ACMA finds for 2SM in tobacco complaint

The ACMA rejected a complaint from an anti-tobacco campaigner that by playing the theme music from the movie, The Magnificent Seven, on July 25 on 2SM, John Laws breached the rules concerning tobacco advertising.

Following the success of the 1960 movie which had an all-star cast including Yule Brynner and Steve McQueen (who both died of lung cancer) the theme was used by Marlboro branded cigarettes until 1976 when tobacco advertising was banned from radio.

ACMA found that by broadcasting the one and a half minute theme, without any reference to smoking, neither Laws nor 2SM had a case to answer.

In its finding ACMA states…

The 29 minutes prior to the broadcast of the tune comprised content unrelated to the topic of smoking or tobacco products, and included three listener phone calls; discussion of listener emails; a commercial break; and a news update. Following the broadcast, the presenter discussed a news item; two listeners phoned in about current affairs matters (lasting over 10 minutes); another tune was played; and more emails were discussed. 

Approximately 15 minutes after the tune was aired, a caller (A) phoned and inquired about the tune. The exchange was as follows:

JL: [A] good morning.

A: Yeah how you going.  When you played that Magnificent Seven promo.

JL:  Yeah.

A: Isn’t that the… ah, wasn’t that the promo for Marlboro cigarettes?

JL: Yes.  It used to be when they were allowed to advertise cigarettes.  Marlboro used to use the Magnificent Seven theme you are quite right. 

A: Yeah I thought so. Yeah.  What about the plain packaging for cigarettes that’s going to come in, in December?

JL:  Well what a lot of rot that is.  But I think…

A: No I think it will work for the young people.  I think that’s what it’s all about.

JL: Do you smoke?

A: No but I gave it up about 17 years ago.

JL: Yeah.  Well I used to smoke and gave up.  Anybody who smokes now sorry is a fool.

A: That’s right.

JL: Knowing all we know about the damage that is done to you by smoking cigarettes, anybody who puts a cigarette in their mouth is a fool. 

A: And we’ve got to stop the young people from starting.  That’s what it’s all about.

JL: Yeah, because once you start it’s hard to stop.

A: Yeah, that’s for sure.

JL: But you know I think it is a very good thing.  Anything you can do to reduce the incidents of young people smoking cigarettes the better.

A: That’s right well Big Tobacco is worried about it because um, of the lawsuits they’re trying to put on the government.

JL: And so they should be.  And they’re a very powerful lobby believe me.

A: Yes very powerful.

JL: Big Tobacco lobby.  Anyway [A] you and I are in total agreement.  If anything can stop people putting cigarettes in their mouth, we should encourage it.

Following this exchange, there was a short traffic break, and the presenter stated:

Somebody wanted to talk about the music from the Magnificent Seven that we play with monotonous regularity.  But I just like that bit of music.  It only take about one minute 45 or something, so surely I’m entitled to play it, and I think you might like hearing it anyway.  But ah, somebody was talking about it earlier.   To my knowledge, and I’m only going by memory, it was written by Elmer Burnstein, and ah, or was it Elmer or Leonard?  You see there were two of them.  I think Leonard Burnstein wrote Westside story and ah, Elma wrote the other one. There are two Burnsteins well, there are certainly more than two. But, two who wrote some music.

The remaining content of the program did not relate to the issue of the tune or the topic of smoking or tobacco products.

Complainant’s submissions

The complainant submitted:

This morning on John Laws Show a very familiar piece of music was played. No intro, no back announce.  It was the theme to the Magnificent Seven. Now I’ve never been a smoker but immediately recognised it as the Marlboro theme. Smokers and ex-smokers all around the country would have pricked up their ears and thought ‘Marlboro’. 

When a listener queried him about it – using the brand name – Laws said all the right things while managing to ridicule the new plain packaging laws at the same time.

…Laws and his mates are laughing at ACMA and the broader community who want this vile product to be seen for what it is – if not banned completely. He obviously needs another reminder of his responsibilities.

Licensee’s submissions

The licensee submitted:

Firstly it is our very strong contention that there has been no breach of our compliance with clause (8)(1)(a) of Schedule 2.  In forming this view neither the dialogue nor the discourse between the caller and Mr Laws promotes tobacco advertising or tobacco products.

While it is acknowledged the introductory music is similar to that used previously by a tobacco company, there is no reference to a tobacco company until the caller makes an association with a particular brand.  As the discourse between the caller and Mr Laws unfolds it is clear the use of tobacco is strongly rejected for, in particular, health reasons.  There is certainly no promotion of tobacco products …  

There is a discussion about the matter of plain packaging – this has been the topic of widespread community and political debate over many months since its proposed introduction.  It remains a topic that can be discussed as a current affairs matter on radio and in any form of the media as court proceedings on the issue continue to bring the issue to the forefront of community attention.

Finally it is our very strong contention that media issues should continue to be able to be presented to the community for comment and discussion, provided of course the manner of presentation is within the respective licence conditions and Codes of Practice.

The licensee confirmed with the ACMA by email on 20 September 2012 that:

None of the Broadcast Operations Group, Radio 2SM Pty Ltd nor Mr John Laws received any benefit – either direct or indirect (whether financial or not), from any group that may be associated with the tune played on 25 July 2012 that is the subject of the complaint from a listener and now being investigated by the ACMA.

Finding

The licensee did not broadcast a tobacco advertisement in contravention of the TAP Actin the broadcast of the John Laws Show on 25 July 2012.

Accordingly, the licensee did not breach the licence condition under paragraph (8)(1)(a) of Schedule 2 to the BSA.