Back in 2022, IAB published this summary guide of the key laws and regulations that advertising content needs to comply with. As there have been quite a few updates and reviews since that time, we thought it might be helpful to collate those updates and republish this guide. Updates highlighted below. Please note, the below list is not exhaustive, specific products may attract additional regulations. Always check-in with your legal teams for advice on which laws apply in specific scenarios.
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.
2. 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:
- AANA Code of Ethics – the key AANA self-regulatory code, which provides the overarching set of principles that all advertising and marking communications across all media should comply with.
- Food & Beverages Advertising Code – applies to advertising and marketing of food and beverage products in Australia.
- Children’s Advertising Code – applies to advertising and marketing to children in Australia.
- Environmental Claims Code - applies to the making of Environmental claims in advertising and marketing.
- Wagering Advertising Code - applies to advertising and marketing of wagering products in Australia.
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:
- ABAC Responsible Alcohol Marketing Code – administered by the ABAC Committee, sets out the key standards for the responsible content and placement of alcohol marketing in Australia.
- Voluntary Code of practice for motor vehicle advertising - administered by the Federal Chamber of Automotive Industries, provides guidance to advertisers in relation to appropriate standards for the portrayal of images, themes and messages relating to road safety.
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.
3. 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 times - Schedule 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
- Therapeutic Goods Act - all advertising of therapeutic goods is subject to the requirements of the Therapeutic Goods Act 1989 (the Act) and the Therapeutic Goods Regulations 1990 (the Regulations), and the Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021 (the Code). More information on the TGA website here, which is periodically updated.
Food Advertising
- Food standards Australia and New Zealand – all food businesses must comply with the Nutrition, Health and Related Claims Standard of the Australian New Zealand Food Standards Code when making nutrition content claims and health claims in advertisements, endorsements or on food labels. FSANZ provides a a helpful guide to the requirements of the code in plain English. Compliance with this code is enforced via State and Territory agencies, some further information here.
Health Services
- AHPRA Guidelines for advertising regulated health services – developed by the Australian Health Practitioner Regulation Agency (AHPRA) in partnership with the 15 national health practitioner boards, sets out the rules for advertising regulated health services in Australia.
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).