Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023

PART 1 Preliminary and General

1. Short title, collective citation and commencement

1. (1) This Act may be cited as the Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023.

(2) The Public Health (Tobacco) Acts 2002 to 2015 and this Act may be cited as the Public Health (Tobacco) Acts 2002 to 2023.

(3) 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 and different provisions.

2. Interpretation

2. In this Act—

“Act of 1997” means the Taxes Consolidation Act 1997;

“Act of 2002” means the Public Health (Tobacco) Act 2002;

“Act of 2015” means the Public Health (Standardised Packaging of Tobacco) Act 2015;

“applicant” has the meaning assigned to it by section 11;

“child” means a person who is under the age of 18 years;

“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 2014^1 on 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;

“Executive” means the Health Service Executive;

“licence” means a licence issued in accordance with section 13;

“licence number” means a number allocated to a licence by the Executive in accordance with section 13;

“licensee” means a person to whom a licence is issued;

“Minister” means the Minister for Health;

“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 within subparagraph (i),

or

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

“prescribe” means prescribe by regulations made by the Minister;

“register” has the meaning assigned to it by section 23;

“Regulations of 2016” means the European Union (Manufacture, Presentation and Sale of Tobacco and Related Products) Regulations 2016 (S.I. No. 271 of 2016);

“relevant officer” means in relation to a body corporate—

(a) a person who exercises control (within the meaning of section 11 or 432 of the Act of 1997) in relation to the body,

(b) a member (including the chairperson) of the body, or the board or board of directors of the body, or any other person acting in such capacity, or

(c) the managing director or chief executive officer of the body, or any other person acting in such capacity;

“relevant substance” means a substance which is not tobacco but which consists of, or contains, nicotine;

“sale by retail” includes sale by retail online;

“sell”, in relation to a tobacco product or a nicotine inhaling product, means sell by retail and includes—

(a) offer or expose for sale,

(b) invite the making by a person of an offer to purchase,

(c) distribute free of charge, and

(d) supply for any of these purposes (whether or not for profit);

“tax clearance certificate” means a certificate under section 1095 of the Act of 1997;

“tobacco control legislation” means—

(a) this Act,

(b) the Act of 2002,

(c) the Act of 2015, and

(d) the Regulations of 2016;

“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.

3. Application of Act

3. (1) This Act applies to the sale by retail of tobacco products and nicotine inhaling products.

(2) This Act does not apply to medical devices or medicinal products.

(3) In this section—

“medical device” means a medical device which falls within any definition of “medical device” in—

(a) Article 1 of Council Directive 90/385/EEC of 20 June 1990^2 on the approximation of the laws of the Member States relating to active implantable medical devices, as amended by Directive 2007/47/EC of the European Parliament and of the Council of 5 September 2007^3 amending Council Directive 90/385/EEC on the approximation of the laws of the Member States relating to active implantable medical devices, Council Directive 93/42/EEC concerning medical devices and Directive 98/8/EC concerning the placing of biocidal products on the market,

(b) Article 1 of Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998^4 on in vitro diagnostic medical devices, or

(c) Article 2 of Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017^5 on medical devices, amending Directive 2001/83/EC, Regulation (EC) No. 178/2002 and Regulation (EC) No. 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC;

“medicinal product” has the same meaning as it has in Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001^6 on the Community code relating to medicinal products for human use.

4. Residence of body corporate or unincorporated body of persons

4. For the purpose of this Act, a company within the meaning of the Companies Act 2014 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.

5. Regulations

5. (1) The Minister may make regulations for the purposes of this Act, including regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations under this Act may contain such incidental, supplementary and consequential provisions as appears to the Minister to be necessary or expedient for the purposes of the regulations.

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

6. Expenses

6. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of monies provided by the Oireachtas.

7. Service of documents

7. A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name, and may be so 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 address;

(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. Remote sale of tobacco products or nicotine inhaling products

8. (1) Subject to subsection (2), the sale of a tobacco product or a nicotine inhaling product is deemed, for the purposes of this Act, to take place at the premises where an agreement is made for the sale of the tobacco product or nicotine inhaling product concerned.

(2) Where—

(a) the premises where the agreement for the sale of the tobacco product or nicotine inhaling product concerned is made is not in the State, and

(b) the premises from which the tobacco product or nicotine inhaling product concerned is despatched are in the State,

the sale is deemed, for the purposes of this Act, to take place at the premises from which the tobacco product or nicotine inhaling product concerned is despatched.

9. Repeals and revocations

9. (1) The following provisions of the Act of 2002 are repealed:

(a) section 5A;

(b) section 37;

(c) section 45.

(2) The following Regulations are revoked:

(a) Public Health (Tobacco) (Registration) Regulations 2009 (S.I. No. 41 of 2009);

(b) Public Health (Tobacco) (Self Service Vending Machines) Regulations 2009 (S.I. No. 42 of 2009);

(c) Public Health (Tobacco) (Retail Sign) Regulations 2009 (S.I. No. 57 of 2009).

10. Review of operation of Act

10. The Minister shall, 12 months after the passing of this Act, carry out a review of the operation of this Act.

PART 2 Licence for Sale of Tobacco Products or Nicotine Inhaling Products

11. Application for licence

11. (1) Subject to subsections (2), (3), (4) and (5), a person (in this Act referred to as the “applicant”) who, on or after the commencement of this section, wishes to sell by retail—

(a) tobacco products,

(b) nicotine inhaling products, or

(c) tobacco products and nicotine inhaling products,

on or from a premises or from a website (or otherwise online) shall apply to the Executive for a licence authorising such sale by retail by the person in respect of the premises or website (or otherwise online) as is specified in the application.

(2) A person who wishes to sell by retail the products referred to in subsection (1) on or from more than one premises or website shall make a separate application under subsection (1) for a license in respect of each such premises or website, as the case may be.

(3) A person may not apply for a licence unless he or she is aged 18 years or over.

(4) A person may not apply for a licence for the sale by retail of tobacco products or nicotine inhaling products on or from an excluded premises.

(5) Where a licence is suspended by order of the court under section 39, the licensee concerned may not make an application under subsection (1) during that period of suspension.

(6) An application under this section shall be made in such form and manner as may be prescribed and shall specify—

(a) the name of the applicant and address at which he or she ordinarily resides, or in the case of a company, the registered office of the company,

(b) where the applicant proposes to carry on the sale by retail of tobacco products or nicotine inhaling products concerned under a trading name, that trading name and legal identity,

(c) where the applicant is a body corporate, the name of each relevant officer and address at which he or she ordinarily resides and the address of his or her principal office or place of business,

(d) where the application is in respect of a premises, the address of the premises,

(e) where the application is in respect of online sales, the name and electronic address or web address of any website (or other location online) operated and maintained by the applicant through which the tobacco products or nicotine inhaling products are to be sold,

(f) whether the application relates to the sale by retail of tobacco products, nicotine inhaling products or both, and

(g) such other information as may be prescribed.

(7) An application for a licence shall be accompanied by—

(a) the fee prescribed under section 18,

(b) a tax clearance certificate in force relating to the applicant,

(c) a declaration signed by the applicant, or a relevant officer as the case may be, that, as at the date of the declaration, the applicant has complied with all requirements imposed on the applicant by tobacco control legislation, and

(d) such other information as may be prescribed.

(8) At any time after receiving an application and before determining the application, the Executive may by notice in writing, require the applicant to provide additional information to it and where the Executive does so, the applicant shall comply with that requirement.

(9) An applicant who knowingly or recklessly provides false or misleading information to the Executive under subsection (6), (7)(b), (7)(c), (7)(d) or (8) commits an offence.

(10) A person who, immediately before the commencement of this section, was registered under section 37 of the Act of 2002 to carry on, in whole or in part, sale by retail of tobacco products shall, if he or she wishes to continue to so carry on such business on or after such commencement, apply not later than—

(a) 6 months, or

(b) the expiration of such longer period as may be prescribed,

after such commencement to the Executive for a licence under this section, and where the person does so, that person may continue to carry on, in whole or in part, sale by retail of tobacco products in accordance with such registration pending a decision by the Executive on that application.

(11) A person who, immediately before the commencement of this section, was carrying on the sale by retail of nicotine inhaling products, shall, if he or she wishes to continue the sale of such products after such commencement, apply not later than—

(a) 6 months, or

(b) the expiration of such longer period as may be prescribed,

after such commencement to the Executive for a licence under this section, and where the person does so, that person may continue to carry on the sale by retail of nicotine inhaling products pending a decision by the Executive on that application.

(12) In this section, “excluded premises” means a temporary or moveable premises other than a ship that carries passengers on commercial voyages between a place in the State and a place outside the State.

12. Determination of application for licence

12. (1) This section applies where the Executive receives an application under section 11(1).

(2) Where an application is made in accordance with section 11, the Executive shall grant a licence to the applicant in accordance with the application where it is satisfied that the application complies with the requirements of that section.

(3) The Executive shall refuse to grant a licence where—

(a) the application is not made in accordance with section 11 or otherwise does not comply with the requirements of that section,

(b) the applicant has, after the commencement of this section, been convicted of 2 or more category A offences (within the meaning of section 39), or

(c) it has reasonable grounds to believe that the application, the declaration under section 11(7)(c) or any document or information accompanying the application, contains information that is false or misleading.

(4) Where the Executive grants a licence, the Executive shall, as soon as practicable after doing so, issue the licence under section 13 to the applicant and shall notify the applicant accordingly.

(5) Where the Executive refuses to grant a licence, the Executive shall, not later than 14 days after the date of such refusal, notify the applicant in writing of—

(a) the refusal of the application and the reasons for it, and

(b) the applicant’s right to appeal the refusal in accordance with section 16.

13. Issue of licence

13. (1) Where the Executive grants a licence under section 12 or renews a licence under section 15, or where section 16(8) applies, it shall, as soon as practicable, issue to the applicant a licence in the prescribed form specifying the date on which the licence takes effect.

(2) A licence issued under subsection (1) shall specify—

(a) the name of the licensee,

(b) the licence number,

(c) where the licence is in respect of premises, the name and address of the premises,

(d) where the licence is in respect of online sales, the name and electronic address or web address of any website (or other location online) operated and maintained by the licensee through which the tobacco products or nicotine inhaling products are sold,

(e) whether the licence relates to tobacco products or nicotine inhaling products or both,

(f) the date on which the licence takes effect in accordance with subsection (1),

(g) the date on which the licence expires in accordance with section 14, and

(h) such other matters as may be prescribed.

14. Duration of licence

14. (1) Subject to subsection (2), a licence has effect for a period of 12 months, beginning on the date specified by the Executive under section 13(1).

(2) A licence shall not have effect for any period during which it is suspended by virtue of section 39.

15. Renewal of licence

15. (1) Subject to subsection (2), a licensee may apply to the Executive for renewal of a licence.

(2) An application under subsection (1) shall be made in the prescribed form and in the prescribed manner and be accompanied by—

(a) the licence number,

(b) a further declaration signed by the applicant or, where the applicant is a body corporate, a relevant officer, that, as at the date of the declaration, the applicant has complied with all requirements imposed on the applicant by tobacco control legislation,

(c) where there has been a change in any information given in an application for a licence in accordance with section 11, details of any such change in information,

(d) a tax clearance certificate in force relating to the licensee,

(e) the prescribed fee, and

(f) such other information as may be prescribed.

(3) Where the application for a renewal is made in accordance with this section, the Executive shall renew the licence in accordance with the application where it is satisfied that the application complies with the requirements of this section.