Tobacco advertising: Compliance update – October 2026

The rules around tobacco and e-cigarette advertising have changed. The Public Health (Tobacco and Other Products) Act 2023 (the Public Health Act) commenced on 1 April 2024 to replace the Tobacco Advertising Prohibition Act 1992 (TAP Act). It introduced strict prohibitions on broadcasting tobacco or e-cigarette advertisements. 

The ACMA has received complaints about tobacco advertising. Broadcasters are encouraged to review their practices to ensure compliance with their licence conditions. 

The Broadcasting Services Act 1992 (schedule 2) imposes licence conditions on broadcasters. They must not, in contravention of the Public Health Act, broadcast a tobacco or e-cigarette advertisement.

What defines a tobacco advertisement

Tobacco advertisement is defined broadly under subsection 20(1) of the Public Health Act. It includes any communication that promotes or is likely to promote, directly or indirectly, tobacco or related items.

Unless the contrary is proved, material is assumed to promote smoking when it includes:

• registered trademarks or designs for tobacco products
• logos, colours or branding that are closely associated with tobacco products.

An equivalent definition applies to e-cigarette advertisements under section 43.

Examples of tobacco advertisements may include: 

• Broadcasts that feature the registered trademarks of cigarette manufacturers. 
• Footage that promotes smoking, including where it is portrayed in a positive or encouraging manner. This is even without identifying specific brands or products, having regard to the overall context and presentation of the material.

A tobacco advertisement does not have to involve any commercial arrangement.

Whether material constitutes a tobacco advertisement will depend on the overall context, including how the material is presented and its likely effect on viewers.

Broadcasters are encouraged to review this definition to ensure internal guidelines and processes around what constitutes a tobacco advertisement are consistent with the law.

A key change under the Public Health Act is that it is no longer necessary to establish that the broadcaster intended to publish a tobacco or e-cigarette advertisement. 

This means that there is a significantly lower threshold for breach than under the former TAP Act. 

Exceptions

The Public Health Act sets out a range of exceptions for material that will not constitute a tobacco or e-cigarette advertisement in sections 21–29 and 44–53, including:

• section 27: public interest exception – provides that artistic works or communications made for genuine purposes in the public interest are exempt from the definition of ‘tobacco advertisement’ 
• section 28: journalism exception – provides an exemption for material to be published that is, or relates to, a news or current affairs report, providing it meets specified criteria. 

The scope and operation of these exceptions vary, and whether an exception applies will depend on the circumstances of the broadcast. 

Broadcasters are encouraged to review these provisions.

Importantly, the Public Health Act does not include an exception for the accidental or incidental broadcast of a tobacco or e-cigarette advertisement. 

Regulatory responsibilities

The ACMA is responsible for investigating complaints about compliance with broadcasting licence conditions under the BSA.

The Department of Health, Disability and Ageing administers the Public Health Act. It may take separate action for non-compliance with the prohibition on publishing a tobacco advertisement. The Department of Health, Disability and Ageing has a broader jurisdiction over various forms of advertisements, including in print media, online and streaming services.

This licence condition applies to: 

• commercial television broadcasting licences (paragraph 7(1)(a)) 
• commercial radio broadcasting licences (paragraph 8(1)(a))
• community broadcasting licences (paragraph 9(1)(a))
• subscription television broadcasting licences (paragraph 10(1)(a))
• class licences (paragraph 11(1)(a)) 
• datacasting licences (paragraph 24(1)(b)).

This update is not definitive and is not legal advice. Broadcasters should consider seeking independent legal or compliance advice where appropriate.

If you have any questions about this update, you can contact the ACMA at ContentObligations@acma.gov.au.

The Department of Health, Disability and Ageing also released guidance in 2024 about complying with the Public Health Act: Guide to advertising and sponsorship prohibitions. 

You can contact the Department of Health, Disability and Ageing at tobaccocompliance@health.gov.au.