If you advertise your business in Australia, you should be aware that various industry codes of practice regulate advertising in Australia. Codes of practice are a set of rules with which businesses in the industry must comply. Some of these industry codes of practice are in legislation, while others are self-regulated by the relevant industry groups. This article will discuss various aspects of the AANA Code of Ethics, one of the principal Codes regulating advertising in Australia.

The AANA Code of Ethics

There are several codes under the Australian Association of National Advertisers’ (AANA) self-regulatory system. One of these codes is the AANA Code of Ethics. The Code of Ethics is the main Code which applies to advertising in any medium. It deals with matters of: 

  • legality;
  • honesty;
  • taste; and
  • decency in advertising and marketing.

There are also other codes under the AANA’s self-regulatory system, including the: 

  • Code for Advertising and Marketing Communications To Children;
  • Food & Beverages Advertising Code (from 1 June 2019);
  • Environmental Claims Code; and
  • Wagering Advertising Code.

The Ad Standards is the body administering industry codes on behalf of the AANA, including the Code of Ethics.

When Does the Code of Ethics Apply?

Advertising or marketing material is defined in the Code as any advertising or marketing in any medium (e.g. TV, social media, radio etc.) that you have a reasonable degree of control over. However, there are several matters the Code does not apply to, including: 

The Code of Ethics applies when the advertising or marketing material aims to promote (directly or indirectly) goods or services to the public. The Code also applies if the advertising or marketing material intends to ‘attack’ (directly or indirectly) a competitor’s goods or services.

Competitors and consumers can lodge a complaint with the Ad Standards if they think your advertisement or marketing material breaches the Code.

Matters Competitors Can Complain About Under the Code

Section one of the Code sets out the matters that a competitor can complain about. It stipulates that your advertising or marketing material must:

  • comply with Australian law;
  • not be misleading or deceptive or likely to mislead or deceive. For example, implying or stating that buying or using your goods or services benefits the environment when there are no such benefits;
  • must not include misleading statements that are likely to damage a competitor’s business or goodwill; 
  • not make misleading claims about the origin of your goods or services. For example, claiming that your product is Australian made when the product is made overseas and assembled in Australia; and
  • not present your goods or services in a way that exploits public concerns with regards to the environment.

For example, an environmental practice is compulsory for your business. You cannot make an environmental claim in a way that leads a consumer to think you have voluntarily adopted that practice when it is mandatory.  By doing so you could potentially mislead the consumer to feel good about your business when you are merely adhering to a mandatory requirement.

Matters Consumers Can Complain About Under the Code

Section two of the Code sets out matters about which a consumer can complain. Section one stipulates that your advertising or marketing material must:

  • not include material which discriminates against or vilifies a person or segment of the community because of their:
    • race;
    • ethnicity;
    • nationality;
    • gender;
    • age;
    • sexual preference;
    • religion;
    • disability;
    • mental illness; or
    • political belief.
  • not include material which utilises sexual appeal that is degrading to, or exploitative of, an individual or group of people;
  • not contain material which states or implies that minors are sexual beings or objects of sexual appeal;
  • ensure that reference to sex, sexuality, nudity, as well as the use of language is appropriate, taking into account: 
    • the audience your advertisement or marketing material is directed to; and
    • the medium of your advertising or marketing material;
  • not state or suggest that buying or using your product will enhance minors’ sexuality;
  • not present or portray violence unless it is justifiable. There are certain exceptions to this rule. For example, if you are showing violent graphics in promoting a violent action computer game, then it may be permissible under the Code;
  • not include material contrary to health and safety (for example, showing a person jumping off the building to commit suicide); and
  • be clearly commercial in nature. That is, your advertising or marketing material cannot be disguised as:
    • independent market research;
    • user-generated content;
    • private blogs; or
    • independent reviews.

What Should I Do if Someone Complains About My Advertising or Marketing Material?

If someone complains about your advertising or marketing material, you will be notified and required to respond. In your response, you will need to detail how your advertising or marketing material does not breach the Code. Ad Standards then considers the complaint and releases a verdict to you and the complainant. A case report is later compiled and released.

Please note that your advertising and marketing materials likely also need to comply with the Australian Consumer Law (ACL). The ACL prohibits you from engaging in misleading or deceptive conduct when conducting your business. It also prevents you from making false or misleading statements about your products or services. 

Key Takeaways

When creating advertising or marketing material, you need to be confident that your advertising and marketing materials comply with relevant industry regulations, including the AANA Code of Ethics. If you have any questions about advertising or marketing regulations and how they affect you, contact LegalVision’s marketing compliance lawyers on 1300 544 755 or fill out the form on this page.

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