Time’s up: It’s down to business

The three-month window of leeway for retailers to come to grips with the new rules for the sale of tobacco is drawing to a close. By 1 October all retailers must be registered with the OTC

As the deadline by which all sellers of tobacco must register with the OTC approaches, so too is the three-month grace period rapidly ending.

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The new "Guidelines for those selling Tobacco Products" cover six main areas and a good understanding of and commitment to these rules are vital for all your employees to ensure compliance with the new regulations. Key among them are:

• A ban on all in-store point of sale advertising of tobacco products
• A ban on the display of tobacco products in retail premises
• The introduction of a closed container/dispenser provision
• Tighter controls on the location and operation of tobacco vending machines
• The introduction of a register for tobacco retailers (deadline to register is 1 October)
• A requirement to display a prescribed retail sign, issued by the Office Of Tobacco Control on the premises

What type of advertising is banned?

From 1 July 2009 tobacco related advertising is not permitted in or on retail premises. This includes both internal and external tobacco display and advertising signage. The use of the traditional unit for the sale of cigarettes is no longer permitted. The provision covers all in-store advertising or promotional material for tobacco products including, gantries, clocks, change mats and till covers. No tobacco products or reproductions of tobacco products may be on display in any form. This includes a statement of the name of a manufacturer, importer or brand of tobacco product, or a display of a trademark, emblem, marketing image or logo, by reference to which the product is marketed or sold.

How can tobacco be sold?

All tobacco products must be kept out of view in a closed container or dispenser only accessible by the retailer and retail staff. It is entirely a matter for each retailer to decide how tobacco products are removed from view. No one particular type of unit is specified and the container does not have to be under the counter. The closed container itself can be visible, however cigarette products must be concealed. Further more, the selection buttons for dispensing machines must not display tobacco product trademarks, emblems, marketing images or logos unless they are out of view of the customer.

Showing product to customers

A retailer may show to a customer intending to purchase a tobacco product: (a) one packet only of each tobacco product sold or a reproduction thereof; or (b) a pictorial list (menu board) consisting of visual images of packets of the tobacco products sold by him or her.

In the case of the pictorial list/menu board, certain provisions apply:

1. Each image must not be greater in size than the size the packet concerned
2. The list must not contain more than one image of the same product
3. The list of each such image must contain one of the mandatory health warnings as set out in the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations 2003 as amended by S.I. No. 255 of 2008
4. The pictorial list must not be left around or on display and must only be taken out to show a customer who intends to purchase a tobacco product
5. A premises registered to sell tobacco products is permitted to keep separate lists for different types of tobacco products and self-service vending machines

What signs must be displayed in store?

From 1 July 2009, anyone registered to sell tobacco must display a sign prescribed by the Office of Tobacco control at their premises. This sign is available to download from www.dohc.ie/tobacco. The downloaded sign must be printed on white paper or cardboard and conform to the dimensions, type-face colour and point size of the sign prescribed in the regulations.
Only one sign per premises is permitted and no attention shall be drawn to the sign by means of light, sound or any other means. No other sign, notice or display is permitted at the premises indicating that tobacco products are for sale.

Self-service vending machines

Tobacco may be sold by way of a self-service vending machine on licensed premises or in registered clubs only. A "licensed premises" is defined in the Intoxicating Liquor Act 1988 as "a premises in respect of which a licence has been granted and is in force". A self-service vending machine must be located within the view of a responsible member of staff. All self-service machines must be token operated and staff members must be satisfied that the purchaser has attained the age of 18 years.

No tobacco advertising is permitted on self-service vending machines. Even the selection buttons must be devoid of any colouring, logos, emblems or trademarks that represent a tobacco manufacturer. To remove any confusion in relation to this restriction, it has been decided that only simple black and white text on the selection buttons can inform the customer of the products available. If necessary, a menu board (as above) may also be provided to the customer to illustrate the products available. This board may not be on permanent display and must be provided only when requested by a particular customer.

Register of retailers

Anyone who wishes to sell tobacco products must register with the Office of Tobacco Control. If you have never sold cigarettes before and you plan to start doing so, you must register with the Office of Tobacco Control before you begin. A person, who is already selling tobacco products must apply to register before 1 October 2009.

The cost of registration for all applicants currently stands at €50. Where an applicant is registering more than one premises or self-service vending machine, a single application fee of €50 is payable. In relation to vending machines, both the operator of the machine and the holder of the licence (publican’s on-licence, club licence etc) for the premises in which the machine is located must both register and pay the fee.

What are the consequences for breaching the legislation?

A person who is registered with the Office of Tobacco Control and who is convicted of an offence under the Public Health (Tobacco) Acts 2002 and 2004, will be removed from the register for a period of three months if summarily convicted, or one year if convicted on indictment. If a retailer sells tobacco during a period in which they have been removed from the register for committing an offence, they shall not be eligible to be registered to sell tobacco for a period of six months if summarily convicted, or for a period of 15 months on indictment.

Following the period of removal, retailers who wish to resume selling tobacco products must submit a new application and registration fee to the Office of Tobacco Control. As a breach of these regulations is so serious for a retailer, all staff should receive specific training and should sign a training record to be kept with their personnel file. 

Quick compliance checklist

• • Have you filed your registration to The Office of Tobacco control together with the €50 registration fee? If not do so before the 1 October 2009
• • Have all forms of tobacco related advertisements been removed from you store? Remember this includes both external and internal advertising, both of which are very widely defined in the legislation. Look out for promotional clocks and till mats
• • Have you placed all tobacco products in a closed container which is only accessible by your retail staff?
• • If the dispenser itself is visible to customers, have you ensured that the tobacco selection buttons do not display tobacco product trademarks, emblems, marketing images or logos?
• • Have you trained all your staff regarding the new legislation and explained to them the serious consequences of non-compliance?
• • Have you obtained a pictorial list of all the tobacco products you sell, in accordance with the guidelines?
• • Have you ensured this pictorial list is never left on display and only taken out to show a customer who expresses an intention to purchase a tobacco product? Make sure staff understand that the list cannot be left lying around
• • Have you put on display the retail sign prescribed by the Office of Tobacco Control in accordance with their guidelines?
• • Have you ensured that this is the one and only sign on display regarding the sale of tobacco products and that no effort has been made to draw attention to the sign by light or other means?
• • Have you familiarised yourself with the implications of being removed from the register for non-compliance with the new legislation?
• • If you are the owner of a self-service vending machine, have you taken all precautions to ensure compliance with advertising and display restrictions?
• • If the owner of a self service vending machine, have you ensured its location is at all times within the view of a responsible member of staff?

Inspections of registered sellers of tobacco products are being carried out regularly by HSE environmental health officers.

© Matheson Ormsby Prentice 2009
The information in this article is not intended to provide, and does not constitute, legal or any advice on any particular matter, and is provided for general information purposes only.
This legal update is complied by Lorraine Compton from the Retail and Leisure Group of leading corporate law firm, Matheson Ormsby Prentice. The firm’s Retail and Leisure Group comprises lawyers who provide a one-stop shop designed to cater for every aspect of the retail and leisure business.
For more detailed legal advice please contact Lorraine Compton at Matheson Ormsby Prentice, Solicitors, 70 Sir John Rogerson’s Quay Dublin 2, by telephone on 01 232 2000 or email at lorraine.compton@mop.ie
Further information on the firm is available on www.mop.ie 

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