PROTECTING CHILDREN FROM JUNK FOOD ADVERTISING (BROADCASTING AND TELECOMMUNICATIONS AMENDMENT) BILL 2011

2010-2011

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Protecting Children from Junk Food

Advertising (Broadcasting and

Telecommunications Amendment) Bill

2011

No. , 2011

(Senators Bob Brown and Di Natale)

A Bill for an Act to amend the Broadcasting

Services Act 1992 to encourage healthier eating

habits among children by restricting the

broadcasting of advertisements for junk food, and

for related purposes

i Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications

Amendment) Bill 2011 No. , 2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Amendment of the Broadcasting Services Act

1992

Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications

Amendment) Bill 2011 No. , 2011 1

A Bill for an Act to amend the Broadcasting

Services Act 1992 to encourage healthier eating

habits among children by restricting the

broadcasting of advertisements for junk food, and

for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Protecting Children from Junk Food

Advertising (Broadcasting and Telecommunications Amendment)

Act 2011.

2 Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications

Amendment) Bill 2011 No. , 2011

2 Commencement

This Act commences on the day on which it receives the Royal

Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Amendment of the Broadcasting Services Act 1992 Schedule 1

Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications

Amendment) Bill 2011 No. , 2011 3

Schedule 1--Amendment of the Broadcasting

Services Act 1992

1 After section 122

Insert:

122A Restrictions on advertising of unhealthy foods

(1) A person must not broadcast an unhealthy food advertisement that

is directed to children.

(2) A commercial broadcasting television licensee must not broadcast

an unhealthy food advertisement:

(a) subject to paragraph (b), between 6 am and 9 am and

between 4 pm and 9 pm, on a day that falls between Monday

to Friday inclusive; and

(b) between 6 am and 12 pm and between 4 pm and 9 pm, on

Saturday, Sunday or a public holiday that falls between

Monday and Friday inclusive.

(3) A subscription broadcasting television licensee must not broadcast

an unhealthy food advertisement on a subscription broadcasting

service that is primarily intended for or watched by children.

(4) A person must not upload, or cause, permit or authorise the

uploading of, material on the internet that constitutes or contains an

unhealthy food advertisement that is directed to children.

(5) A person must not send, or cause, permit or authorise the sending

of, a commercial electronic message that constitutes or contains an

unhealthy food advertisement to another person, if the first person

knows, has reason to suspect, or reasonably should have known,

that the other person is a child.

(6) In this section:

broadcast means transmit by means of a broadcasting service.

child means a person under the age of 16 years.

commercial electronic message has the meaning given in the Spam

Act 2003.

Schedule 1 Amendment of the Broadcasting Services Act 1992

4 Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications

Amendment) Bill 2011 No. , 2011

directed to children has the meaning given in Schedule 8.

food brand means:

(a) a person, business or company that manufactures, distributes

or sells one or more unhealthy foods; or

(b) the whole or a part of a trade mark that is registered under the

Trade Marks Act 1995 in respect of one or more unhealthy

foods; or

Designs Act 2003 in respect of one or more unhealthy foods;

(d) any other words (including brand names) or designs, or

combinations of words and designs, that are closely

associated with one or more unhealthy foods.

healthy food means a food or beverage product that complies with

nutrient profile criteria prescribed in regulations made for the

purposes of this definition.

unhealthy food means a food or beverage, or any product

containing a food or beverage, that does not comply with nutrient

profile criteria prescribed in regulations made for the purposes of

this definition.

unhealthy food advertisement means any writing, still or moving

picture, sign, symbol or other visual image, or audio message, or

any combination of these media, that publicises or promotes, or is

intended to publicise or promote:

(a) one or more unhealthy foods; or

(b) a food brand;

unless the primary purpose of the advertisement is to publicise or

otherwise promote one or more healthy foods.

(7) The Minister must take all reasonable steps to ensure that

regulations for the purposes of the definitions of healthy food and

unhealthy food in subsection (6) are made within 6 months of the

commencement of this section.

(8) For the purposes of subsection (4), a person does not upload, or

cause, permit or authorise the uploading of, material on the internet

merely because the person supplies an internet carriage service that

enables the material to be uploaded.

Amendment of the Broadcasting Services Act 1992 Schedule 1

Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications

Amendment) Bill 2011 No. , 2011 5

(9) For the purposes of subsection (5), a person does not send, or

cause, permit or authorise the sending of, a commercial electronic

message merely because the person supplies a carriage service that

enables the message to be sent.

(10) Subsections (1), (2) and (3) do not prevent the broadcasting of

community service announcements about unhealthy foods.

(11) Subsections (1), (2) and (3) do not apply to a person broadcasting

an unhealthy food advertisement that is directed to children if:

(a) broadcasting the advertisement is an accidental or incidental

accompaniment to the broadcasting of other material; and

(b) broadcasting the advertisement could not reasonably have

been prevented or avoided; and

(whether financial or not) from broadcasting the

advertisement (in addition to any direct or indirect benefit

that the person receives for broadcasting the other material).

(12) Subsections (1), (2) and (3) do not apply to a person broadcasting

an unhealthy food advertisement that is directed to children if:

(a) the advertisement is broadcast for historical interest, or for

the purpose of documentary or educational analysis or

research; and

(b) the person does not receive any direct or indirect benefit

(whether financial or not) from broadcasting the

advertisement.

2 At the end of subclause 7(1) of Schedule 2

Add:

; (s) the licensee will comply with the requirements set out in

section 122A (which deals with the advertising of unhealthy

foods).

3 At the end of the Act

Add:

Schedule 8--Meaning of directed to children

Note: See

section

122A.

Schedule 1 Amendment of the Broadcasting Services Act 1992

6 Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications

Amendment) Bill 2011 No. , 2011

1 Meaning of directed to children

(1) An advertisement is directed to children if the advertisement is:

(a) likely to appeal to children; and

(b) broadcast during, or immediately before or after, a program

or segment that is likely to appeal to children or for which the

broadcast audience is likely to consist of a significant number

or proportion of children; or

which the audience is likely to consist of a significant

number or proportion of children.

(2) In considering whether an advertisement is likely to appeal to

children, factors that may be taken into account include but are not

limited to:

(a) the product advertised;

(b) the themes, content, presentation and design of the

advertisement;

(d) the likely appeal to children of any images, graphics,

language, sounds, music, objects, animals, personalities,

characters, activities, games or sport in the advertisement;

(e) the likely appeal to children of any competitions, prizes,

promotional items or premiums promoted in the

advertisement.

(3) In considering whether a program or segment is likely to appeal to

children, factors that may be taken into account include but are not

limited to:

(a) the themes, content, presentation and design of the program

or segment;

(b) the apparent age of any people or characters appearing in the

program or segment;

language, sounds, music, objects, animals, personalities,

characters, activities, games or sport in the program or

segment.

Amendment of the Broadcasting Services Act 1992 Schedule 1

Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications

Amendment) Bill 2011 No. , 2011 7

(4) In considering whether a website or webpage is likely to appeal to

children, factors that may be taken into account include but are not

limited to:

(a) the themes, content, presentation and design of the website or

webpage;

(b) the likely appeal to children of any images, graphics,

language, sounds, music, objects, animals, personalities,

characters, activities, games or sport on the website or

webpage;

promotional items or premiums promoted on the website or

webpage.

Commonwealth of Australia Bills

PROTECTING CHILDREN FROM JUNK FOOD ADVERTISING (BROADCASTING AND TELECOMMUNICATIONS AMENDMENT) BILL 2011