Public Health (Tobacco) Act 2002

PART 1 Preliminary and General

1. Short title and commencement.

1.—(1) This Act may be cited as the Public Health (Tobacco) Act 2002.

(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions and for the repeal of different enactments effected by subsection (1) of section 8 and the revocation of different (or different provisions of) regulations effected by subsection (3) of that section.

2. Interpretation.

2.—(1) In this Act, except where the context otherwise requires—

“Act of 1970” means the Health Act 1970;

“Act of 1978” means the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Act 1978;

“Act of 1988” means the Tobacco (Health Promotion and Protection) Act 1988;

F1["Act of 2015" means the Public Health (Standardised Packaging of Tobacco) Act 2015;]

F2["Act of 2023" means the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023;]

F3[…]

F4["advertising" has the same meaning as it has in the Directive of 2003, and cognate words shall be construed accordingly;]

“authorised officer” means a person appointed under section 48;

“chief executive” has the meaning assigned to it by section 28;

F5["cigarettes" has the same meaning as it has in Chapter 3 of Part 2 of the Finance Act 2005;]

“designated analyst” has the meaning assigned to it by section 51;

“designated laboratory” has the meaning assigned to it by section 51;

F4["Directive of 2001" means Directive No. 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products;]

F4["Directive of 2003" means Directive No. 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products, the text of which is set out in the Schedule to the Public Health (Tobacco) (Amendment) Act 2004;]

F2["electronic cigarette" has the same meaning as it has in Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014^7on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC;]

F2["Executive" means the Health Service Executive;]

“functions” includes powers and duties and references to the performance of functions include, as respects powers and duties, references to the exercise of the powers and the performance of the duties;

F6[…]

“licensed premises” has the same meaning as it has in the Intoxicating Liquor Act 1988;

F2["licensee" means a licensee within the meaning of section 2 of the Act of 2023;]

“Minister” means the Minister for Health and Children;

F2["nicotine inhaling product" means—

(a) an electronic cigarette, or

(b) any other product consisting of—

(i) a device (other than tobacco, cigarette paper or a device which is intended to enable the consumption of lit tobacco) which is intended to enable a relevant substance to be inhaled through a mouth piece (irrespective of whether the device would also enable any other substance to be so inhaled),

(ii) a cartridge which—

(I) may contain a relevant substance, and

(II) is intended to form part of a device that falls withinsubparagraph (i),

or

(iii) a relevant substance which is intended to be used in a device that falls withinsubparagraph (i);]

“Office” means the Office of Tobacco Control established under section 9;

F7["public service vehicle" means a mechanically propelled vehicle used for the carriage of persons for reward and having seating accomodation for more than 8 persons exclusive of the driver;]

“register” has the meaning assigned to it by section 37;

“registered club” has the same meaning as it has in the Registration of Clubs Acts; 1904 to 2000;

“registration number” has the meaning assigned to it by section 37;

F2["relevant substance" means a substance which is not tobacco but which consists of, or contains, nicotine;]

F2["sale by retail" includes sale by retail online;]

“smoke” in relation to a tobacco product, includes sniffing, chewing or sucking of such a product;

“specified place” has the meaning assigned to it by section 47;

“superannuation benefit” means a pension, gratuity or other allowance payable on resignation, retirement or death;

F8["tobacco product" means a product (other than a medicinal product (within the meaning of the Irish Medicines Board Act 1995))—

(a) that can be consumed and consists, even partly, of tobacco, whether genetically modified or not and includes a cigarette paper, tube or filter manufactured for use in the smoking of tobacco, and

(b) that is intended for sale by retail in the State;]

(2) In this Act—

(a) a reference to a Part or section is a reference to a Part or section of this Act, unless it is indicated that a reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and

(c) a reference to any enactment or regulations shall be construed as a reference to that enactment or those regulations, as the case may be, as amended, adapted or extended whether before or after the commencement of this subsection, by or under any subsequent enactment.

(3) For the purposes of this Act, a company within the meaning of the Companies Acts 1963 to 2001, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business in the State.

3. Orders and regulations.

3.—Every order (other than an order under section 1(2)) and regulation under this Act shall be laid by the Minister before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

4. Expenses.

4.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

5. Offences and penalties.

5.—(1) A person guilty of an offence under section 20 shall be liable on summary conviction to a fine not exceeding F9[€3,000], or to imprisonment for a term not exceeding 6 months, or to both.

(2) A person guilty of an offence under F11[section 37(13),43(3),43(4),45,46,48or54(9)] shall be liable on summary conviction to a fine not exceeding F9[€3,000], or to imprisonment for a term not exceeding 3 months, or to both.

F12[(2A) A person guilty of an offence undersection 47shall be liable on summary conviction to a fine not exceeding €3,000.]

(3) A person guilty of an offence under section 33, F12[33A,] 36, 37(14), 38, 39, 40, 42 or 53 shall be liable—

(a) on summary conviction to a fine not exceeding F9[€3,000], or to imprisonment for a term not exceeding 3 months, or to both, or

(b) on conviction on indictment to a fine not exceeding €125,000, or to imprisonment for a term not exceeding 2 years, or to both.

(4) Section 13 of the Criminal Procedure Act 1967, shall apply in relation to an offence under this Act as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (3)(a), and the reference in subsection (2)(a) of the said section 13 to the penalties provided for by subsection (3) shall be construed and have effect accordingly.

(5) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other officer of such body corporate or a person who was purporting to act in any such capacity, that officer or person shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(6) On conviction for an offence under this Act the court may, in addition to any other penalty, order any tobacco product or any apparatus, equipment or thing to which the offence relates to be forfeited.

5A. F13[Order of court consequent upon conviction of an offence.

5A.—F14[…]]

6. Proceedings.

6.—(1) Summary proceedings for an offence under this Act may be brought and prosecuted by the Office.

F15[(2) Summary proceedings for an offence under this Act may be brought and prosecuted by the Health Service Executive.]

(3) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, summary proceedings for an offence under this Act may be instituted not later than 12 months from the date on which the Office or F15[the Health Service Executive,] as may be appropriate, forms the opinion that there exists sufficient evidence to justify instituting proceedings for the offence concerned, but in no case shall such proceedings be brought after 5 years from the date of the alleged commission of the offence.

(4) References in section 382 of the Companies Act 1963, to a company shall, for the purposes of this Act, be construed as including references to a body corporate (whether or not a company within the meaning of that section) charged on indictment with an offence under this Act.

7. Service of documents.

7.—A notice or other document under this Act shall be addressed to the person concerned by name, and may be served on or given to the person in one of the following ways:

(a) by delivering it to the person.

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address,

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that F16[address,]

F17[(d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner.]

8. Repeals, saver and revocations.

8.—(1) The following enactments are hereby repealed, namely—

(a) the Act of 1978; and

(b) the Act of 1988.

(2) Notwithstanding subsection (1), regulations made under the Act of 1978 or the Act of 1988 that are in force immediately before the commencement of that subsection shall, subject to subsection (3), continue in force after such commencement.

(3) The following regulations are hereby revoked, namely—

(a) the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Regulations, 1991 (S.I. No. 326 of 1991); and

(b) the Tobacco (Health Promotion and Protection) Regulations, 1995 (S.I. No. 359 of 1995).

PART 2 Office of Tobacco Control

9. Establishment of Office of Tobacco Control.

9.—F19[…]

10. Functions of Office.

10.—F20[…]

11. Conferral of additional functions on Office.

11.—F21[…]

12. Membership of Office.

12.—F22[…]

13. Conditions of office of members of Office.

13.—F23[…]

14. Casual vacancies among members of Office.

14.—F24[…]

15. Remuneration of members of Office.

15.—F25[…]

16. Meetings and procedure.

16.—F26[…]

17. Membership of either House of Oireachtas or European Parliament.

17.—F27[…]

18. Disclosure by members of Office of certain interests.

18.—F28[…]

19. Disclosure by members of staff of certain interests.

19.—F29[…]

20. Prohibition of unauthorised disclosure of confidential information.

20.—F30[…]

21. Committees of Office.

21.—F31[…]

22. Tobacco Free Council.

22.—F32[…]

23. Grants to Office.

23.—F33[…]

24. Accounts and audits.

24.—F34[…]

25. Annual report.

25.—F35[…]

26. Power to borrow.

26.—F36[…]

27. Gifts.

27.—F37[…]

28. Chief executive.

28.—F38[…]

29. Staff.

29.—F39[…]

30. Remuneration of staff.

30.—F40[…]

31. Transfer of staff to Office.

31.—F41[…]

32. Superannuation.

32.—F42[…]

PART 3 Regulation and Control of Sale, Marketing and Smoking of Tobacco Products

33. Prohibition of advertising of tobacco products.

F43[33.—Subject tosection 35, a person who advertises, or causes the advertisement of, a tobacco product in contravention of the Directive of 2003 shall be guilty of an offence.]

33A. F44[Prohibition of advertising of tobacco products on retail premises.

33A.—(1) The advertisement of tobacco products in premises in which the business of selling tobacco products by retail is carried on in whole or in part is prohibited.

(2) A person who contravenessubsection (1)shall be guilty of an offence.

(3) Where in relation to a premises to whichsubsection (1)applies there is a contravention of that subsection, the occupier, manager and any other person for the time being in charge of the premises shall each be guilty of an offence.

(4) In this section, "advertisement" includes, in relation to a tobacco product, every form of recommendation of the product to the public and, in particular—

(a) (i) a statement of the name of a manufacturer or importer of a tobacco product, or the name of any brand of tobacco product, or

(ii) a statement of any trade description or designation, or a display or other publication of a trademark, emblem, marketing image or logo, by reference to which the product is marketed or sold,

in circumstances where such statement, display or publication may reasonably be regarded as a recommendation of the product to the public, and

(b) a statement of the properties of the product on a label, container, wrapper or package used for the product or in a leaflet, circular, pamphlet or brochure issued to the public or given to a purchaser of the product,

and cognate words shall be construed accordingly.]

34. Advertisements in foreign publications.

34.—F45[…]

35. Advertisements directed at persons engaged in the sale etc. of tobacco products.

F46[35.—(1) The advertising of a tobacco product in a publication that is—

(a) printed and published, and primarily intended for sale or distribution, in a state other than a Member State of the European Communities, or

(b) directed solely at persons who carry on, in whole or in part, the business of selling or distributing tobacco products,

is not prohibited.

(2)Section 33A(inserted by section 6 of the Public Health (Tobacco) (Amendment) Act 2004 ) shall not apply to the advertising of a tobacco product in premises specified in a certificate undersubsection (2)ofsection 44.

(3) (a)Section 33Ashall not apply to the display in duty free premises situated in an airport of a pictorial list consisting of visual images of packets of the tobacco products on sale at those premises, provided that—

(i) each such image is not greater in size than the size of the packet concerned,

(ii) the list does not contain more than one image of the same product, and

(iii) the list or each such image contains a warning in such form and of such a type as is specified in column 2 of Part 1 of Schedule 1 to the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations 2003 (S.I. No. 425 of 2003).

(b) In this subsection "duty free premises" means a tax warehouse within the meaning of Chapter 1 of Part 2 of the Finance Act 2001 in which tobacco products are sold by retail.

(4) Regulation 8 of the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Regulations 1991 (S.I. No. 326 of 1991) is amended by the deletion of subparagraph (c) of paragraph (2).]

36. Prohibition of sponsorship.

F47[36.—(1) A person who engages in sponsorship in contravention of the Directive of 2003 shall be guilty of an offence.

(2) It shall be an offence for a person to give financial or other assistance, or cause financial or other assistance to be given, to or for the benefit of a person, or for or in relation to an event or activity, in consideration of the—

(a) use, display or advertising by the person, or at the event or activity concerned,

(b) association with the person, event or activity, or

(c) promotion,

of a tobacco product, the name of a tobacco manufacturer or importer, the name of a brand of tobacco product or a trademark, emblem, marketing image or logo used in the marketing of a tobacco product.