Public Health (Tobacco) (Amendment) Act 2004

1 Definition.

1.—In this Act “Principal Act” means the Public Health (Tobacco) Act 2002.

2 Amendment of section 2 of Principal Act.

2.—Section 2 of the Principal Act is amended, in subsection (1), by—

(a) the deletion of the definition of “advertisement”,

(b) the insertion of the following definitions:

“ ‘advertising’ has the same meaning as it has in the Directive of 2003, and cognate words shall be construed accordingly;

‘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;

‘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;”,

(c) the substitution of the following definition for the definition of “public service vehicle”:

“‘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;”,

and

(d) the substitution of the following definition for the definition of “tobacco product”:

“‘tobacco product’ means—

(a) any product consisting, in whole or in part, of tobacco, that is intended to be smoked,

(b) a tobacco product within the meaning of the Finance (Excise Duty on Tobacco Products) Act 1977 (inserted by section 86(1) of the Finance Act 1997), or

(c) any cigarette paper, tube or filter manufactured for use in the smoking of tobacco,

other than a medicinal product within the meaning of the Irish Medicines Board Act 1995.”.

3 Amendment of section 5 of Principal Act.

3.—Section 5 of the Principal Act is amended by—

(a) the deletion in subsection (2) of “, 47”,

(b) the insertion of the following subsection:

“(2A) A person guilty of an offence under section 47 shall be liable on summary conviction to a fine not exceeding €3,000.”,

(c) the insertion, in subsection (3), of “33A,” after “section 33,”, and

(d) the substitution of “€3,000” for “€1,900” in each place that it occurs.

4 Repeals, saver and revocation.

4.—The Principal Act is amended by the substitution of the following section for section 8:

“8.—(1) The following enactments are 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—

(a) subsection (3), and

(b) subsection (5) of section 47 (inserted by section 16 of the Public Health (Tobacco) (Amendment) Act 2004),

continue in force after such commencement.

(3) The Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Regulations 1991 (S.I. No. 326 of 1991) are revoked.”.

5 Prohibition of advertising of tobacco products.

5.—The Principal Act is amended by the substitution of the following sections for section 33:

“33.—Subject to section 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.—(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 contravenes subsection (1) shall be guilty of an offence.

(3) Where in relation to a premises to which subsection (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.”.

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

6.—The Principal Act is amended by the substitution of the following section for section 35:

“35.—Section 33 shall not apply to the advertising of a tobacco product in a publication that—

(a) is—

(i) printed and published, and

(ii) primarily intended for sale or distribution,

in a state other than a Member State of the European Communities, or

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

7 Prohibition of sponsorship.

7.—The Principal Act is amended by the substitution of the following section for section 36:

“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.

(3) It shall be an offence for a person to receive financial or other assistance to which subsection (2) applies.

(4) In this section ‘sponsorship’ has the same meaning as it has in the Directive of 2003.”.

8 Register of retailers of tobacco products.

8.—The Principal Act is amended by the substitution of the following section for section 37:

“37.—(1) The Office shall, on the commencement of this section, cause to be established and maintained a register of all persons who carry on, in whole or in part, the business of selling tobacco products by retail (hereafter in this Act referred to as ‘the register’).

(2) The Office may, for the purpose of defraying any expense incurred in establishing or maintaining the register, charge each person registered under this section a fee of such amount as may be determined by the Minister (in this section referred to as the ‘appropriate fee’).

(3) Where a person proposes to carry on, in whole or in part, the business of selling tobacco products by retail he or she shall, in accordance with this section, apply to the Office to be registered in the register.

(4) A person who immediately before the commencement of this section was carrying on, in whole or in part, the business of selling tobacco products by retail shall, if he or she wishes to continue carrying on that business, apply, not later than 3 months after such commencement, to the Office to be registered in the register.

(5) An application under this section shall—

(a) be in writing,

(b) specify the name of the applicant and the address at which he or she ordinarily resides,

(c) specify the address of each premises at which the applicant carries on, in whole or in part, the business of selling tobacco products by retail,

(d) contain such other information as may be prescribed by regulations made by the Minister, and

(e) be accompanied by the appropriate fee.

(6) As soon as practicable after an application under this section, in respect of which there is compliance with subsection (5), is received by the Office, the Office shall, subject to subsection (9), enter in the register—

(a) the applicant's name and the address at which he or she ordinarily resides,

(b) the address of each premises at which he or she carries on, in whole or in part, the business referred to in subsection (1),

(c) a number from which it will be possible to identify the applicant (in this Act referred to as the ‘registration number’),

(d) the names of the persons who supply the applicant with tobacco products in connection with his or her business, and

(e) such other particulars as the Office considers appropriate,

and a person shall, upon the Office so entering the matters specified in this subsection in relation to him or her, be registered for the purposes of this section.

(7) If a person, who is registered under this section, is convicted of an offence under this Act, and the offence relates to, or was committed on, premises in which the person carries on, in whole or in part, the business of selling tobacco products by retail (being premises in respect of which the person is for the time being so registered) the Office shall, in circumstances where the person is so registered in respect of premises other than the first-mentioned premises, remove the address of the first-mentioned premises from the register, and such person shall not, before the expiration of—

(a) the period of 3 months (in the case of a person convicted summarily of an offence), or

(b) the period of one year (in the case of a person convicted of an offence on indictment),

from the address being so removed, be eligible to be registered under this section in respect of the premises concerned, and the Office shall not, until such expiration, perform, in relation to any application by the person under this section, any function under subsection (6).

(8) If a person, who is registered under this section, is convicted of an offence under this Act, and the offence relates to, or was committed on, premises in which the person carries on, in whole or in part, the business of selling tobacco products by retail (being the only premises in respect of which the person is for the time being so registered) the Office shall remove from the register that person's name, the address of those premises, the registration number in respect of him or her and any other particulars entered in the register relating to him or her, and such person shall not, before the expiration of—

(a) the period of 3 months (in the case of a person convicted summarily of an offence), or

(b) the period of one year (in the case of a person convicted of an offence on indictment),

from his or her being so removed, be eligible to be registered under this section in respect of those premises, and the Office shall not, until such expiration, perform, in relation to any application by the person under this section, any function under subsection (6).

(9) Where a person, who has made an application under subsection (3) in respect of which the Office has not yet performed a function under subsection (6), is convicted of an offence under this Act, that person shall not be eligible to be registered under this section before the expiration of—

(a) the period of 3 months (in the case of a person convicted summarily of an offence), or

(b) the period of one year (in the case of a person convicted of an offence on indictment),

from him or her being so convicted, and the Office shall not during that period perform any function under subsection (6) in relation to his or her application.

(10) Where a person to whom subsection (4) applies is convicted of an offence under this Act during the 3 months period referred to therein, he or she shall not be eligible to be registered under this section before the expiration of—

(a) the period of 6 months (in the case of a person convicted summarily of an offence), or

(b) the period of 15 months (in the case of a person convicted of an offence on indictment),

from the commencement of this section and the Office shall not during the said period of 6 months or the said period of 15 months, as the case may be, perform any function under subsection (6) in relation to an application under this section by him or her after his or her being so convicted.

(11) A person registered under this section shall, if a particular entered in the register in accordance with subsection (6) in relation to him or her ceases to be correct, so inform the Office as soon as may be.

(12) The Office shall upon becoming aware that any particular entered in the register is incorrect or has ceased to be correct make such alterations to the register as it considers necessary.

(13) A person who, in purported compliance with subsection (5), knowingly or recklessly provides information or a particular to the Office that is false or misleading in a material respect, or who believes any such information or particular provided by him or her, in purported compliance with that subsection, not to be true, shall be guilty of an offence.

(14) Subject to subsection (15), it shall be an offence for a person to sell a tobacco product, or cause a tobacco product to be sold, by retail.

(15) (a) It shall be lawful for a person to sell a tobacco product, or cause a tobacco product to be sold by retail, in accordance with this Act, from premises in respect of which he or she is registered under this section.

(b) It shall be lawful for a person who immediately before the commencement of this section carried on, in whole or in part, the business of selling tobacco products by retail to sell a tobacco product, or cause a tobacco product to be sold, by retail, in accordance with this Act, during the period of 3 months after such commencement, from premises (being premises in respect of which he or she is not registered under this section) in which, immediately before such commencement, he or she carried on such business.

(c) It shall be lawful for a person to whom paragraph (b) applies and who has made an application under subsection (4) in respect of premises to which that subsection applies to sell a tobacco product, or cause a tobacco product to be sold, by retail, in accordance with this Act, during the period of 12 months after the expiration of the period of 3 months referred to in that subsection, from such premises (being premises in respect of which he or she is not registered under this section).”.

9 Prohibition of certain marketing practices.

9.—The Principal Act is amended by the substitution of the following section for section 38:

“38.—(1) It shall be an offence for a person to sell cigarettes by retail other than in a packet containing not less than 20 cigarettes.

(2) It shall be an offence for a person to manufacture, import, supply, sell or invite an offer to purchase an oral smokeless tobacco product.

(3) It shall be an offence for a person to sell confectioneries normally intended for sale to children, that have been manufactured in such a way as to resemble in appearance a type of tobacco product.

(4) It shall be an offence for a person to—

(a) import,

(b) sell (by retail or otherwise), or

(c) otherwise supply to, or invite an offer to purchase by, any person,

a tobacco product, the packaging of which does not bear a warning in such form and of such a type as may be prescribed by regulations made by the Minister, that is intended to inform the public that the consumption of the product is injurious to health, and a statement containing such other information as may be so prescribed in such form as may be so prescribed.

(5) It shall be an offence for a person to—

(a) import,

(b) sell (by retail or otherwise), or

(c) otherwise supply to, or invite an offer to purchase by, any person,

a tobacco product, the packaging of which does not bear a number in such form as may be prescribed by regulations made by the Minister, that enables the lot or batch from which the product orginated and the date and place of its manufacture to be ascertained.

(6) Regulations under subsection (4) or (5) may be made for the purpose of giving effect to Article 5 of the Directive of 2001.

(7) It shall be an offence for a person to supply free of charge to a member of the public any tobacco product for the purpose of promoting the consumption of that product.

(8) It shall be an offence for a person to supply or sell to a member of the public any voucher, coupon or other document or thing (intended to be used as a substitute for money) for the purpose of its being—

(a) used as payment or payment in part, or

(b) otherwise exchanged,

for a tobacco product.

(9) It shall be an offence for a person to sell a tobacco product by retail, or supply a tobacco product to, or invite an offer to purchase by, a member of the public of a tobacco product where part of the consideration to be given to the purchaser is a gift, token, trading stamp, coupon or other document or thing that may be exchanged for or used as payment or payment in part for certain goods.

(10) The Minister may, for the purpose of ensuring that the price at which a tobacco product is sold does not constitute a sales promotion device, by regulations, make such provision in relation to the price at which tobacco products or tobacco products of such a class as may be specified in the regulations may be sold as he or she considers appropriate.

(11) A person who sells or invites an offer to purchase a tobacco product in contravention of regulations under subsection (10) shall be guilty of an offence.”.

10 Amendment of section 39 of Principal Act.

10.—Section 39 of the Principal Act is amended by the insertion of the following subsection:

“(1A) Regulations under this section may be made for the purpose of giving effect to Article 3 of the Directive of 2001.”.

11 Requirement to provide information on and test tobacco products.

11.—The Principal Act is amended by the substitution of the following section for section 40:

“40.—(1) A manufacturer or importer of tobacco products shall provide the Office with such information (within such period as it may, from time to time by notice in writing, require) relating to—

(a) the tobacco products concerned,