TCN Investigation Report 3090

ACMA Investigation Report 3090 Advertisement for Clever Smoke - broadcast by TCN
Sydney on 16 August 2013

Investigation Report No. 3090

File No. ACMA2013/1358

Licensee TCN Channel Nine Pty Ltd

Station TCN Sydney

Type of Service Commercial Television

Name of Program Advertisement Clever Smoke

Date/s of Broadcast 16 August 2013

Relevant
Legislation/Code
Clause 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992
(Cth)

Date finalised 11 November 2013
Decision No breach of clause 7(1)(a) of Schedule 2 to the Broadcasting
Services Act 1992 (Cth)

Sydney on 16 August 2013 2
The complaint
On 16 August 2013, the Australian Communications and Media Authority (the ACMA)
received a complaint in relation to an advertisement for a product called Clever Smoke, an
electronic cigarette replacement product including a battery and evaporator which produces a
vapour that looks like smoke. The advertisement was broadcast on TCN Sydney by TCN
Channel Nine Pty (the licensee) on the same date.
The complainant submitted that the broadcast appeared to be... an advertisement for
tobacco.
Paragraph 7(1)(a) of Schedule 2 to the Broadcasting Services Act 1992 (Cth) (the BSA)
states that it is a condition of a commercial television broadcasting licence that the licensee
will not, in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth) (the TAP Act),
broadcast a tobacco advertisement within the meaning of that Act.
The advertisement
The advertisement was broadcast in the format of an infomercial on the program Mornings, a
light entertainment program featuring interviews, news and celebrity gossip broadcast from
9:00am to 11:00am on weekdays. It featured a presenter and a Clever Smoke representative,
who discussed the product and outlined a special offer for it and its various accessories that
could be accessed by customers by calling a specified telephone number.
The representative made the following statements during the advertisement:
Clever Smoke looks, feels and even tastes like a normal cigarette, but [has] none of
the health risks;
Clever Smoke is nicotine-free;
Independent testing proves Clever Smoke contains no tar, no nicotine, no heavy
metals, in fact not one of the thousands of toxic substances found in tobacco; and
Your friends, family and co-workers dont have to worry about their health when you
light up, because theres no risk of passive smoking; and
Switching to the product would save the average smoker $7,000 per year.
The advertisement included the following visual material:
The presenter and the representative discussing the product in the licensees studio;
Images of the product and its accessories;
Images of a person smoking tobacco cigarettes and coughing
Images of a person who was short of breath;
Repeated images of a person seemingly repulsed by a smokers unpleasant odours;
Footage of people storing/charging their Clever Smoke e-cigarettes;
A brief image of a lit tobacco cigarette in a smokers hand;
A brief image of the screen split into two halves; one half with an ashtray full of
smouldering standard cigarette butts and one half with an ashtray containing just one
Clever Smoke e-cigarette; and
Close up image of a cigarette paper being rolled with tobacco.
The duration of the advertisement was four minutes, a transcript of which is at Attachment A.
Assessment
This investigation is based on submissions from the complainant and the licensee and a copy
of the broadcast provided to the ACMA by the licensee. Other sources used have been
identified where relevant.
Ordinary, reasonable viewer test
In assessing content against the Codes, the ACMA considers the meaning conveyed by the
relevant material. This is assessed according to the understanding of an ordinary,
reasonable viewer.
Australian Courts have considered an ordinary, reasonable reader (or listener or viewer) to
be:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of
mind, nor avid for scandal. That person does not live in an ivory tower, but can and does
read between the lines in the light of that persons general knowledge and experience of
worldly affairs.
1

In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning
of the language, context, tenor, tone, and any inferences that may be drawn. In the case of
factual material which is presented, the ACMA will also consider relevant omissions (if any).
Once the ACMA has ascertained the meaning conveyed, it then determines whether the
Code has been breached.
Issue: Did the licensee broadcast a tobacco advertisement?
Relevant legislation
Clause 7(1)(a) of the BSA reads as follows:
7. Conditions of commercial television broadcasting licences
(1) Each commercial television broadcasting licence is subject to the following conditions:
(a) the licensee will not, in contravention of the Tobacco Advertising Prohibition Act
1992 , broadcast a tobacco advertisement within the meaning of that Act.
A tobacco advertisement is defined in s.9 of the TAP Act as follows:
9. Meaning of tobacco advertisement
Basic meaning
(1) Subject to this section, for the purposes of this Act, a tobacco advertisement is any
writing, still or moving picture, sign, symbol or other visual image, or any audible message, or
any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is
intended to promote:
(a) smoking; or
(b) the purchase or use of a tobacco product or a range of tobacco products; or

1
Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164167
(c) the whole or a part of a trade mark that is registered under the Trade Marks Act
1955 in respect of goods that are or include tobacco products; or
(d) the whole or a part of a design that is registered under the Designs Act 2003 in
relation to products that are or include tobacco products; or
(e) the whole or a part of the name of a person:
(i) who is a manufacturer of tobacco products; and
(ii) whose name appears on, or on the packaging of, some or all of those
products; or
(f) any other words (for example the whole or a part of a brand name) or designs,
or combination of words and designs, that are closely associated with a
tobacco product or a range of tobacco products (whether also closely
associated with other kinds of products).
Other relevant definitions (from s.8 of the TAP Act) include the following:
8. Defined terms
"smoking" means smoking tobacco products.
"tobacco product" means:
(a) tobacco (in any form); or
(b) any product (for example a cigar or cigarette):
(i) that contains tobacco as its main or a substantial ingredient; and
(ii) that is designed or intended for human consumption or use; and
(iii) that is not included in the Australian Register of Therapeutic Goods
maintained under the Therapeutic Goods Act 1989 ; or
(c) a cigarette paper, cigarette roller or pipe.
Relevantly, s.14 of the TAP Act should also be noted:
14. Accidental or incidental broadcast permitted
A person may broadcast a tobacco advertisement if:
(a) the person broadcasts the advertisement as an accidental or incidental
accompaniment to the broadcasting of other matter; and
(b) the person does not receive any direct or indirect benefit (whether financial or
not) for broadcasting the advertisement (in addition to any direct or indirect
benefit that the person receives for broadcasting the other matter).
Complainants submissions
The complainant submitted the following to the ACMA on 16 August 2013:
I am writing to make a direct complaint to ACMA about what appeared to be, in my
opinion, an advertisement for tobacco through the advertisement of a tobacco smokers
accessory, a tobacco filter.
[...]
The amount of time spent in the advertisement talking about smoking, even if the
advertisement included references to the well-publicised risks to health of smoking
tobacco, and included a neat comparison of the relative health of 60year-old smokers
and non-smokers, and was for a smoking accessory, seemed to me to be an
advertisement for tobacco because it was advertising a product intended to be used
with tobacco, and by tobacco smokers, and made repeated references to smoking.
I wondered if advertising a tobacco accessory is analogous to tobacco packaging.
Licensees submissions
Extracts from the licensees submissions can be found at Attachment B.
Finding
The licensee did not breach its licence condition at Clause 7(1)(a) of Schedule 2 to the
Broadcasting Services Act 1992 (Cth).
Reasons
The ACMA considers that Clever Smoke is not a tobacco product for the purposes of s.8 of
the TAP Act. The advertisement makes it clear that the e-cigarette does not contain tobacco
and states that it is nicotine-free. The ACMA accepts the licensees submission that Clever
Smoke does not contain nicotine or tobacco.
Given that Clever Smoke does not contain tobacco, the ACMA considers that it does not fall
within the definition of a tobacco product at s.8 of the TAP Act (extracted above), in that it
does not [contain] tobacco as its main or a substantial ingredient.
However, section 9 of the TAP Act defines a tobacco advertisement as any writing, still or
moving picture, sign, symbol or other visual image, or any audible message, or any
combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is
intended to promote, among other things, smoking and the use of a tobacco product.
The ACMA notes that in addition to the e-cigarette, the advertisement included images of
tobacco, tobacco products and depictions of people smoking tobacco cigarettes. These
limited portions of the advertisement could fall within the definition of a tobacco
advertisement at section 9 of the TAP Act as they gave publicity to, or increased public notice
of, smoking and tobacco products.
Section 14 - incidental or accidental accompaniment
The ACMA considers, that any material that could be considered as a tobacco advertisement
in the broadcast material was permitted under s.14 of the TAP Act, as it was an incidental
accompaniment to the broadcast of other matter, namely the advertisement for Clever
Smoke, a non-tobacco product.
Incidental has been interpreted in the context of s.14(a) of the TAP Act as happening... in
fortuitous or subordinate conjunction with other matter.
2

The ACMA considers that the other matter in this instance was the advertisement for Clever
Smoke. The thrust of the advertisement was the promotion of that product.
Any images that had the effect of giving publicity to smoking and tobacco products did not
dominate the advertisement at the expense of the central message conveyed by it. They were

2
Rothmans of Pall Mall (Australia) Ltd v Australian Broadcasting Tribunal (1985) 58 ALR 675; Director
of Public Prosecutions V United Telecasters Sydney Limited (1989) 168 CLR 594
fleeting and not a substantial component of the advertisement, and therefore happened in
subordinate conjunction with the other matter.
The ACMA has not been provided with any evidence indicating that the licensee received any
direct or indirect benefit for the broadcast of the advertisement, in addition to that received for
Clever Smoke see s.14(b).
Accordingly the licensee did not contravene the TAP Act, and therefore did not breach its
licence condition at Clause 7(1)(a) of Schedule 2 to the BSA.

Attachment A
Transcript of the Advertisement
Presenter Are you a smoker, or is someone you love a smoker? Well, [D] is here to show
you a fantastic device that could save you $7,000. Good morning, [D].
Clever Smoke representative Good morning, [Y]. 7,000? Its a lot, isnt it? And this
morning, Ill show you how you can save all this in just a year. Smoking is the leading cause
of preventable death in the western world, killing nearly 5 million people every year. In this
country, life expectancy is over 79 but the average smoker dies at 65, nearly 15 years sooner.
Presenter Wow, 15 years! I had no idea it was that much, its awful, isnt it.
Clever Smoke representative It is, but Ive got great news. Because now theres a
solution; a nicotine-free alternative. This is Clever Smoke. Its an electronic cigarette, that
looks, feels and even tastes like a normal cigarette, but its got none of the health risks.
Presenter Wow, none of the health risks?
Clever Smoke representative Thats right, none. Clever Smoke is designed and
engineered in Germany to the highest quality standards. And independent testing proves
Clever Smoke contains no tar, no nicotine, no heavy metals, in fact not one of the thousands
of toxic substances found in tobacco.
Presenter This sounds a lot safer than regular smoking.
Clever Smoke representative And its not just healthier for you, because theres no
lighters or flames, theres no risk of scorch marks, no smouldering cigarette butts, and best of
all, your friends, family and co-workers dont have to worry about their health when you light
up, because theres no risk of passive smoking.
Presenter Great.
Clever Smoke representative Remember: smokers die nearly 15 years before non-
smokers. Every single tobacco cigarette can take 29 minutes off your life, and if youre 60 and
a smoker, youre 83% more likely to die this year than a 60-year-old non-smoker. So Clever
Smoke can help save your own life.
Presenter And apparently save you a small fortune as well?
Clever Smoke representative It certainly can. If youre an average smoker this year, you
will spend well over $7,000 on cigarettes. And dont forget the government has decided the
price of cigarettes is guaranteed to keep going up every year.
Presenter So whatever youre spending now on cigarettes, its just going to get worse, isnt
it?
Clever Smoke representative Unless you make the switch right now to Clever Smoke.
And another great advantage of Clever Smoke is you can use it wherever you like.
Presenter So no more being kicked out in the cold because of your habit; this sounds like a
much better option than smoking cigarettes. So tell us, what offer have you got for us today?
Clever Smoke representative Its a great offer. How would you like an extra $7,000 a year,
cold hard cash in your pocket?
Presenter Yes please.
Clever Smoke representative Well, you can start saving it right now. Because today weve
worked out a very special offer for the viewers. Call right now on 1800, 997 997 and you can
try Clever Smoke on a 30 day risk-free trial, for a trial price of only $9.90. You get the full
Clever Smoke kit, which includes a long-lasting rechargeable lithium polymer battery, a wall
charger and five tobacco flavour cartridges that last you the equivalent of 60 cigarettes, all
stowed in this slim, stylish case. But wait: call right now and well give you five extra cartridges
of authentic menthol flavour, five of sweet vanilla and five freshly-roasted coffee flavour, and
five more refreshing apple. Thats a total of 25 cartridges, the equivalent of over 300
cigarettes, absolutely free.
Presenter Wow, and that number is 1800 997 997.
Clever Smoke representative But wait, theres more: youll never need to go without your
Clever Smoke, because theres a handy USB adaptor, and well give you this car charger
absolutely free. Thats right, in this special, TV-only offer, you get the entire Clever Smoke kit,
with a handy USB adaptor. Plus, well give you 25 extra flavour cartridges and the car charger
absolutely free. And you get to try everything you see here in a 30 day, risk-free trial, for a trial
price of only $9.90. But you must call right now, on 1800 997 977. And if youre not happy for
any reason, simply return everything within the trial period for a full refund of your trial price,
no questions asked. Call 1800 997 997. This offer is not available in stores, so call now.
Presenter Thats right. Call on 1800 997 997.
Attachment B
Licensees submissions
The licensee submitted the following to the ACMA on 9 September 2013:
Nine believes the product featured in this advertorial complied with the [BSA] as the
product complied with all relevant laws and regulations as warranted by the client to
Nine and contained no tobacco or nicotine.
[...]
Nines compliance with the TAP Act
The product was supplied to Nine from client, [company name], who warranted to nine
that this product complied with all laws, regulations and codes in Australia and Nine
reasonably relied in good faith on the warranties provided by client as part of a
contractual agreement. The client warranted to Nine that the product does not contain
nicotine or tobacco and therefore the product does not fall within the definition of
tobacco product and therefore the advertisement is [not] a tobacco advertisement
under the TAP Act.
Attached... is a statement from the Brand Developers confirming this product does not
contain tobacco which Nine reasonably relied on when broadcasting this product.
The warranties contained in the advertorial agreement state:
Client warrants, represents and undertakes to Nine that the Advertorials and
Material do and will comply with all laws, statutes, regulations, codes of
practice and any standards determined by any relevant regulatory agency or
industry self-regulating body applicable to free-to-air commercial broadcast
and/or infomercials or advertorials (sic).
The definition of tobacco product under clause 8(b)(i) of the TAP Act states: any
product that contains tobacco as its main or substantial ingredient which as discussed
above the client has warranted to Nine the product does not contain tobacco and
therefore as the first element of Clause 8(b)(i) is not satisfied. Thus, the other elements
under Clause 8(b)(ii-iii) are not applicable as the definition of tobacco product under
Clause 8(b)(i-iii) are collective elements that all must be met to meet the definition.
Also, the product is not currently included in the Register of Therapeutic Goods
pursuant to the Therapeutic Goods Act 1989 as warranted by the client to Nine that the
product does not fall within this Act. Therefore, the product does not satisfy the
elements for the definition for the definition of tobacco product under Clause 8(b).
As the product does not satisfy the definition in Clause 8 it follows that it does not
breach the elements in Clause 9 for the Product to constitute a tobacco advertisement.
Clause 9(1)(a) of the TAP Act lists smoking as the first element in deciphering a tobacco
advertisement. Clause 8 of the TAP Act defines smoking as means smoking tobacco
product. This product does not promote smoking as it does not contain tobacco to be
smoking tobacco product and therefore the product is not smoking under Clause
9(1)(a).
Clause 9(1)(b) of the TAP Act states the purchase or use of a tobacco product or range
of tobacco products. The TAP Act defines a tobacco product under Clause 8(a) as
tobacco in any form which as mentioned above based on the warranties provided to
Nine from the client, this product does not contain tobacco and therefore this product is
not considered to be a tobacco product under the TAP Act.
The other elements of the TAP Act under clause 9(1)(c-f) are irrelevant in this instance
as the product does not satisfy the definition of tobacco product and therefore does not
meet these requirements.
The complaint states this is an advertisement for tobacco however as the product
featured in the advertorial does not meet the required elements to constitute a tobacco
advertisement under the TAP Act, Nine believes it has complied with the Act. If the
ACMA wishes to discuss further information regarding the product Nine believes it is
appropriate to contact Brand Developers.

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ACMA Investigation Report 3090 Advertisement for Clever Smoke - broadcast by TCN

Sydney on 16 August 2013

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