TLDR
Foxtel breached Australia's tobacco advertising rules by broadcasting a vintage Marlboro-liveried race car during a tribute race at the New Zealand Grand Prix on 31 January 2026. The Australian Communications and Media Authority (ACMA) found that intent to promote is irrelevant under the Broadcasting Services Act, with historic branding becoming a current advertisement the moment it reaches viewers. No fine was imposed, but Foxtel must introduce pre-acquisition checks and quarterly compliance reminders.
KEY TAKEAWAYS
The heritage argument didn't wash
On 31 January, Foxtel aired live a 20-minute tribute race at the New Zealand Grand Prix meeting, run for the late New Zealand driver Tim Miles with open-wheel cars from the 1970s to the 1990s. One of them, last raced in 1992, still wore "Marlboro" and the brand's logo on its bonnet, front wings and rear bodywork, and "Peter Jackson" on its bonnet and side panels. It was on screen repeatedly and for long stretches, including slow-motion replays and a 40-second close-up that zoomed in on the branding.[1]
The ACMA has found Foxtel breached the Broadcasting Services Act, which bars licensees from broadcasting tobacco advertisements in breach of the Public Health Act. There's no fine. Foxtel has to bring in internal guidelines, quarterly reminders and training for staff on tobacco advertising, and change how it checks motorsport it buys in the future.[1]
Foxtel's defence rested on three points: it has "no current or subsisting commercial relationship" with the cigarette company, the livery is "an integral and inseparable part of the car's identity as a historic racing vehicle", and the coverage was live, so it couldn't edit it and didn't know the car would be there. The regulator accepted the branding "reflects the historical livery of the vehicle" and that there was no "contemporaneous commercial arrangement", then ruled it didn't matter. "The test does not require an intention to promote, nor the existence of a commercial relationship," the ACMA said. "Although the branding itself may have been historic, the licensee's communication of it to viewers was not."[1]
A different result from the F1 cases
Foxtel has been here before. In an earlier ACMA investigation into two of its Formula 1 broadcasts, logos for the vaping brand Vuse and the nicotine pouch brand Velo were treated as tobacco advertisements, but the ACMA found no breach because it could not infer that Foxtel intended to promote smoking or tobacco products.[2] The ACMA also examined Ten and Foxtel broadcasts that showed Ferrari's Mission Winnow branding, the Philip Morris campaign critics said evoked the Marlboro chevron.[3]
This time the regulator spelt out that intent isn't part of the test, and the length of time the car was on screen did the rest.[1]
What it means for anyone buying live sport
The finding lands on every Australian broadcaster and streamer that takes international feeds it doesn't produce. Heritage events, historic racing and classic-car coverage are exactly where old tobacco liveries survive, and a live feed is no defence once the branding reaches Australian viewers. Foxtel's fix is to check the content before it buys it, rather than during the broadcast, and rights buyers at other networks would be wise to do the same.[1]
SOURCES & CITATIONS
Xaviery Malinao writes for Prompt the Market on how brands and agencies are adapting to answer engines, drawing on Bushnote's work with clients across search, AI search and content.
