Quick Guide to Advertising Content Regulatory Framework 

On April 14, 2022 Policy and Regulation

What rules do ads need to comply with and who needs to comply?

There are numerous laws and regulations that apply to advertising content.  While this post is not an exhaustive list, here is a brief summary of three key areas advertisers and marketers need to be aware of:

  1. Australian Consumer law (Schedule 2 to the Competition and Consumer Act 2010)

The main overarching requirement on all advertising content is the prohibition on businesses from engaging in misleading or deceptive conduct (Schedule 2, s 18), including in relation to:

  • the quality, value or grade of goods/services
  • the performance characteristics, accessories, benefits and uses of goods/services
  • the place of origin of a product (where it was made or assembled)
  • the price of goods or services
  • a buyer’s need for the goods or services
  • testimonials relating to goods/services.
  • any guarantee, warranty or condition on the goods and services.

This requirement applies to anyone making a statement ‘in trade or commerce’ and includes ads or statements in any media (print, radio, television, social media and online) or on product packaging, and any statement made by a person representing a business.  It includes unintentional as well as intentionally misleading statements. 

While there is a publisher’s defence, the defence is limited to statements where the publisher did not know, and had no reason to suspect, that the statement was misleading or deceptive. The ACCC together with State and Territory consumer protection agencies enforce the ACL and substantial financial penalties can be imposed, depending on the nature of the contravention.

  1. AANA and other self-regulatory codes overseen by AdStandards

The Australian Association of National Advertisers (AANA) administers a comprehensive body of self-regulatory rules that advertisers and marketers need to be aware of and comply with.  These rules are contained in codes that apply to all marketing and advertising material across any medium, with the obligation to comply being on the advertiser.  The codes are:

As the AANA notes on its website, these codes are designed to maintain a high sense of social responsibility in advertising and marketing.

In addition to the AANA Codes, AdStandards can also hear complaints in relation to the following self-regulatory codes:

Complaints under any of these self-regulatory codes are managed by Ad Standards.  Information about how their complaints system works can be accessed here. If a complaint is upheld, the ad cannot be re-broadcast or re-published in the same format or medium.

  1. Legislation and codes that regulate specific advertising content

In addition to the ACL and self-regulatory codes, there are a range of laws and regulations that apply nationally to specific types of advertising.  These include:

Election Advertising

  • Particularly relevant at the moment, the Commonwealth Electoral Act 1918 (CEA) and associated determination set out the requirements for tagging election advertising across all platforms and includes printed material, social media, voice calls and text messaging. Electoral matter under the CEA is defined as:
  • matter that is communicated, or intended to be communicated, for the dominant purpose of influencing the way electors vote in a federal election of a member of the House of Representatives or of Senators for a State or Territory (sections 4(1) and 4AA).

NB this definition is slightly different to ‘election matter’ that applies to broadcasters under the BSA.  The person who authorises the content of the ad (eg the political party) will be responsible for ensuring the tagging requirements are complied with.  Financial penalties apply under the Act. 

Gambling Advertising

  • Interactive Gambling Act 2001– sets out the rules for companies that offer or advertise gambling services. It covers all gambling that takes place online, through a website or app or via a telephone.  It prohibits advertising/publication of a “designated interactive gambling service”, including on a website.  A range of penalties can be imposed under the Act.
  • Ban of gambling advertising during live sporting events at certain timesSchedule 8 to the Broadcasting Services Act and Online Content Service provider rules sets out the parameters of the prohibition on gambling advertising during live sporting events online.

Therapeutic Goods advertising

Food Advertising

Health Services

Cosmetics and other products containing industry chemicals

  • The Australian Industrial Chemicals Introduction Scheme (AICIS), formerly the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) – regulates industrial chemicals including ingredients in cosmetics (but also other products such as paints, adhesives, inks, plastics, glues, solvents and soaps).

These requirements apply in addition to platform specific regulations under codes of practices (for example, the various broadcasting codes of practice) and jurisdiction specific regulations under State and Territory laws (for example, each State and Territory has its own rules in relation to gambling advertising in addition to those set out above that apply nationally).

 Australians and the environment by assessing the risks of importing or manufacturing (introducing) industrial chemicals and promoting their safe use. AICIS focuses on chemicals, polymers and ingredients of products used in printing, plastics, mining, construction, paints, adhesives, consumer goods, cosmetics and many more.