tcn investigation report 3090

8/12/2019 TCN Investigation Report 3090

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ACMA Investigation Report 3090Advertisement for Clever Smoke-broadcast by TCNSydneyon 16 August 2013

Investigation Report No. 3090

File No. ACMA2013/1358

Licensee TCN Channel Nine Pty Ltd

Station TCN Sydney

Type of Service Commercial Television

Name of Program AdvertisementClever Smoke

Date/s of Broadcast 16 August 2013

Relevant

Legislation/Code

Clause 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992

(Cth)

Date finalised 11 November 2013

Decision No breach of clause 7(1)(a) of Schedule 2 to the BroadcastingServices Act 1992 (Cth)


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ACMA Investigation Report 3090Advertisement for Clever Smoke-broadcast by TCNSydneyon 16 August 2013 2

The complaint

On 16 August 2013, the Australian Communications and Media Authority (the ACMA)

received a complaint in relation to an advertisement for a product called Clever Smoke, an

electronic cigarette replacement product including a battery and evaporator which produces avapour that looks like smoke. The advertisement was broadcast on TCN Sydney by TCN

Channel Nine Pty (the licensee) on the same date.

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

tobacco.

Paragraph 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (Cth) (the BSA)

states that it is a condition of a commercial television broadcasting licence that the licensee

will not, in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth) (the TAP Act),

broadcast a tobacco advertisement within the meaning of that Act.

The advertisementThe advertisement was broadcast in the format of an infomercialon the program Mornings, a

light entertainment program featuring interviews, news and celebrity gossip broadcast from

9:00am to 11:00am on weekdays. It featured a presenter and a Clever Smokerepresentative,

who discussed the product and outlined a special offer for it and its various accessories that

could be accessed by customers by calling a specified telephone number.

The representative made the following statements during the advertisement:

Clever Smokelooks, feels and even tastes like a normal cigarette, but [has] none of

the health risks;

Clever Smokeis nicotine-free;

Independent testing proves Clever Smokecontains no tar, no nicotine, no heavymetals, in fact not one of the thousands of toxic substances found in tobacco;and

Your friends, family and co-workers dont have to worry about their health when you

light up, because theres no risk of passive smoking; and

Switching to the product would save the average smoker $7,000 per year.

The advertisement included the following visual material:

The presenter and the representative discussing the product in the licensees studio;

Images of the product and its accessories; Images of a person smoking tobacco cigarettes and coughing

Images of a person who was short of breath;

Repeated images of a person seemingly repulsed by a smokers unpleasant odours;

Footage of people storing/charging their Clever Smokee-cigarettes;

A brief image of a lit tobacco cigarette in a smokers hand;

A brief image of the screen split into two halves; one half with an ashtray full ofsmouldering standard cigarette butts and one half with an ashtray containing just one

Clever Smokee-cigarette; and

Close up image of a cigarette paper being rolled with tobacco.

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


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Assessment

This investigation is based on submissions from the complainant and the licensee and a copy

of the broadcast provided to the ACMA by the licensee. Other sources used have been

identified where relevant.Ordinary, reasonable viewer test

In assessing content against the Codes, the ACMA considers the meaning conveyed by the

relevant material. This is assessed according to the understanding of an ordinary,

reasonable viewer.

Australian Courts have considered an ordinary, reasonable reader (or listener or viewer) to

be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of

mind, nor avid for scandal. That person does not live in an ivory tower, but can and does

read between the lines in the light of that persons gene ral knowledge and experience ofworldly affairs.1

In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning

of the language, context, tenor, tone, and any inferences that may be drawn. In the case of

factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has ascertained the meaning conveyed, it then determines whether the

Code has been breached.

Issue: Did the licensee broadcast a tobacco advertisement?

Relevant legislation

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

7.Conditions of commercial television broadcasting licences

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

(a) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act

1992 , broadcast a tobacco advertisement within the meaning of that Act.

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

9. Meaning of tobacco advertisement

Basic meaning

(1) Subject to this section, for the purposes of this Act, a tobacco advertisement is any

writing, still or moving picture, sign, symbol or other visual image, or any audible message, or

any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is

intended to promote:

(a) smoking; or

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

1Amalgamated Television Services Pty Limited v Marsden(1998) 43 NSWLR 158 at pp 164167


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(c) the whole or a part of a trade mark that is registered under the Trade Marks Act

1955 in respect of goods that are or include tobacco products; or

(d) the whole or a part of a design that is registered under the Designs Act 2003 in

relation to products that are or include tobacco products; or

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

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

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

products; or

(f) any other words (for example the whole or a part of a brand name) or designs,

or combination of words and designs, that are closely associated with a

tobacco product or a range of tobacco products (whether also closely

associated with other kinds of products).

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

8. Defined terms

" smok ing" means smoking tobacco products.

" tobacco product" means:

(a) tobacco (in any form); or

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

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

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

(iii) that is not included in the Australian Register of Therapeutic Goods

maintained under the Therapeutic Goods Act 1989 ; or

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

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

14. Accidental or incidental broadcast permitted

A person may broadcast a tobacco advertisement if:

(a) the person broadcasts the advertisement as an accidental or incidental

accompaniment to the broadcasting of other matter; and

(b) the person does not receive any direct or indirect benefit (whether financial or

not) for broadcasting the advertisement (in addition to any direct or indirect

benefit that the person receives for broadcasting the other matter).

Complainants submissionsThe complainant submitted the following to the ACMA on 16 August 2013:

I am writing to make a direct complaint to ACMA about what appeared to be, in my

opinion, an advertisement for tobacco through the advertisement of a tobacco smokers

accessory, a tobacco filter.

[...]

The amount of time spent in the advertisement talking about smoking, even if the

advertisement included references to the well-publicised risks to health of smoking

tobacco, and included a neat comparison of the relative health of 60year-old smokers

and non-smokers, and was for a smoking accessory, seemed to me to be an


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advertisement for tobacco because it was advertising a product intended to be used

with tobacco, and by tobacco smokers, and made repeated references to smoking.

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

Licensees submissionsExtracts from the licensees submissions can be found at Attachment B.

Finding

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

Reasons

The ACMA considers that Clever Smokeis not a tobacco product for the purposes of s.8 of

the TAP Act. The advertisement makes it clear that the e-cigarette does not contain tobacco

and states that it is nicotine-free. The ACMA accepts the licensees submission that Clever

Smokedoes not containnicotine or tobacco.

Given that Clever Smokedoes not contain tobacco, the ACMA considers that it does not fall

within the definition of a tobacco product at s.8 of the TAP Act (extracted above), in that it

does not [contain] tobacco as its main or a substantial ingredient.

However, section 9 of the TAP Act defines a tobacco advertisement as any writing, still or

moving picture, sign, symbol or other visual image, or any audible message, or any

combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is

intended to promote, among other things, smoking and the use of a tobacco product.

The ACMA notes that in addition to the e-cigarette, the advertisement included images of

tobacco, tobacco products and depictions of people smoking tobacco cigarettes. These

limited portions of the advertisement could fall within the definition of a tobacco

advertisement at section 9 of the TAP Actas they gave publicity to, or increased public notice

of, smoking and tobacco products.

Sect ion 14 - incidental or accidental accompanim ent

The ACMA considers, that any material that could be considered as a tobacco advertisement

in the broadcast material was permitted under s.14 of the TAP Act, as it was an incidental

accompaniment to the broadcast of other matter, namely the advertisement for Clever

Smoke, a non-tobacco product.

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

The ACMA considers that the other matter in this instance was the advertisement for Clever

Smoke. The thrust of the advertisement was the promotion of that product.

Any images that had the effect of giving publicity to smoking and tobacco products did not

dominate the advertisement at the expense of the central message conveyed by it. They were

2Rothmans of Pall Mall (Australia) Ltd v Australian Broadcasting Tribunal(1985) 58 ALR 675; Director

of Public Prosecutions V United Telecasters Sydney Limited(1989) 168 CLR 594


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fleeting and not a substantial component of the advertisement, and therefore happened in

subordinate conjunction with the other matter.

The ACMA has not been provided with any evidence indicating that the licensee received any

direct or indirect benefit for the broadcast of the advertisement, in addition to that received forClever Smokesee s.14(b).

Accordingly the licensee did not contravene the TAP Act, and therefore did not breach its

licence condition at Clause 7(1)(a) of Schedule 2 to the BSA.


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Attachment A

Transcript of the Advertisement

PresenterAre you a smoker, or is someone you love a smoker? Well, [D] is here to show

you a fantastic device that could save you $7,000. Good morning, [D].

Clever Smok erepresentativeGood morning, [Y]. 7,000? Its a lot, isnt it? And this

morning, Ill show you how you can save all this in just a year. Smoking is the leading cause

of preventable death in the western world, killing nearly 5 million people every year. In this

country, life expectancy is over 79 but the average smoker dies at 65, nearly 15 years sooner.

PresenterWow, 15 years! I had no idea it was that much, its awful, isnt it.

Clever Smok erepresentativeIt is, but Ive got great news. Because now theres a

solution; a nicotine-free alternative. This is Clever Smoke. Its an electronic cigarette, that

looks, feels and even tastes like a normal cigarette, but its got none of the health risks.

PresenterWow, none of the health risks?

Clever Smok erepresentativeThats right, none. Clever Smoke is designed and

engineered in Germany to the highest quality standards. And independent testing proves

Clever Smoke contains no tar, no nicotine, no heavy metals, in fact not one of the thousands

of toxic substances found in tobacco.

PresenterThis sounds a lot safer than regular smoking.

Clever Smok erepresentativeAnd its not just healthier for you, because theres no

lighters or flames, theres no risk of scorch marks, no smouldering cigarette butts, and best of

all, your friends, family and co-workers dont have to worry about their health when you light

up, because theres no risk of passive smoking.

PresenterGreat.

Clever Smok erepresentativeRemember: smokers die nearly 15 years before non-

smokers. Every single tobacco cigarette can take 29 minutes off your life, and if youre 60 and

a smoker, youre 83% more likely to die this year than a 60-year-old non-smoker. So Clever

Smoke can help save your own life.

PresenterAnd apparently save you a small fortune as well?

Clever Smok erepresentativeIt certainly can. If youre an average smoker this year, you

will spend well over $7,000 on cigarettes. And dont forget the governmenthas decided the

price of cigarettes is guaranteed to keep going up every year.

PresenterSo whatever youre spending now on cigarettes, its just going to get worse, isnt

it?

Clever Smok erepresentativeUnless you make the switch right now to Clever Smoke.

And another great advantage of Clever Smoke is you can use it wherever you like.

PresenterSo no more being kicked out in the cold because of your habit; this sounds like a

much better option than smoking cigarettes. So tell us, what offer have you got for us today?

Clever Smok erepresentativeIts a great offer. How would you like an extra $7,000 a year,

cold hard cash in your pocket?


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PresenterYes please.

Clever Smok erepresentativeWell, you can start saving it right now. Because today weve

worked out a very special offer for the viewers. Call right now on 1800, 997 997 and you can

try Clever Smoke on a 30 day risk-free trial, for a trial price of only $9.90. You get the fullClever Smoke kit, which includes a long-lasting rechargeable lithium polymer battery, a wall

charger and five tobacco flavour cartridges that last you the equivalent of 60 cigarettes, all

stowed in this slim, stylish case. But wait: call right now and well give you five extra cartridges

of authentic menthol flavour, five of sweet vanilla and five freshly-roasted coffee flavour, and

five more refreshing apple. Thats a total of 25 cartridges, the equivalent of over 300

cigarettes, absolutely free.

PresenterWow, and that number is 1800 997 997.

Clever Smok erepresentativeBut wait, theres more: youll never need to go without your

Clever Smoke, because theres a handy USB adaptor, and well give you this car charger

absolutely free. Thats right, in this special, TV-only offer, you get the entire Clever Smoke kit,with a handy USB adaptor. Plus, well give you 25 extra flavour cartridges and the car charger

absolutely free. And you get to try everything you see here in a 30 day, risk-free trial, for a trial

price of only $9.90. But you must call right now, on 1800 997 977. And if youre not happy for

any reason, simply return everything within the trial period for a full refund of your trial price,

no questions asked. Call 1800 997 997. This offer is not available in stores, so call now.

PresenterThats right. Call on 1800 997 997.


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Attachment B

Licensees submissions

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

Nine believes the product featured in this advertorial complied with the [BSA] as the

product complied with all relevant laws and regulations as warranted by the client to

Nine and contained no tobacco or nicotine.

[...]

Nines compliance with the TAP Act

The product was supplied to Nine from client, [company name], who warranted to nine

that this product complied with all laws, regulations and codes in Australia and Nine

reasonably relied in good faith on the warranties provided by client as part of a

contractual agreement. The client warranted to Nine that the product does not contain

nicotine or tobacco and therefore the product does not fall within the definition of

tobacco product and therefore the advertisement is [not] a tobacco advertisement

under the TAP Act.

Attached... is a statement from the Brand Developers confirming this product does not

contain tobacco which Nine reasonably relied on when broadcasting this product.

The warranties contained in the advertorial agreement state:

Client warrants, represents and undertakes to Nine that the Advertorials and

Material do and will comply with all laws, statutes, regulations, codes of

practice and any standards determined by any relevant regulatory agency or

industry self-regulating body applicable to free-to-air commercial broadcastand/or infomercials or advertorials (sic).

The definition of tobacco product under clause 8(b)(i) of the TAP Act states: any

product that contains tobacco as its main or substantial ingredient which as discussed

above the client has warranted to Nine the product does not contain tobaccoand

therefore as the first element of Clause 8(b)(i) is not satisfied. Thus, the other elements

under Clause 8(b)(ii-iii) are not applicable as the definition of tobacco product under

Clause 8(b)(i-iii) are collective elements that all must be met to meet the definition.

Also, the product is not currently included in the Register of Therapeutic Goods

pursuant to the Therapeutic Goods Act 1989as warranted by the client to Nine that the

product does not fall within this Act. Therefore, the product does not satisfy theelements for the definition for the definition of tobacco product under Clause 8(b).

As the product does not satisfy the definition in Clause 8 it follows that it does not

breach the elements in Clause 9 for the Product to constitute a tobacco advertisement.

Clause 9(1)(a) of the TAP Act lists smoking as the first element in deciphering a tobacco

advertisement. Clause 8 of the TAP Act defines smoking as means smoking tobacco

product. This product does not promote smoking as it does not contain tobacco to be

smoking tobacco product and therefore the product is not smoking under Clause

9(1)(a).

Clause 9(1)(b) of the TAP Act states the purchase or use of a tobacco product or range

of tobacco products. The TAP Act defines a tobacco product under Clause 8(a) as


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tobacco in any form which as mentioned above based on the warranties provided to

Nine from the client, this product does not contain tobacco and therefore this product is

not considered to be a tobacco product under the TAP Act.

The other elements of the TAP Act under clause 9(1)(c-f) are irrelevant in this instanceas the product does not satisfy the definition of tobacco product and therefore does not

meet these requirements.

The complaint states this is an advertisement for tobacco however as the product

featured in the advertorial does not meet the required elements to constitute a tobacco

advertisement under the TAP Act, Nine believes it has complied with the Act. If the

ACMA wishes to discuss further information regarding the product Nine believes it is

appropriate to contact Brand Developers.

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