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How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
Harmful and offensive advertising is mainly self-regulated in Australia. The Australian Association of National Advertisers (AANA) publishes the AANA Code of Ethics 2021 (AANA Code of Ethics), administrated by Ad Standards (both industry funded) which dictates, amongst other things, that:
- advertising shall not portray people or depict material in a way which discriminates against or vilifies a person or section of the community on account of race, ethnicity, nationality, gender, age, sexual orientation, religion, disability, mental illness or political belief;
- advertising shall only use language which is appropriate in the circumstances (including appropriate for the relevant audience and medium). Strong or obscene language shall be avoided; and
- advertising shall not depict material contrary to Prevailing Community Standards on health and safety.
Ad Standards resolves community and competitor complaints and arranges for offensive advertising to be removed. Other legal action may also be available to an aggrieved individual or entity, depending on the advertisement in question.
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How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
The Competition and Consumer Act 2010 (Cth) (CCA) regulates misleading and deceptive conduct and unfair practices in Australia, including in relation to advertising. Schedule 2 of the CCA contains the Australia Consumer Law (ACL) which includes a general prohibition on engaging in conduct that is misleading, deceptive, or likely to mislead or deceive. Determining whether advertising is misleading or deceptive involves an assessment of the audience for the advertisement, the overall message it conveys and whether it is true or false. The ACL also contains a number of specific protections targeted at unfair practices which are relevant to the advertising of goods or services, including prohibitions on:
• false or misleading representations in relation to the standard, quality or composition
• false or misleading representations that purport to be a testimonial
• false or misleading representations in relation to sponsorship, approval, uses or benefits
• false or misleading representations in relation to price
• offering a rebate, gift, prize or other free inducement without the intention of providing it
• conduct that may mislead as to the nature, manufacturing process or characteristics of the good or service.
The AANA Code of Ethics also requires that advertising not be misleading or deceptive.
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Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
a. Alcohol
The Alcohol Beverages Advertising Code (ABAC Code) governs alcohol advertising in Australia. The ABAC Code covers various aspects of alcohol advertising, including content, placement, and targeting. It provides specific guidelines on avoiding marketing that promotes excessive consumption, appeals to minors, or associates alcohol with activities requiring a high degree of physical coordination or skill.
b. Tobacco and related products, such as vapes and nicotine pouches
The advertising of tobacco products is heavily regulated. The Tobacco Advertising Prohibition Act 1992 (Cth) prohibits the advertising and promotion of tobacco products, including cigarettes, cigars, and loose tobacco, in Australia. The law prohibits advertising in all forms of media, including television, radio, print publications, and online platforms.
The Therapeutic Goods Administration (TGA) regulates the advertising and promotion of nicotine-containing e-cigarettes and nicotine replacement therapies in Australia. The advertising of these products is subject to strict guidelines to ensure they are not misleading, do not appeal to minors, and do not make therapeutic claims without proper authorisation.
c. Medicines, medical devices and surgical or medical procedures
The Therapeutic Goods Act 1989 (Cth) (TG Act) regulates the advertising of therapeutic goods, including medicines and medical devices, in Australia. This Act aims to ensure that advertising is accurate, balanced, and does not mislead consumers. It also prohibits the advertising of prescription-only medicines to the general public.
Additionally, the Therapeutic Goods Advertising Code (TGA Code) sets out specific guidelines for the advertising of therapeutic goods in Australia, including requirements regarding the content, presentation, and manner of advertising. The TGA Code prohibits misleading or deceptive claims, exaggeration of therapeutic benefits, and inappropriate use of testimonials.
Finally, the Australian Health Practitioner Regulation Agency (AHPRA) develops guidelines that govern the advertising of health services by registered health practitioners in Australia, including surgical or medical procedures. These guidelines set standards for ethical advertising, including requirements for accuracy, verifiability, and not exploiting vulnerable individuals.
d. High fat, salt and sugar foods
Several regulations aim to promote healthy eating habits and reduce the impact of unhealthy food marketing
In particular, the AANA Food and Beverages Advertising Code sets out specific standards for advertising and marketing communications related to food and beverages. Additionally, the AANA Children’s Advertising Code provides that advertising to children for food or beverages must neither encourage nor promote an inactive lifestyle or unhealthy eating or drinking habits.
e. Gaming and gambling services
The Interactive Gambling Act 2001 (Cth) is the primary legislation that regulates online gambling services in Australia. It prohibits the provision and advertising of certain types of online gambling services to Australian residents, including online casino games and poker. Advertising or offering these services to Australians is illegal, unless they are specifically authorised under state or territory laws.
Additionally, the BSA regulates gambling advertising on television and radio. It sets restrictions on the timing and content of gambling advertisements, particularly during specified prohibited periods when children are likely to be watching or listening.
The AANA Wagering Advertising Code also places restrictions on the content of gambling advertising (including, for instance, that the advertising must not encourage gambling as a means of relieving financial or personal difficulties).
In addition to federal regulations, individual states and territories in Australia may have their own specific rules regarding the advertising of gaming and gambling services. These regulations vary, but they generally align with the federal restrictions and aim to protect consumers from gambling-related harm.
f. Adult and sex-related services
Australia has a classification system for adult content that determines what can be advertised and how it should be classified. Content classified as X18+ (explicit adult content) or RC (refused classification) is prohibited from being advertised.
The Broadcasting Services Act 1992 (Cth) (BSA) regulates the advertising of adult content on television and radio. It sets restrictions on the timing and content of adult advertisements, particularly during specified prohibited periods when children are likely to be watching or listening.
In addition to federal regulations, individual states and territories in Australia may have their own specific rules regarding the advertising of adult and sex-related services. These regulations can vary, but they generally align with the federal restrictions and may include additional requirements, such as licensing or permits for operating adult services.
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Do any specific rules apply to advertising featuring prices?
Yes, these rules are intended to ensure that price advertising is transparent, accurate, and does not mislead consumers. The key regulation governing price advertising in Australia is the ACL, which sets out general rules for advertising, including price advertising. Under the ACL, advertisements must not contain false, misleading, or deceptive representations, including in relation to prices. Advertisers are required to provide clear and accurate information about the total price of goods or services, including any additional charges or fees that may apply.
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Do any specific rules apply to the use of testimonials and endorsements in advertising?
Express prohibitions against making false or misleading testimonials are set out in section 29(f) of the ACL. More generally, such conduct is covered by section 18 of the ACL which prohibits misleading and deceptive conduct. The AANA Code of Ethics and other industry-specific codes and rules also prohibit such conduct.
Reviews should be independent and reflect the genuine opinion of the person who experienced the product or service. Businesses must not create fake or misleading reviews or arrange for others to do so. This includes incentivising customers to post positive reviews or ratings. By doing so, the review may not be independent and able to be relied upon by others because they may not know a customer had been incentivised to write the review.
Endorsements are generally also regulated by section 18 of the ACL but more specifically section 29(h) of the ACL provides a prohibition against making false or misleading representations that the person making the representation has a sponsorship, approval or affiliation.
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Do any specific rules apply to environmental or “green” advertising claims?
The AANA Code of Ethics states that ‘advertising shall not exploit community concerns in relation to protecting the environment by presenting or portraying distinctions in products or services advertised in a misleading way or in a way which implies a benefit to the environment which the product or services do not have.’
In addition, Australia’s consumer protection and corporate regulators – the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC) – have broad powers in respect of false or misleading advertising relating to environmental claims. This includes under the ACL, in particular section 18 (which prohibits engaging in misleading or deceptive conduct in trade or commerce) and section 29 (which prohibits a person from making false or misleading representations about goods or services). In relation to financial products and services, the Corporations Act 2001 (Corporations Act) and the Australian Securities and Investments Commission Act 2001 (ASIC Act) contain general prohibitions against a person making statements (or disseminating information) that are false or misleading, or engaging in dishonest, misleading or deceptive conduct (for example, sections 1041E, 1041G and 1041H of the Corporations Act, and sections 12DA and 12DB of the ASIC Act).
In July 2023, the ACCC produced a draft guidance document titled ‘Environmental and sustainability claims’, which outlines the obligations of businesses in making such claims.
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What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
There are rules and guidelines that apply to the identification of advertising content to ensure transparency and prevent the misleading blending of advertising with editorial content. The aim is to ensure that consumers can easily distinguish between advertising and editorial content, allowing them to make informed decisions. The key regulations and industry codes that govern the identification of advertising content, including distinguishing advertorial from editorial, include:
The AANA Code of Ethics, which requires advertisements to be clearly distinguishable and not misleading or deceptive. Advertisements presented in a format that resembles editorial content, such as advertorials, should be clearly labelled or identified as advertising to avoid confusion.
Commercial Television Industry Code of Practice and the Broadcasting Services (Australian Content and Children’s Television) Standards, both of which are administered by the Australian Communications and Media Authority (ACMA), set out the obligations and responsibilities of commercial television broadcasters in Australia, including guidelines for the separation of advertising material from program content. Broadcasters are expected to identify and clearly separate advertising material from editorial or program content to ensure viewers can differentiate between the two.
Australian Press Council (APC) Statement of Principles, which sets standards for print and online media, requires publishers to distinguish clearly between editorial and sponsored content. Advertisements that mimic editorial content, including advertorials, should be appropriately identified as advertising to prevent reader confusion.
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How is influencer/brand ambassador advertising regulated?
Several key laws and guidelines regulate influencer and brand ambassador advertising to ensure transparency and prevent misleading practices. The regulations focus on disclosure requirements and the avoidance of deceptive advertising. The main rules and guidelines that govern influencer and brand ambassador advertising in Australia include:
The ACL, which prohibits false, misleading, or deceptive conduct in advertising. This applies to influencer and brand ambassador advertising. Influencers and brand ambassadors must not make false claims, omit important information, or engage in practices that may mislead consumers.
The AANA Code of Ethics, which sets out general principles for advertising across various industries. It requires advertisers, including influencers and brand ambassadors, to be honest, transparent, and not engage in misleading or deceptive conduct. The Code also requires that advertising be clearly distinguishable as such.
The Australian Influencer Marketing Council (AIMCO) Guidelines, developed by AIMCO, an industry body, are a set of voluntary guidelines that provide best practices and recommendations for influencers, brands, and agencies, covering areas such as disclosure, transparency, and audience trust.
Advertising disclosure on social media platforms. Social media platforms like Instagram and YouTube have their own guidelines and policies regarding advertising disclosure. These platforms often require influencers and brand ambassadors to clearly disclose their commercial relationships with brands using appropriate hashtags or labels, such as #ad, #sponsored, or #partner.
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Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
There are some restrictions on particular advertising methods in Australia. In addition to ACL prohibitions on any method of advertising that is false, misleading or deceptive, the ACL contains restrictions on:
- Bait advertising, which is the practice of advertising products at low prices to attract customers. The ACL prohibits advertising goods or services at a particular price if there are reasonable grounds to expect the product will not be supplied at that price for a reasonable period and in reasonable quantities.
- Referral selling, which is the practice of inducing purchase on the basis the consumer will receive a rebate or commission in exchange for facilitating supply to other people.
Major events legislation like the Major Sporting Events (Indicia And Images) Protection Act 2014 (Cth) restrict ambush marketing (the practice where advertisers leverage the goodwill associated with major events without being official sponsors) by prohibiting unauthorised commercial use of certain protected indicia and images related to the event. The AANA Code of Ethics prohibits advertising targeted at children from being placed into media that contains proximate content that is unsuitable for children, and restricts the use of celebrity endorsements. Additional restrictions may apply to the advertising of specific products, such as therapeutic goods or financial products.
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Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
Yes, different rules and regulations can apply to different advertising media. The regulatory framework takes into account the specific characteristics and reach of various advertising platforms. In addition to the ACL, which applies to all forms of advertising, including online, and prohibits misleading or deceptive conduct, there are the following additional considerations depending on the medium:
Broadcast Media: Television and radio advertising are regulated by the ACMA. The BSA sets out rules regarding the content, timing, and identification of advertisements on broadcast media. There are specific requirements for labelling and separating advertising material from editorial or program content.
Online and Digital Media: Digital advertising platforms may have their own policies and guidelines regarding disclosure, transparency, and advertising content.
Print Media: Print advertising, such as newspapers and magazines, is subject to the ACL and the guidelines of the APC. The APC’s Statement of Principles sets standards for distinguishing between advertising and editorial content, ensuring that advertisements are clearly labelled and identified.
Outdoor Advertising: Outdoor advertising, including billboards and signage, is regulated by local councils and state/territory regulations. There are rules regarding the content, size, location, and safety of outdoor advertisements, which can vary depending on the jurisdiction.
Direct Marketing: Specific rules exist for telemarketing, including the Do Not Call Register Act 2006 (Cth), which allows individuals to opt out of receiving unsolicited telemarketing calls.
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Are there specific rules for direct marketing such as email, SMS and direct mail?
The Spam Act 2003 (Cth) (Spam Act) regulates the use of marketing emails and other electronic communications such as SMS. The Spam Act requires that marketing communications are only sent to recipients who have consented to receive them, identify the sender, contain the sender’s contact information and provide an easy mechanism for the recipient to unsubscribe (i.e. does not require payment or additional information and is effective within 30 days). Consent may be express or inferred (such as where it is reasonable to believe the recipient would expect to receive such marketing).
Additional regulations arise under:
- The Privacy Act 1988 (Cth), which prohibits regulated entities from using or disclosing personal information for direct marketing purposes (Australian Privacy Principle 7). There are certain exceptions, such as where the individual would reasonably expect their information to be used for that purpose and the entity provides a simply means by which the individual can opt out.
- The Do Not Call Register Act 2006 (Cth), which imposes restrictions on voice telemarketing, which requires consent and limits the times at which calls may be made.
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Is advertising to children and young people restricted beyond general law and regulation? If so, how?
Yes, advertising to children and young people is subject to additional restrictions beyond general laws and regulations in Australia. The aim is to protect children from potentially harmful or misleading advertising and to promote responsible advertising practices. The key restrictions on advertising to children and young people in Australia include:
Children’s Television Standards: The ACMA has specific guidelines and restrictions on advertising during children’s television programming. These standards limit the duration and frequency of advertisements, restrict the content of ads suitable for children, and prohibit certain types of advertisements, such as those promoting unhealthy food or gambling.
AANA Code of Ethics: The Code requires advertisers to exercise a special duty of care when advertising to children, ensuring that advertisements do not exploit children’s imagination, trust, or lack of experience. The Code also discourages advertisements that encourage children to purchase products by exploiting their credulity or lack of knowledge.
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How is comparative advertising regulated?
The ACL regulates comparative advertising under its false, misleading and deceptive conduct provisions. Advertisers must ensure that any comparative product claims are accurate, specific, are not likely to mislead and can be substantiated (particularly where specific or of a technical or scientific nature). To avoid being misleading when engaging in comparative price advertising, it is important that:
- when comparing a previous and current price, the relevant product must have been available at the previous price for a reasonable period and in reasonable quantities
- when comparing against a competitor’s prices, the products are comparable
- the comparison is current and remains accurate throughout the campaign.
The AANA Code of Ethics also requires that advertising must not contain representations which are likely to cause damage to the business or goodwill of a competitor.
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Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
Consumer promotions are regulated under the ACL, including section 18, in respect of misleading and deceptive conduct and other more specific provisions. A business must be able to substantiate any claims it makes in a consumer promotion and the ACCC has powers to issue substantiation notices, infringement notices or take further action in relation to such claims.
Special rules apply to cash back offers, gifts and prizes, customer loyalty schemes, and gift cards and discount vouchers. For example:
- cash back offers must clearly articulate the conditions and limitations;
- businesses must not offer a free gift without telling consumers that they must pay for the delivery of the gift; and
- businesses must not tell consumers that if they buy certain goods they will win a prize when all they actually receive is the chance of winning the prize.
The ACCC is also particularly focused on regulating online promotional techniques such as online product and service reviews and social media advertising.
Other rules, such as those contained in the AANA Code of Ethics, also regulate consumer promotions as advertising.
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Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
Most Australian states and territories have specific regulations that apply to promotional prize draws and skill competitions. Some states mandate that businesses running promotions that involve an element of chance, in particular, obtain a permit and are licensed (or require a permit if the total prize pool is over a certain value). Other states, such as Victoria, do not require that permits are obtained for games of chance or skill.
Businesses that want to run a trade promotion should always clearly advertise the terms of the competition (including eligibility criteria and closing dates) and consider which state and territory residents will be eligible to enter the competition to determine what regulations might apply to running the promotion.
Trade promotion lotteries conducted otherwise than in accordance with the applicable regulations can be unlawful. Relevant legislation provides that such illegal lotteries is an offence and will be met with penalty units.
Other forms of offerings that are not connected to the promotion of a business’ goods and services – for example online lotteries sites or gambling sites – are heavily regulated and controlled in Australia, principally by the ACMA.
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Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
The requirement to register promotional prize competitions with a state agency or authority depends on the state or territory in which the competition is being conducted, and whether the competition is a game of chance or skill. A game of skill is where the outcome is primarily determined by the player’s skill, knowledge or strategy rather than by chance or luck. Below is a general overview of the registration requirements and timeframes for games of chance in Australia:
New South Wales: Promotional prize competitions with a total prize value exceeding AU$10,000 require a gaming authority from NSW Government’s Fair Trading. The application process involves submitting an application form, providing details of the nominated contact person, and paying a registration fee. Application processing times vary, but typically take several weeks. In NSW, the cost of the authority increases with the duration of the authority. An authority can be obtained for up to 5 years. After an authority has been obtained, you must notify Fair Trading of each trade promotion with a prize pool of over AU$10,000 to be conducted, at least 10 days before each trade promotion begins. A copy of the competition rules must be provided as part of this notification.
Australian Capital Territory: If the prize is over AU$3,000, you will be required to obtain a permit from the ACT Government’s Gambling and Racing Commission. Once approved, a trade promotion permit will be issued. This process generally takes around 3-5 business days. The registration fee is determined by the total prize value.
South Australia: You need to apply for a major trade promotion licence if your promotion has a total prize of over AU$5,000. The application processing times typically take 14 days to be assessed from when it’s received by South Australia’s Consumer Business Services. The registration fee is determined by the total prize value.
Northern Territory: A permit will be required if the prize value exceeds AU$5,000. For a minor lottery, where the prize is between AU$5,001 and AU$20,000, a permit will be required and the lottery must also be run by an approved association. The approval process generally takes up to 10 days. If you’re an interstate business or association that has a permit in another state or territory, you can also run the competition in the Northern Territory without a local permit.
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What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
Advertisements may incorporate different types of intellectual property (IP). If any advertisement features IP belonging to a third party without their permission, additional enforcement rights may be available to them under IP legislation. Common examples of IP used in advertising include:
Trade marks – trade marks can be registered under the Trade Marks Act 1995 (Cth) (TM Act) and once registered, grant their owner certain exclusive rights to its use. If a registered trade mark is infringed, say by the use of the same or similar mark in an advertisement without permission, the trade mark owner may seek relief in the form of injunction, damages or account of profits under the TM Act. Criminal offences and financial penalties may also apply.
Copyright – the Copyright Act 1968 (Cth) (CA) confers certain exclusive rights on the creators of certain literary, dramatic, musical and artistic works. If copyright is infringed, say by the reproduction or communication of copyrighted material in an advertisement without permission, the copyright owner may seek relief in the form of an injunction, damages or account of profits. Criminal offences and financial penalties may also apply under the CA.
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What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
Generally, an offer made in an advertisement is considered an “invitation to treat” and is distinguishable from an offer to contract.
A contract requires certain elements to be satisfied, including that an agreement is formed through making and accepting an offer. The offer must be specific, complete, capable of acceptance and made with the intention of the offeror being bound by the acceptance.
By contrast, an offer in an advertisement is likely to be an invitation to treat, without any intention to be bound at that particular time. A vendor may make an offer to encourage customers to purchase, but may also choose not to sell (for example, when they run out of stock). Determining whether conduct amounts to an offer will be determined on a case-by-case basis, and assessing whether a reasonable person in the position of the offeree would think an offer was intended and that a binding agreement would be made upon acceptance.
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What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
Whilst there is an implied right to freedom of political communication found in the Commonwealth Constitution, a general right to freedom of expression does not exist in Australia. The constitutional right is also not an individual right, but a restriction on legislative power. Accordingly, it should not be relied upon as a source of protection for advertisers.
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How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]
The ACCC is the federal regulator for the ACL and has a role in ensuring compliance from advertisers. The ACCC employs various compliance and enforcement mechanisms including administrative resolutions, infringement notices, enforceable undertakings, and legal action in the courts. Such legal action may result in penalties ranging from pecuniary penalties to imprisonment.
Current pecuniary penalties applying to a body corporate for infringement of section 18 of the ACL, for example, are the greater of $50 million or three times the value derived from the relevant breach, or, if the value derived from the breach cannot be determined, 30 per cent of the company’s adjusted turnover during the period it engaged in the conduct.
Australia: Advertising & Marketing
This country-specific Q&A provides an overview of Advertising & Marketing laws and regulations applicable in Australia.
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How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
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How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
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Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
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Do any specific rules apply to advertising featuring prices?
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Do any specific rules apply to the use of testimonials and endorsements in advertising?
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Do any specific rules apply to environmental or “green” advertising claims?
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What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
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How is influencer/brand ambassador advertising regulated?
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Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
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Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
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Are there specific rules for direct marketing such as email, SMS and direct mail?
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Is advertising to children and young people restricted beyond general law and regulation? If so, how?
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How is comparative advertising regulated?
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Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
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Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
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Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
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What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
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What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
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What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
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How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]