Explainer: alcohol advertising under the Free TV Code

The Broadcasting Services Act 1992 (BSA) establishes a co-regulatory framework, under which broadcasting industry groups develop, monitor and administer codes of practice, in consultation with the Australian Communications and Media Authority (ACMA). The ACMA maintains a register of broadcasting industry codes and must be satisfied certain statutory conditions are met before registering a code.

Broadcasting industry codes of practice are registered by the ACMA under section 123 of the BSA if it is satisfied that:

• the code provides appropriate community safeguards
• the code is endorsed by a majority of relevant broadcasters
• members of the public have been given an adequate opportunity to comment on the code.

Find out more about the ACMA’s role

There are various provisions under the Free TV Code that impact when alcohol advertising may be broadcast on terrestrial free-to-air television. The Free TV Code does not apply to online television content, including broadcast video-on-demand platforms such as 7plus, 9Now and 10 Streaming.

2.2.2 M Classification zone. Subject to subclause 2.3.2(a), material that has been classified M may only be broadcast at the following times:

2.2.3 MA15+ Classification zone. Subject to subclause 2.3.2(b), material that has been classified MA15+ may only be broadcast between 8.30 pm and 5.00 am on any day.

6.2.1 A Commercial for Alcoholic Drinks may be broadcast at any of the following times:

1. in the M and MA15+ classification zones set out in Section 2 (except between 5.00 am and 6.00 am, and 7.30 pm and 8.30 pm); and
2. as an accompaniment to a Sports Program on a Weekend or a Public Holiday; and
3. as an accompaniment to the broadcast of a Live Sporting Event broadcast simultaneously across more than one licence area, if one of subclauses (a) or (b) is satisfied for:
   
   1. the licence area in which the Live Sporting Event being broadcast is held, for an event taking place in Australia
   2. the majority of metropolitan licence areas in which the Live Sporting Event is shown, for an event taking place overseas

Alcoholic Drink means a beverage which at 20° Celsius contains more than 1.15 per cent alcohol by volume.

Commercial for Alcoholic Drinks means a Commercial that directly promotes the use or purchase of one or more Alcoholic Drinks. It does not include: 

1. Program sponsorship announcements which make no direct reference to the price of goods or services;
2. a Commercial which does not directly promote an Alcoholic Drink for an entity or company that participates in the manufacture, distribution or sale of Alcoholic Drinks;
3. a Commercial where alcohol or a brand associated with alcohol is incidental and any alcohol consumption responsibly depicted;
4. a Commercial for a licensed restaurant or club, entertainment venue, tourist attraction or dining establishment.

Other clauses in the Free TV Code that directly and indirectly impact the placement of alcohol advertising include: 

• clause 2.4 relates to special care requirements for non-program material, which provides restrictions for advertisements during specified hours, including during G or PG programs and children’s programming.
• subclause 2.3.4 also permits the scheduling of program or non-program matter (e.g. commercials), outside the applicable classification zone in specific circumstances including (b), where it is justified by the availability of its target audience.
• subclause 2.6.1 prohibits the broadcast of any material that is classified higher than MA15+. 

The Free TV Code is one of several regulatory regimes that apply to the advertising and promotion of alcohol products.

Australian Content and Children’s Television Standards 2020 

In addition to the Free TV Code, the Broadcasting Services (Australian Content and Children’s Television) Standards 2020 (ACCTS) contains restrictions on when alcohol advertising may be broadcast that apply to commercial television broadcasting licensees in Australia. The ACCTS were made under subsection 122(1) of the BSA. Under section 37 of the ACCTS: 

1. A licensee must not broadcast an advertisement for alcoholic drinks during a C classified program, or in a break immediately before, during or immediately after a C classified program.
2. A licensee must not broadcast an advertisement or sponsorship announcement immediately before, during or immediately after a C classified program that identifies or refers to a company, person, or organisation whose principal activity is the manufacture, distribution or sale of alcoholic drinks. 

To obtain a C or P classification, a program must comply with all the C (children’s) or P (preschool children’s) classification criteria, as set out in section 8 of the ACCTS.

Alcoholic Beverages Advertising Code (ABAC) Scheme

The ABAC Scheme is a not-for-profit organisation funded by industry and established to promote responsible marketing of alcohol. ABAC self regulates alcohol advertising and implements and enforces the Responsible Alcohol Advertising Code 2024 (ABAC Code), which applies to advertising in any media. 

The ABAC Code applies to marketing communications for alcohol or alcohol alternatives within the reasonable control of a producer, distributor or retailer that has a link to Australia, with some exceptions (see part 2(b) of the code).

The placement standards under part 4 require a range of reasonable steps to be taken to ensure marketing is only directed to adults, and mandates that alcohol and alcohol-alternative marketing communications (among other things): 

• must comply with code provisions that have been published by Australian media industry bodies (for example, the Free TV Code)
• must apply available age restriction controls
• may only be placed where the audience is reasonably expected to be comprised of at least 80% adults. If the media platform does not have age restriction controls available, must not be placed with programs or content primarily aimed at minors.

The ABAC Scheme has also developed Guidance notes to assist advertisers to interpret the ABAC Code. 

Australian Association of National Advertisers Code of Ethics 2021

In addition to the ABAC Scheme, alcohol advertising is also subject to the Australian Association of National Advertisers’ Code of Ethics 2021, a self-regulatory industry code that applies to advertisers across all media. 

A program standard is a legally binding legislative instrument that mandates specific requirements for broadcasters.

This review will inform the ACMA’s assessment of whether it should determine a program standard on alcohol advertising in the Free TV code under subsection 125(1) of the BSA, which confers power on the ACMA to determine a standard where a code of practice fails.

The ACMA may only determine a program standard on alcohol advertising if the ACMA is satisfied:

• there is convincing evidence that the Free TV Code is not operating to provide appropriate community safeguards
• it should determine a standard in relation to alcohol advertising.

Because the ACMA’s power to determine a standard is discretionary, even if it is satisfied there is ‘convincing evidence’ the Free TV Code is not providing ‘appropriate community safeguards’, or that there is no code registered for a subsection 123(2) matter (whichever is relevant), other matters or considerations may justify not making a standard. The ACMA is entitled to use its own experience and expertise as a specialist regulator to make this decision. 

The ACMA has previously exercised its power under subsection 125(1) to determine the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2022, which applies to commercial radio broadcasting licensees that broadcast current affairs programs. 

Pursuant to subsection 123(2), the ACMA has also determined standards that apply to narrowcasting television services and subscription television narrowcasting services, including the Broadcasting Services (Anti-terrorism Requirements for Television Narrowcasting Services) Standard 2021.