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Australia has some of the toughest laws prohibiting tobacco advertising in the world.1 Tobacco companies have only one legal avenue in Australia to promote their product—at the point of sale. (Under section 18 of the 1992 Tobacco Advertising Prohibition Act, exemptions may be granted by the Federal Minister of Health for events of international significance which would otherwise be lost to Australia. A recent exemption has been made in Melbourne, Australia for the Formula 1 Grand Prix race.) However, a series of advertisements, which appear to be promoting cigarettes, has recently been posted on walls around Melbourne and has been placed in a youth magazine. A close inspection of the advertisements reveals that they are actually advertising Dangerfield, a clothing company.
Dangerfield caters to avant-garde youth fashion. The advertisements have been placed on the back page of Beat, which is a free magazine targeted at the local nightclubbers (figure 1). Research has shown that the nightclubber market segment is at high risk of adopting smoking (Schofield et al, unpublished manuscript).
Winfield is currently the top-selling brand among Melbourne adults and the second most popular brand, just behind Peter Jackson, among schoolchildren.2 The Dangerfield advertising campaign blatantly copies the Rothmans “look” and advertising strategies used in Australia during the 1970s for Rothmans’ Winfield brand. Currently, the latest trend in the Australian nightclub scene is ’70s retro fashion. Figure 2 shows one of the Dangerfield advertisements and an original Winfield advertisement. Visually, there are several parallels between the two advertisements. There is a red backdrop in both advertisements, which was traditionally used in Winfield advertisements. The slogan “ . . . anyhow”, which heads the top of both advertisements, is a trademark of Rothmans of Pall Mall for the exclusive use of promoting Winfield. Paul Hogan, who rose to fame as an Australian comedian/actor in the early 1970s and starred in the Crocodile Dundee movies, features in both advertisements. Although the pose is different, the clothing worn by Paul Hogan is identical in the two photographs. It is almost as if the photos came from the same roll of film. The Winfield packet still looks like this today, so that even if the viewer did not know this original Winfield advertisement, the visual similarities are probably strong enough to trigger the association.
Chapman reported in Tobacco Control last year that John Cornell, an ex-manager of Paul Hogan, had publicly expressed regrets about Hogan and Cornell’s involvement in Rothmans’ Winfield campaign.3 Cornell claimed that when they were selling cigarettes, the health effects of smoking were unknown, despite the fact that the advertising campaign started more than 10 years after the first reports linking smoking and lung cancer. Is it just coincidence that the Dangerfield advertisement featuring Paul Hogan was released about six months after Cornell’s comments?
Figure 3 displays another Dangerfield advertisement which is dominated by a large cigarette packet. It borrows its slogan “Your international passport to P.leisure” [sic] from the Rothmans brand international advertising campaign. This advertisement also derides the strong and visible new health warning labels that were introduced in 19944 by including the warning “maximises your root pulling power”. (In Australia, “pulling a root” is a colloquial expression that means seeking and successfully obtaining sexual intercourse.) It suggests that wearing Dangerfield clothing increases a person’s sexual magnetism. Or is it a “warning” label for smoking Winfield cigarettes? Fashion advertising frequently associates clothing with sexuality but what is concerning here is that this message is also being linked with tobacco products. It is not known whether there is a formal connection or agreement between Dangerfield and Rothmans. Nor is it known whether Rothmans took any steps to exercise their rights under laws governing trademarks. This would seem unlikely as the advertising promotion ran over many weeks.
Legal advice received by Quit Victoria suggests that these advertisements may well be in breach of the Tobacco Advertising Prohibition Act 1992 and the matter has been referred to the Commonwealth Department of Health. The Act “prohibits the publication, knowingly or recklessly of tobacco advertisements”. “Tobacco advertisements” are defined to cover “any visual or audible message that publicises or promotes smoking”. It would seem that the visual image of a Winfield packet even without a brand name is a tobacco advertisement. The inclusion of the words “knowingly or recklessly” is to prevent innocent acts from being a breach. These words imply that intention must be present for the act to be an offence. However, exemption clauses may provide Dangerfield with a promising defence to these allegations. Material that is an “accidental or incidental accompaniment to the . . . publication of other material”, and for which “no benefit” is received for the publication of this material, is exempt. If Dangerfield can demonstrate that the visual display of a Winfield packet was incidental to the advertisement of their clothing store and that Dangerfield did not receive any benefit from the use of the Winfield packet, then they are not in breach. Hence, the legal argument would revolve around the question of whether the image of a Winfield packet which constitutes the entire background of the Dangerfield advertisement is “incidental” or not.nuscript).
From a public health perspective, it would seem quite clear that this series of advertisements promotes Winfield cigarettes in addition to promoting the Dangerfield clothing company. Of even greater concern is that the promotion is targeted at young people who attend nightclubs, a group known to be at high risk of smoking (Schofield et al, unpublished manuscript).
From a legal point of view, the issue is less clear cut. Pursuing legal redress against a popular clothing company poses a dilemma for public health authorities, as launching a legal challenge may only serve to alienate the target group with which we wish to communicate.