16A.—(1) This section applies to an advertisement relating to any food or prescribed food contact article that —
(a)
does not comply with all applicable requirements of this Act relating to advertisements promoting the food or that prescribed food contact article;
(b)
is false as to the age, composition, effects, nature, origin, purity, quality or strength of the food or the safety or suitability of the food or that prescribed food contact article;
(c)
is likely to deceive a buyer as to the age, composition, effects, nature, origin, purity, quality or strength of the food or the safety or suitability of the food or that prescribed food contact article;
(d)
is prohibited by an applicable requirement of this Act from being marked or attached to the kind of food or that prescribed food contact article, or packages containing that kind of food;
(e)
makes a statement prohibited by an applicable requirement of this Act to be made in an advertisement relating to the kind of food or that prescribed food contact article;
(f)
expressly or impliedly qualifies, or is contrary to, details required by an applicable requirement of this Act to be marked or attached to the kind of food, or packages containing that kind of food or that prescribed food contact article;
(g)
omits from the name or description of the food or the prescribed food contact article any word or words required by an applicable requirement of this Act to be included in the name or description marked on or attached to the kind of food or that prescribed food contact article, or packages containing that kind of food;
(h)
fails to make a statement required by an applicable requirement of this Act to be made in an advertisement relating to the kind of food or that prescribed food contact article; or
(i)
fails to show, in an advertisement shown on a screen, a word or words or statement required by paragraph (g) or (h) in clearly legible lettering for a sufficient length of time for an ordinary viewer to read them.
[48/2017]
(2) A person who is —
(a)
the person selling, promoting the sale, or appearing to promote the sale of any food or prescribed food contact article; or
(b)
the agent or employee of the person selling, promoting the sale, or appearing to promote the sale of any food or prescribed food contact article,
must not publish an advertisement described in subsection (1) relating to the food or that prescribed food contact article.
[48/2017]
(3) In a prosecution for an offence under section 20 for contravening subsection (2), it is not necessary for the prosecution to prove that the accused intended to commit the offence.
[48/2017]
(4) In a prosecution for an offence under section 20 for contravening subsection (2) concerning an advertisement of a kind mentioned in subsection (1)(b), the advertisement is taken to be false as to the relevant matter in that subsection unless evidence is adduced by the accused to the contrary.
[48/2017]
(5) To avoid doubt, subsection (4) does not —
(a)
have the effect that, merely because such evidence to the contrary is adduced, the advertisement is not false as to the relevant matter in subsection (1)(b); or
(b)
have the effect of placing on any person the onus of proving that the advertisement is not false as to the relevant matter in subsection (1)(b).
[48/2017]
(6) Without affecting section 32, in any proceedings for an offence under section 20 in relation to the publication of an advertisement in contravention of subsection (2), it is a defence to the charge for the accused to prove, on a balance of probabilities —
(a)
that —
(i)
the accused was acting in the course of a business of delivering, transmitting or broadcasting communications (in whatever form or by whatever means) or making data available; and
(ii)
the nature of the business is such that persons undertaking it have no control over the nature or content of the communications or data; or
(b)
that the accused —
(i)
carried on the business of publishing or arranging for the publication of advertisements; and
(ii)
published or arranged for the publication of the advertisement in question in the ordinary course of that business.
[48/2017]
(7) However, subsection (6) does not apply if the accused concerned —
(a)
ought reasonably to have known that the publication of the advertisement was an offence under this Part;
(b)
had previously been informed in writing by or on behalf of the Director‑General that publication of such an advertisement would constitute an offence under this Part; or
(c)
is the proprietor of a food business or is otherwise engaged in the conduct of a food business for which the advertisements concerned were published.
