Tobacco and vaping ads on a shop screen

What counts as a tobacco advertisement

Section 20(1) of the Act, as compiled on 5 September 2025, defines it as “any form of communication, recommendation or action that promotes, or is likely to promote” smoking, or a regulated tobacco item or its use, “whether directly or indirectly”. It may use any means, “whether visual, aural or otherwise”, and it does not matter that the material promotes other things as well.

Section 20(4) presumes material promotes smoking, unless the contrary is proved, if it is or contains any of these four things:

• a trade mark registered for goods that are or include regulated tobacco items;
• a design registered for products that are or include regulated tobacco items;
• a trade mark, design, colour, logo, get-up or work “evocative of, or closely associated with” a registered trade mark or design used for regulated tobacco items;
• a prohibited term in relation to a tobacco product’s brand or variant name.

Under section 30(1), a person publishes an advertisement by using “any means of communication” to make it “available to, or accessible by, the public or a section of the public”.

Who is caught, and the penalties

Section 19 reaches a person who publishes the material, or authorises or causes it to be published. It has three penalty tiers, and the ACCC’s fines page records that a penalty unit rose from $330 to $364 on 1 July 2026.

Section 19(9) gives a defence to an individual who published the material on their own initiative, not in connection with making, importing, distributing or selling regulated tobacco items, and without any benefit from anyone for doing so.

Nine exceptions to what counts as an ad

Sections 21 to 29, the Act’s exceptions, list what is not, or is not of itself, a tobacco advertisement. All nine are here:

1. marks on a compliant regulated tobacco item or its retail packaging (s 21);
2. marks on a standard business document, such as an order or invoice (s 22);
3. business signage in, on or near the premises of a manufacturer, importer, distributor or retailer that states no more than its name and contact details, the nature of the business, or its location (s 23);
4. a statement that regulated tobacco items are available, without a brand or variant name or anything identifying a particular item or range (s 24);
5. recalls, defects and dangers, disposal procedures, and consumer rights (s 25);
6. communications about government or political matters (s 26);
7. artistic works in good faith, and genuine academic, educational, scientific or public interest communications (s 27);
8. news and current affairs reporting by a qualified journalist, where the public interest outweighs any likely adverse effect on the Act’s objects and no tobacco business gives a benefit (s 28);
9. an author’s disclosure of a conflict of interest, or acknowledgement of a contribution, in a periodical (s 29).

Several of these carry a rider. For business signage, section 23(3) says a communication, recommendation or action in relation to the signage may still be a tobacco advertisement.

The shop screen: section 31

Section 31 is the permission for a physical point of sale. It sets five conditions, all of which must be met:

“(1) A person may publish a tobacco advertisement if:

1. (a)
   the person displays the tobacco advertisement at physical premises where regulated tobacco items are offered for retail sale; and
2. (b)
   a law of the State or Territory in which the premises are located regulates the advertising of regulated tobacco items; and
3. (c)
   that law contains provisions expressly dealing with the display of advertisements for regulated tobacco items at or on premises where such items are offered for retail sale; and
4. (d)
   the display of the tobacco advertisement complies with those provisions; and
5. (e)
   the tobacco advertisement is not visible from outside the premises.”

Public Health (Tobacco and Other Products) Act 2023, s 31(1)

Section 31(2) counts three more places as physical premises: a kiosk, market stall or other place with fixed boundaries, walled or not, where goods are sold by retail; a vending machine; and a motor vehicle.

This guide does not set out any state or territory’s display rules. Section 31 makes the Commonwealth permission depend on them: a display can rely on it only where the local law expressly deals with point-of-sale displays and the display complies with that law.

E-cigarettes: no point-of-sale counterpart

Section 42 sets the same three penalty tiers for e-cigarette advertisements, defined in section 43 as communication that promotes, or is likely to promote, vaping or an e-cigarette product or its use. The offence applies where any of five connections exists: the publisher is a constitutional corporation; it is a body corporate incorporated in a Territory; the publication is in the course of constitutional trade or commerce; it uses a postal, telegraphic, telephonic or other like service; or it is made in a Territory.

The permitted publications for e-cigarette advertisements, in sections 60 to 63, cover carriers and internet and hosting providers acting only in that capacity; periodicals printed outside Australia; a publication made to comply with an authorised officer’s request or requirement, or “authorised or required by any other law of the Commonwealth or any law of a State or Territory” (section 62); and advertisements during a flight that does not both begin and end in Australia. The Act’s endnotes record that sections 57 to 59 were repealed by Act No. 38 of 2025. In the compilation of 5 September 2025 there is no permission like section 31 for a point of sale.

Section 53 separately excludes some advertisements for vaping goods that the Therapeutic Goods Act deals with.