Up in smoke
This July new restrictions on the advertising, display, and sale of tobacco products in retail premises will come into effect. As of this summer it will be an offence to sell tobacco if not registered with the Office of Tobacco Control
7 January 2009
In October 2008, the Minister for Health and Children passed orders to bring into force certain provisions of the Public Health (Tobacco) Act 2002 (as amended) ("the Act"). These provisions relate to the advertising, display and sale of tobacco products in retail premises, and will come into operation on 1 July 2009.
In essence, as of 1 July 2009, there will be a ban on all in-store and point-of-sale advertising of tobacco products, and on the display of tobacco products within retail premises. In addition, retailers wishing to sell tobacco products will have to be registered in order to do so.
What are tobacco products?
Cigarettes, cigars and smoking tobacco are of course the most common tobacco products, but are not the only ones. A tobacco product is any product consisting of tobacco that is intended to be smoked, or any cigarette paper, tube or filter manufactured for use in the smoking of tobacco, other than a medicinal product.
What is this new register?
As of 1 July 2009, the Office of Tobacco Control ("the OTC") must establish and maintain a register of all retailers who sell or who propose to sell tobacco products. Such retailers will be obliged to register with the OTC, and will have to pay a registration fee of €50.
Retailers should note that it will be an offence to sell tobacco products in a retail premises that is not registered with the OTC. The potential penalties are a fine of up to €3,000 and/or 3 months’ imprisonment for a summary conviction, and up to €125,000 and/or two years’ imprisonment for conviction on indictment. In other words, if you want to sell tobacco products, you absolutely must register.
Any person who does not yet sell tobacco products but who proposes to sell them will have to register with the OTC before they can sell such products.
The application to register must be made in writing and will have to specify each address at which the applicant carries on the sale of tobacco products. If a retailer has more than one store, he or she will therefore need to register in respect of all his/her stores in which tobacco products are sold.
What about existing retailers already selling tobacco products?
Where an existing retailer sells tobacco products immediately prior to 1 July 2009 at a particular premises, then that retailer can continue to sell those products at that premises until 30 September 2009. Nonetheless, such retailers must apply to register with the OTC by 30 September 2009.
Furthermore, provided such retailers lodge their application to register with the OTC in respect of the premises prior to 30 September 2009, then they will continue to enjoy a dispensation enabling them to sell tobacco products at that premises up until 30 September 2010, even where their registration has not yet been completed, unless of course they are convicted of an offence under the Act.
What happens if a retail premises is removed from the OTC’s register?
Removal from the OTC’s register is a nightmare scenario for any retailer. If a registered retailer is convicted of an offence under the Act, and the offence relates to or is committed at a premises used for the sale of tobacco products, then that retailer’s name is removed from the register in respect of that premises for a period of three months in the case of a summary conviction, and for one year where convicted on indictment.
Likewise, where a retailer who has applied to be registered is convicted, and the registration has not yet been completed, the registration cannot be completed for at least three months from the date of a summary conviction and for at least one year from the date of a conviction on indictment.
Furthermore, if the conviction takes place between 1 July 2009 and 30 September 2009, and the retailer in question sold tobacco products immediately prior to 1 July 2009, then that retailer cannot be registered for a period of 6 months in the case of a summary conviction, and for 15 months where convicted on indictment.
The effect of a premises being removed from the register is that the retailer in question cannot legally sell tobacco products at that premises whilst the premises remains off the register. This serves as a stark warning to retailers, as it means that one single infringement could lead to a shop being prohibited from selling tobacco products for a period of three months or possibly even longer.
The new regime that is due to come into force on 1 July 2009 will have an enormous impact on retailers. Retailers should make sure they are properly prepared in advance of this date, and that they are aware of their new obligations, as a failure to comply could result in them being banned from selling tobacco products for a considerable period of time.
New prohibitions under the Act coming into force on 1 July 2009
1. Prohibition on advertising of tobacco products
As of 1 July 2009, retailers selling tobacco products may not advertise them in their store, as to do so would be an offence on the part of the occupier, manager and any other person for the time being in charge of the premises.
Any form of recommendation of a tobacco product by a retailer to the public will be deemed to be an advertisement, and therefore an offence, in particular if it involves a statement of the name of a tobacco manufacturer or brand of tobacco, or a display of a trademark, emblem or logo relating to that product.
This means that retailers will not be able to display tobacco product names or logos in their shop in a manner that is visible to customers. As a result, certain items that one regularly sees in stores at present will no longer be allowed, such as clocks emblazoned with tobacco product insignias.
Failure to comply will constitute an offence and the potential penalties are a fine of up to €3,000 and/or 3 months’ imprisonment for a summary conviction, and up to €125,000 and/or two years’ imprisonment for conviction on indictment. The Court may also order the confiscation of any tobacco product to which the offence relates.
2. Prohibition on display of tobacco products
From 1 July 2009, tobacco products may not be sold by means of self-service. Specialist tobacco shops may apply for a dispensation from this provision. In addition, a further exception is to be made in respect of vending machines located in either licensed premises or registered clubs.
Aside from those limited exceptions, from 1 July 2009, tobacco products will have to be kept in a closed container or dispenser that is not visible or accessible to customers. In other words, retailers will have to keep all tobacco products behind the counter out of their customers’ reach and sight. Retailers will also only be able to show a customer one packet of each tobacco product sold, on request, or a menu board with one image of each tobacco product sold, with the mandatory health warnings displayed on each image, and the image of the product cannot be greater in size than the actual product itself.
As mentioned earlier, retailers selling tobacco products must register with the OTC, and any container or dispenser holding the tobacco products in the store will have to be marked with the retailer’s registration number.
The potential penalties for convictions in respect of the display of tobacco products are a fine of up to €3,000 and/or 3 months’ imprisonment for a summary conviction.
3. Prohibition of certain marketing practices
Certain marketing practices will be prohibited from 1 July 2009. Amongst other things, it will be an offence to:
• sell cigarettes by retail in packets containing fewer than 20 cigarettes
• sell oral smokeless tobacco products
• sell confectionery normally intended for sale to children, where the confectionery in question has been manufactured in such a way as to resemble a type of tobacco product
4. Prohibition on certain assertions about tobacco products
From 1 July 2009, it will be an offence to sell tobacco products where the packaging asserts any of the following:
• that smoking does not cause life-threatening diseases
• that the smoking of a particular brand or class of product is less harmful than others
• that the smoking of tobacco products is not addictive
• that filters attached to a tobacco product make it less harmful than tobacco products without filters.