigarettes including by restricting flavours, colours, and other ingredients
• require pharmaceutical-like packaging
• reduce allowed nicotine concentrations and volumes
• ban all single use, disposable e-cigarettes.

The Government also intends to ‘work with the states and territories to close down the sale of vapes in retail settings, ending vape sales in convenience stores and other retail settings, while also making it easier to get a prescription for legitimate therapeutic use’.

The current Bill does not seek to enable any of the above e-cigarette-related measures; it only seeks to prohibit certain forms of e-cigarette advertisements and sponsorships.

The Government’s proposed stronger regulation of e-cigarette availability and supply, as well as its planned new controls on contents and packaging, are currently being worked through by the e‑cigarette working group, which is comprised of senior representatives from the federal, state and territory health departments.

Minister Butler has indicated that his preferred legal response to e-cigarette control would be ‘through Commonwealth legislation, rather than every single jurisdiction having to go through a parliamentary process’ as this would be ‘the quickest and most efficient way’.

Smoking rates

The National Drug Strategy Household Survey (NDSHS), conducted by the Australian Institute of Health and Welfare (AIHW), is the most comprehensive population-based source of data on the use of licit and illicit drugs in Australia. The results of this survey are released on a three-yearly basis, with the latest data available being for 2019.

Figure 1 shows rates of smoking in Australia among people aged 14 years and older from 1991 to 2019. The prevalence of smoking has declined considerably over this period, with the rate of daily smoking having more than halved (from 24.3% to 11.0%) and the proportion never taking up smoking increased (from 49.0% in 1991 to 63.1% in 2019).

The AIHW attributes much of the decline in daily smoking in recent years to the increased number of Australians never taking up smoking, rather than smokers quitting. Between 2013 and 2019 the rate of people never smoking increased by three percentage points, from 60.1 per cent to 63.1 per cent.

Figure 1: Tobacco smoking status, people aged 14 and over, 1991 to 2019 (per cent)

Source: Australian Institute of Health and Welfare (AIHW), National Drug Strategy Household Survey detailed report 2019, 6.

Committee consideration

Senate Community Affairs Legislation Committee

The Bill has been referred to the Senate Community Affairs Legislation Committee for inquiry and report by 22 November 2023. Details of the inquiry, including submission received, are available on the inquiry’s homepage.

Senate Standing Committee for the Scrutiny of Bills

The Committee had yet to report on the Bill at the time of writing of this Digest.

Policy position of non-government parties/independents

At the time of writing this Bills Digests, non-government parties/independents do not appear to have commented on the Bill.

Position of major interest groups

Following the Government’s announcement of its proposed tobacco and vaping control reforms several health organisations and experts expressed support for the measures.

Commenting on the legislation and regulation package, the Royal Australian College of General Practitioners (RACGP) stated ‘in general, the package is a good step forward and will provide improved consistency in the regulatory control of tobacco and e-cigarettes at the Commonwealth level’. The Public Health Association of Australia (PHAA) has indicated that it ‘strongly supports the essential modernisation of the ageing suite of Commonwealth tobacco control legislation’ and observed that the proposed legislation appeared to be ‘very comprehensive and appropriate’ (p. 4). On its introduction to the Parliament the Cancer Council Australia welcomed the Bill ‘as a critical action to prevent and further reduce harm caused by tobacco products and nicotine addiction’, adding that it ‘simplifies, modernises and helps future-proof tobacco control in Australia’.

While the Australian Medical Association (AMA) has also expressed support for the package of legislation and regulations (in exposure draft form), it went on to call on all governments to urgently work together to implement a retail ban on non-prescription e-cigarettes (p. 1).

Financial implications

The Government estimates that while there may be initial costs associated with implementation of the new measures, ‘in the long term there should be compliance savings as a result of consolidation of relevant compliance agencies’ (p. 13). According to the Explanatory Memorandum, the cost of implementing the proposed new measures are minimal and will be met through existing departmental resources (p. 13).

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.

The Government states that the Bills collectively engage the following rights:

• Right to health—Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• Right to life—Article 6 of the International Covenant on Civil and Political Rights (ICCPR)
• Right to freedom of expression—Article 19(2) of the ICCPR.

In addition, the Main Bill engages the following rights:

• Right to freedom of opinion—Article 19(1) of the ICCPR
• Right to take part in public affairs or elections—Article 25 of the ICCPR
• Right to privacy—Article 17 of the ICCPR
• Right to a fair trial and fair hearing rights—Article 14(1) of the ICCPR
• Right to a presumption of innocence—Article 14(2) of the ICCPR.

The Government considers that the Bills are compatible because to the extent the Bills limit human rights, those limitations are reasonable, necessary and proportionate.[2] Australia is a signatory to the World Health Organisation (WHO) Framework Convention on Tobacco Control (FCTC) and the Government also considers that the legislation is consistent with FCTC implementation guidelines and is supporting Australia to meet its international obligations (p. 16).

Parliamentary Joint Committee on Human Rights

The Committee had yet to report on the Bill at the time of writing of this Digest.

Key issues and provisions

Consolidation of legislation

The Main Bill and associated regulations will consolidate the:

• Tobacco Plain Packaging Act
• Tobacco Plain Packaging Regulations
• Tobacco Advertising Prohibition Act
• Tobacco Advertising Prohibition Regulation
• Trade Practices (Consumer Product Safety Standard) (Reduced Fire Risk Cigarettes) Regulations
• Trade Practices Act 1974 – Consumer Protection Notice No. 10 of 1991 – Permanent Ban on Goods
• Competition and Consumer (Tobacco) Information Standard.

As noted above, one of the issues highlighted in the thematic review was a perceived lack of consistency between Commonwealth and state and territory tobacco control legislation.

The consultation paper on the exposure draft of the Bill stated that ‘the proposed reforms do not limit the operation of state or territory laws relating to tobacco control, where those laws can operate concurrently. It is expected that Commonwealth and state and territory tobacco control laws will continue to operate alongside each other’ (p. 8). In its submission on the draft exposure legislation the PHAA expressed the view that ‘nothing in the new Commonwealth scheme should in any way detract from [state and territory] legislative systems’ (p. 5).

Exclusion for therapeutic goods

Under subclauses 9(5) and 11(5) of the Main Bill, a tobacco product or e-cigarette will continue to be not classed as a tobacco product or e-cigarette so long as it is included on the Australian Register of Therapeutic Goods (ARTG); that is, if it is a smoking cessation device.

The Main Bill will also introduce new definitions for ‘tobacco product accessory’ and ‘e-cigarette accessory’ (clauses 10 and 12). For example, a ‘tobacco product accessory’ would include crush balls/capsules (which add a flavour or substance to a tobacco product when crushed by the user) and novel cigarette filters which make products more attractive to current smokers and attract new users. A tobacco product accessory or e-cigarette accessory will also not be classed as a tobacco product or e-cigarette so long as it is included on the ARTG (subclauses 10(5) and 12(4)). This also means that such products included on the ARTG are not captured by the advertising restrictions in Chapter 2 of the Main Bill.

Although nicotine vaping products may be prescribed for smoking cessation, they have not been approved by the TGA for this or any other therapeutic purpose and are therefore not included on the ARTG. The TGA notes that there are established pathways for consumers to legally access unapproved nicotine vaping products, with a valid prescription, which include the Authorised Prescriber Scheme, Special Access Scheme and the Personal Importation Scheme.[3]

Some commentators have argued that current restrictions applied to nicotine liquid and nicotine vaping products amount to a de facto prohibition on these products. This, they maintain, has led to few doctors being prepared to prescribe nicotine vaping products for smoking cessation purposes and the diversion of users to ‘a thriving illicit market’.

Tobacco and e-cigarette advertising and sponsorships

Chapter 2 of the Bill sets out a general prohibition on advertising and sponsorship for regulated tobacco and e-cigarette products.

Currently, the Tobacco Advertising Prohibition Act and Tobacco Advertising Prohibition Regulation regulate advertising, promotion and sponsorship of tobacco products. These provisions will now be incorporated into the Main Bill and associated regulations, though they have been amended to expand the scope of the prohibitions. In particular, clause 30 of the Main Bill provides that a person publishes a tobacco advertisement if the person uses any means of communication to make it available to the public. This means that the prohibition will now apply to tobacco advertising on the internet and other forms of electronic media and will capture other forms of media in the future. Subclause 30(4) clarifies that material is considered to have been communicated to the public where it has been communicated at a private event/function for the purpose of promoting smoking or tobacco products/manufacturers. 

The provisions in proposed parts 2.4 and 2.5 of Chapter 2 of the Main Bill will also expand the advertising and sponsorship prohibitions to e-cigarette products. Clause 43 defines
e-cigarette advertisement to mean any form of communication, recommendation or action that promotes or is likely to promote, whether directly or indirectly, vaping, an e-cigarette product or the use of such a product. According to the consultation paper on the exposure drafts of the Bills, this definition is based on that for a tobacco advertisement which is based on the WHO FCTC definition of that term (p. 9).

The Government will also have the power to make regulations prescribing a kind of material to be either a tobacco advertisement or e-cigarette advertisement (subclauses 20(6) and 43(6)). Contraventions of the tobacco and e-cigarette advertising and sponsorship provisions will give rise to a fault-based offence, an offence of strict liability and a civil penalty provision. There are also a number of exceptions provided for in the legislation, including for government or political matters (clause 26), or the publication in certain circumstances of material relating to a news/current event report (clause 28).

E-cigarette advertising and sponsorships

Because e-cigarettes are a comparatively recent invention research on many aspects of the devices is not extensive. Nevertheless, according to Elizabeth Greenhalgh and Michelle Scollo there is mounting evidence that e-cigarette advertising is effective, in the sense that it results in young people having ‘more positive attitudes toward, greater curiosity about and higher intention to use the products, as well as reductions in their perceptions of health risks of e-cigarette use’. There is also evidence of an association between e-cigarette marketing exposure and increased use of e-cigarettes.

In light of such evidence, and concerns that e-cigarettes may act as a gateway to young people taking up smoking and help to re-normalise smoking, public health experts and other commentators have been calling for bans on the promotion of e-cigarettes in Australia since 2015. Public health experts and the AMA have argued that the advertising of e-cigarettes should be subject to the same restrictions as are applied to tobacco cigarettes—that is, that there should be no advertising of these products at all.

Such measures would appear to have strong public support. Based on National Drug Strategy Household Survey data, in 2019 over two-thirds of Australians supported restrictions on where and when e-cigarettes can be advertised (p. 13).

While the prohibition on both e-cigarette and tobacco advertisements and sponsorships applies to any means of communication—including the internet, which is where most e-cigarette advertising occurs—this is likely to prove difficult to enforce. In their submissions on the draft legislation both the AMA and PHAA acknowledge this, with the former organisation calling for further information on how the claims made by online e-cigarette retailers would be regulated and enforced.

The RACGP has observed ‘it is not clear how the proposed advertising and sponsorship provisions will address emerging forms of media such as product placement in social media sites that are hosted overseas, for example TikTok. It is unclear what process of enforcement can be imposed on such overseas based sites promoting tobacco products to Australia’. The RACGP also noted that the enforcement of the relevant regulations would require funding and sought further clarity regarding which Commonwealth body/agency would have the role of monitoring and enforcement.

Tobacco sponsorship for political donations and electoral expenditure

Under Article 5.3 of the WHO FCTC implementation guidelines, Australia is obliged to ensure that efforts to protect tobacco control from commercial and other vested interests of the tobacco industry are comprehensive and effective. Priority Area 1 of the National Tobacco Strategy 2023–2030 specifies a number of actions ‘to further implement Australia’s obligations under Article 5.3 of the WHO FCTC’ (p. 12).

One of these actions—action 1.4—requires that Australian governments ‘develop and implement measures to prohibit contributions from the tobacco industry and those working to further its interests to political parties, candidates or campaigns; or to require full disclosures of such contributions’ (p. 13). The Main Bill explicitly makes exceptions for tobacco and e-cigarette sponsorship in relation to political donations and electoral expenditure (clauses 40 and 67). As such, the Government has chosen the latter of the two actions specified.

Currently, the Nationals are the only major federal political party that accepts donations from the tobacco industry. In the lead up to the 2013 Federal Election the ALP made a commitment, if re-elected, to amend the Commonwealth Electoral Act 1918 ‘to ban donations from tobacco companies to Australian political parties and candidates’.

In their submissions to the consultation on the exposure draft legislation the PHAA, the AMA, and the RACGP all expressed the view that political donations from tobacco companies should be entirely prohibited. However, the PHAA observed that ‘the proper forum to decide such legislative policy should be through the provisions of the Commonwealth Electoral Act’ and that ‘a live debate about banning donations from tobacco and several other unhealthy business sectors is ongoing’ (p. 6).

In its submission the AMA suggested that, in the absence of a ban on political donations, the reporting and information disclosure requirements set out in Chapter 5 of the Bill and the Regulations should be expanded. It felt that the term ‘lobbying’ (at paragraph 133(3)(e)) ought to be defined in legislation and the required reporting expanded to specifically include ‘direct and indirect lobbying to political and government leaders and staff’ (p. 5). Neither of these suggestions were adopted by the Government.

Packaging changes

Chapter 3 of the Bill proposes to incorporate existing requirements in the Tobacco Plain Packaging Act relating to packaging of tobacco products, along with several additional measures aimed at reducing the appeal of tobacco products, including:

• allowing the regulations to prescribe additional requirements for tobacco products relating to the number of units, weight and volume of a tobacco product and the pricing of tobacco products (clause 76)
• prohibiting the inclusion of prohibited tobacco product accessories (clause 81), including those that alter, or are capable of altering, the flavour or smell of a tobacco product (clause 91)
• requiring health promotion inserts in packs and pouches (clause 82)
• updating and improving graphic health warnings on packaging (clause 78)
• restricting the use of flavours and additives (clause 87)
• limiting the use of appealing brand and variant names (defined as prohibited terms) that imply reduced harm (clauses 73, 77 and 85).

Further information on the Government’s rationale for, and evidence supporting, each of the new requirements is provided at pages 3–12 of the Explanatory Memorandum.

While plain packaging has been found to be effective, a number of stakeholders who engaged in the thematic review argued that the Tobacco Plain Packaging Act and Tobacco Plain Packaging Regulations 2011 could be strengthened through the introduction of requirements that would further reduce the appeal of cigarettes to smokers or would-be smokers. As noted above, such changes are considered necessary to respond to the tobacco industry’s development of new products that challenge the objectives of plain packaging requirements. 

Broadly speaking, the requirements recommended by stakeholders and included in the Main Bill (see above) would prevent the retail packaging of tobacco products from misleading consumers about the harmful effects of smoking, increase the effectiveness of health warnings incorporated in the retail packaging of tobacco products, and further standardise cigarettes to reduce their appeal to consumers.

In its submission on the exposure draft legislation the AMA indicated that it supported the packaging and product requirements set out in the Bill and the regulations. The AMA also welcomed the requirement for the addition of health promotion inserts into tobacco product packaging (under the proposed regulations) (p. 4). The RACGP similarly endorsed all the proposed packaging and product requirements, singling out as essential the prohibition on terminology used to imply that tobacco products are less harmful or safer.

New reporting and information disclosure requirements

The provisions in Chapter 5 of the Bill will require certain manufacturers and importers of tobacco products (defined as reporting entities in clause 130) to provide to the Secretary of the Department of Health and Aged Care the following reports every financial year:

• a report identifying the ingredients used in manufacturing tobacco products (clause 131)
• a report providing information relating to the volume of tobacco products imported into, or sold and supplied in Australia (clause 132)
• a report providing information about the entity’s marketing and promotional expenditure (clause 133).

A reporting entity may combine these reports into one report for the relevant financial year and the Secretary, by notifiable instrument may determine that a reporting entity is not required to provide one or more reports (clauses 138 and 134).

The Minister must publish each report provided by a reporting entity unless they are satisfied that it would not be appropriate to do so (the Minister must not publish information that is a trade secret or has a commercial value that would or could be destroyed if the information was disclosed) (clause 145).

Contraventions of the reporting requirements give rise to a fault-based offence, an offence of strict liability and a civil penalty provision (clause 148). The Minister will also have the power to publish information about failures to comply with the requirements, including the identity of the reporting entity (clause 147).  

Following the Government’s announcement of its proposed new tobacco control measures tobacco control researcher Becky Freeman welcomed the possibility of increased industry reporting requirements. In Freeman’s view, the ‘higher degree of mandated tobacco industry transparency and reporting’ could potentially ‘make further reforms faster and more responsive’. This, she argues, is essential given that:

Public health is always lagging behind tobacco industry marketing and sales innovations. Requiring the industry to fully report its marketing activities, rather than spending time and resources trying to track these activities is far more efficient.