The legal and regulatory framework governing advertising and marketing in Australia is a mix of legislation and industry self-regulation. Competitors and consumers can bring claims against advertisers in a number of ways.

The most important legislation is the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010. In particular, the ACL prohibits conduct in trade or commerce, including advertising and marketing, that is misleading, deceptive or likely to mislead or deceive. This legislative provision is central to regulating advertising and marketing practices in Australia. The regulator responsible for enforcing the ACL is the Australian Competition and Consumer Commission which is active and well-resourced.

In addition to the ACL, there is specific legislation which applies to the advertising of particular types of goods and services, including therapeutic goods, gambling, and financial services, as well as legislation which applies to political advertising at the state and federal level.

The peak body of Australian advertising and marketing companies is the Australian Association of National Advertisers (AANA). The AANA operates and funds a self-regulation system through its sister organisation, Ad Standards. The Codes enforced by Ad Standards are the AANA Code of Ethics, the AANA Food and Beverages Advertising Code, the AANA Children’s Advertising Code, the AANA Environmental Claims Code, the AANA Wagering Advertising Code, and the Voluntary Code of Practice for Motor Vehicle Advertising.

Decisions by Ad Standards in response to consumer complaints about breaches of the Codes are made by its appointed Community Panel. Although it is a self-regulated system, the Australian advertising industry generally complies with the AANA advertising codes and the decisions made by Ad Standards.

Competitors may commence legal proceedings against each other for alleged breaches of the ACL. Ad Standards also operates a voluntary system for the adjudication of complaints by competitors, with decisions made by a panel of experienced advertising lawyers appointed by Ad Standards.

There is also an ABAC Responsible Alcohol Marketing Code (ABAC Code) which is administered by The ABAC Scheme Limited. The ABAC Code aims to reflect community expectations in respect of the advertising and marketing of alcoholic beverages and is subject to regular review.

The Australian Competition and Consumer Commission (ACCC), whose functions include enforcement of the Australian Consumer Law (ACL), is active and well-resourced. The ACCC has a wide range of investigative powers, but any decision to impose a financial penalty on an advertiser, or to issue an injunction to restrain unlawful advertising, can only be made by a court – usually the Federal Court of Australia and often as the result of an application by the ACCC.

The ACCC’s approach to enforcement of the ACL is to give priority to national conduct by large traders, recognising the potential for greater consumer detriment and the likelihood that conduct of large traders can influence other market participants. As a result, the advertising and marketing activities of large corporations and leading brands are likely to be subject to close scrutiny by the regulator.

Ad Standards, which enforces the advertising self-regulation system operated by the Australian Association of National Advertisers, is also active and well-resourced, as is The ABAC Scheme Limited which administers and enforces the ABAC Responsible Alcohol Marketing Code applicable to the advertising of alcoholic beverages.

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 Australian Consumer Law (ACL), which applies to all forms of advertising, including online, and prohibits misleading or deceptive conduct, there are additional considerations depending on the medium, for example:

• Broadcast media: Television and radio advertising are regulated by the Australian Communications and Media Authority. The Broadcasting Services Act 1992 (Cth) 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 Australian Press Council (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.
• Email marketing: 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, include the identity and contact information of the sender, 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 for the individual to opt out.

Pre-clearance or pre-approval of advertisements in Australia is generally not required. However, specific instances where pre-approval is required include:

1. Advertisements to be broadcast on free-to-air commercial television: Such advertisements in Australia must be pre-approved by Clear Ads, the organisation responsible for advertising approval and operated by the peak body of Australian commercial television broadcasters, Free TV Australia. Clear Ads will check that the advertisement is compliant with all applicable laws, regulations, and industry codes, including the Commercial Television Industry Code of Practice. Clear Ads charges a fee for pre-approving advertisements.
2. Alcohol advertising: The ABAC Scheme Limited, which administers the ABAC Responsible Alcohol Marketing Code, operates a pre-vetting service which is compulsory for signatories to the Scheme and may be used by other advertisers of alcoholic beverages on a voluntary basis. The ABAC Scheme Limited charges a fee for pre-vetting advertisements.
3. Therapeutic goods:  Advertisers must obtain approval from the Australian Government’s Therapeutic Goods Administration before referring to serious diseases, conditions, ailments or defects (called ‘restricted representations’) in consumer advertising for therapeutic goods.

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 Australian 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 the offer
• conduct that may mislead about 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.

Harmful and offensive advertising is mainly self-regulated in Australia. The AANA Code of Ethics (AANA Code of Ethics) published by the Australian Association of National Advertisers (AANA) and administrated by Ad Standards 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
• 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.

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 Australian Consumer Law (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.

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 published a draft guidance document titled ‘Environmental and sustainability claims’, which outlines the obligations of businesses in making such claims.

a. Alcohol

The ABAC Responsible Alcohol Marketing Code governs alcohol advertising in Australia and 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 Public Health (Tobacco and Other Products) Act 2023 (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 Broadcasting Services Act 1992 (Cth) (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 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.

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 Australian Communications and Media Authority 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.

See question 9(d) above.

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 Australian Consumer Law, 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.

Influencers do not need to have a licence, permit or other official permission to operate in Australia. However, their activities are subject to scrutiny and several regulator actions have been instigated that involve misleading influencer advertising.

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.

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.

In Australia, there is no ‘right of publicity’ as found in other jurisdictions. However, advertisers should be aware of the Australian Consumer Law, which prohibits advertising that implies an affiliation or endorsement in a misleading way and could result in similar image rights. Advertisers should also be aware of privacy laws, other prohibitions in relation to misleading and deceptive advertising and intellectual property rights more generally.

Yes, see question 6 (a).

The main impact has been the probable use of AI and technology by rights owners to identify and enforce intellectual property rights. We expect this to have further impact over the coming year or two as AI becomes more sophisticated in identifying potential infringements.

We are not aware of any documented cases of advertising regulators using AI in their regulatory activities in Australia. However, we would be surprised if they were not to some extent, especially in respect of legal research and programs to assist in day-to-day tasks that have AI components built in.

The Australian Competition and Consumer Commission’s (ACCC) annual Compliance and Enforcement Policy and Priorities offers a good indication of the main regulatory hot topics for the coming year.

Sustainability remains as a key focus area for the ACCC. In particular, the regulator continues to target ‘greenwashing’ – the act of conveying a false impression or misleading information about the environmental impact of goods or services – in advertising. For instance, in April 2024, the ACCC commenced action against Clorox Australia Pty Ltd, alleging that it misled customers into believing that a line of its products was created from a particular type of recycled materials. The ACCC found items in Clorox’s “50% Ocean Bound Plastic Recycled Bags” range were in fact collected inland. We expect to see more action from the ACCC in respect of greenwashing in the near future.

Another important topic relates to privacy and data protection. Partly in response to a number of large-scale data breaches in 2022, the Australian Government released a report in September 2023 on its review of the Privacy Act. The report includes 116 proposals aimed at enhancing the protection of personal information and the fairness of its handling by organisations. As these proposals move through a feedback process, it is important for advertisers to understand the potential changes and impact. The proposed changes will affect how personal data can be used in marketing and advertising.