Promotion and advertising of alcohol in Australia by companies outside of Australia – Is the ABAC Code really voluntary? It depends …

The Alcohol Beverages Advertising Code Scheme is a not for profit organisation established to promote the marketing of alcohol beverages.

It is quasi-regulatory in nature as Australian governments are represented on its Management Committee, and a Professor of Public Health, nominated by government, is part of all adjudication panel hearings.  

The ABAC Responsible Alcohol Marketing Code (ABAC Code), which is administered by a Management Committee comprising of representatives from industry and advertising, consists of a set of good practice standards for the responsible content and placement of alcohol marketing in Australia.  As set out in the preamble of the ABAC Code, the aim of the ABAC Code "is marketing consistent with the objectives of the National Alcohol Strategy for the reduction of harm from adult alcohol consumption and, specifically, does not encourage minors to consume alcohol".  "Alcohol" means a beverage or related consumable product (ice block, vapour etc) containing more than 0.5% alcohol by volume.

Signatories to the ABAC Code must ensure their marketing / advertising (alcohol marketing communication) complies with the terms of the ABAC Code’s content and placement standards, as well as the "spirit and policy intent of the Code".  It is understood that ABAC signatories represent around 92% of alcohol producer and 65% of alcohol retailer media spend in Australia.

Does the ABAC Code apply to non-signatories?  Why follow the ABAC Code?

The ABAC Code is formally binding on direct signatories and members of major industry associations, such as the Brewers Association, Spirits & Cocktails Australia, and Australian Grape & Wine.  It also applies to non-signatories, particularly regarding the standard of content and placement of marketing.  

Compliance with the ABAC Code is strongly encouraged for several reasons, including:

• Potential complaints – The ABAC Adjudication Panel (Panel) will consider and investigate complaints about the advertising of alcohol, irrespective of whether a manufacturer is a signatory to the ABAC Code.
• Regulatory considerations – State and Territory legislation largely mirror the provisions of the ABAC Code.  If a non-signatory fails to accept and comply with a Panel decision, the decision may be referred to the relevant Liquor Licensing Authority for consideration against the licensee's regulatory and promotional requirements.
• Reputational considerations – The Panel publishes its determinations via quarterly reports, alerts and media releases.  This may result in adverse publicity and reputational consequences for the advertiser.

Overseas manufacturers of alcohol and their advertisements  

Not all alcohol marketing communications are within the jurisdiction of the ABAC Scheme.  Rather, the ABAC Scheme is limited in its reach to alcohol marketing communications linked to Australia.  

To fall within the ambit of the Scheme, alcohol marketing communications must have a discernible and direct link to Australia.  This includes, for example:

1. Alcohol marketing communications or social media accounts that are under the control of an Australian alcohol marketer.
2. If social media accounts are under the control of an international company or entity, there is a discernible and direct link to Australia.  For example, there is an Australian entity with reasonable control over the alcohol marketing communication to which the ABAC obligations can attach, and/or there are obvious references to Australia or Australian consumers, and/or an Australian entity has a commercial relationship with the creator or controller of the alcohol marketing communication.
3. The alcohol marketing communication is easily accessed in Australia by Australian consumers.  That is, there is no geo-blocking stopping the alcohol marketing communication being seen in Australia.
4. There is interaction with the alcohol marketing communication from Australian consumers.  For example, Australian consumers are posting comments on a social media account where the alcohol marketing communication is published.

Conversely, the following are examples of alcohol marketing communications that are generally outside of the jurisdiction of the ABAC Scheme:

1. Alcohol marketing communications are not created or controlled by an Australian alcohol marketer, nor was an Australian distributor aware of the publishing of the alcohol marketing communication.
2. The content of the alcohol marketing communication demonstrates that the alcohol marketing communication was intended for a non-Australian audience.
3. There is no indication that Australian consumers are actively engaging with the alcohol marketing communication.
4. Alcohol marketing communications were intended to promote alcohol in a country outside Australia.  There is no obvious reference to Australia or Australian consumers.
5. Alcohol marketing communication is not readily accessible in Australia.  For example, the alcohol marketing communication requires a VPN to bypass geo-blocks.

Context is important and the ABAC Scheme will consider the factual circumstances of each instance when assessing whether alcohol marketing communications are within the jurisdiction of the ABAC Scheme.  

Some quick guidelines for responsible alcohol advertising

Advertisers of alcohol are permitted to (amongst other things):

• portray alcohol consumption in moderation and in appropriate settings;
• apply available age restriction controls to ensure content is only accessible to people over the age of 18;
• work only with influencers or content creators who are aged 25+, and whose audience comprise >80% adult (if such data is available); and
• monitor and moderate user-generated content on platforms controlled by the brand to ensure compliance with alcohol advertising guidelines.

Advertisers of alcohol must not (amongst other things):

• use language or imagery that encourages irresponsible drinking.  For example, implying that alcohol is a meal or should be consumed like a food product;
• feature non-standard serving techniques or non-standard sized drinks; and
• create content with strong or evident appeal to minors.

Overseas alcohol makers needing more information about advertising in Australia, can contact Partner Mandi Jacobson.

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