Tobacco and Primary Medical Services (Scotland) Act 2010

Part 1 — Tobacco and nicotine vapour products etc.

Chapter 1 — Display, sale and purchase

Display of tobacco products etc.

Prohibition of tobacco displays etc.

1

• (1) A person who in the course of business displays or causes to be displayed tobacco products or smoking related products in a place where tobacco products are offered for sale commits an offence.

• (2) A person does not commit an offence under subsection (1) if the display—

• (a) is in a specialist tobacconist,

• (b) does not include cigarettes or hand-rolling tobacco, and

• (c) complies with any prescribed requirements.

• (3) A person does not commit an offence under subsection (1) if—

• (a) the tobacco products or smoking related products are displayed in the course of a business involving the sale of tobacco products only to persons who carry on a tobacco business (or their employees), and

• (b) the display complies with any prescribed requirements.

• (4) The Scottish Ministers may provide in regulations that no offence is committed under subsection (1) in relation to a display of tobacco products or smoking related products which complies with requirements specified in the regulations.

• (5) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

• (6) For the purposes of subsection (1), a website is not a place.

• (7) In subsection (2), “specialist tobacconist” has the meaning given by section 6(2) of the Tobacco Advertising and Promotion Act 2002 (c.36).

Displays which are also advertisements

2

The Scottish Ministers may by regulations provide that a display of tobacco products or smoking related products which also amounts to an advertisement is to be treated for the purposes of offences under this Act and the Tobacco Advertising and Promotion Act 2002—

• (a) as an advertisement and not as a display, or

• (b) as a display and not as an advertisement.

Regulation of display of prices

3

• (1) The Scottish Ministers may by regulations impose requirements in relation to the display in the course of business of prices of tobacco products or smoking related products in a place where tobacco products are offered for sale.

• (2) For the purposes of subsection (1), a website is not a place but the regulations may otherwise provide for the meaning of “place” in that subsection.

• (3) A person who displays or causes to be displayed prices of tobacco products or smoking related products in breach of a requirement contained in the regulations commits an offence.

• (4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

• (5) The regulations may provide that a display of prices which also amounts to an advertisement is to be treated for the purposes of offences under this Act and the Tobacco Advertising and Promotion Act 2002—

• (a) as an advertisement and not as a display of prices, or

• (b) as a display of prices and not as an advertisement.

Sale and purchase of tobacco and nicotine vapour products

Sale of tobacco products to persons under 18

4

• (1) A person who sells a tobacco product or cigarette papers to a person under the age of 18 commits an offence.

• (2) It is a defence to a charge in proceedings against a person (“the accused”) under subsection (1) that—

• (a) the accused believed the person under the age of 18 (“the customer”) to be aged 18 or over, and

• (b) the accused had taken reasonable steps to establish the customer's age.

• (3) For the purposes of subsection (2)(b), the accused is to be treated as having taken reasonable steps to establish the customer's age if and only if—

• (a) the accused was shown any of the documents mentioned in subsection (4), and

• (b) that document would have convinced a reasonable person as to the customer's age.

• (4) The documents referred to in subsection (3)(a) are any document bearing to be—

• (a) a passport,

• (aa) a UK driving licence,

• (b) a European Union photocard driving licence, or

• (c) such other document, or a document of such description, as may be prescribed.

• (5) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Purchase of tobacco products by persons under 18

5

• (1) A person under the age of 18 who buys or attempts to buy a tobacco product or cigarette papers commits an offence.

• (2) It is not an offence under subsection (1) for a person under the age of 18 to buy or attempt to buy a tobacco product or cigarette papers if the person is authorised to do so by a council officer or a constable for the purpose of determining whether an offence is being committed under section 4.

• (3) A council officer or a constable may authorise a person under the age of 18 to buy or attempt to buy a tobacco product or cigarette papers only if satisfied that all reasonable steps have been or will be taken to avoid any risk to the welfare of the person.

• (4) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale.

Purchase of tobacco products on behalf of persons under 18

6

• (1) A person aged 18 or over who knowingly buys or attempts to buy a tobacco product or cigarette papers on behalf of a person under the age of 18 commits an offence.

• (2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Miscellaneous

Confiscation of tobacco products from persons under 18

7

• (1) Where a constable has reasonable grounds for suspecting that a person in a public place—

• (a) is under the age of 18, and

• (b) is in possession of a tobacco product or cigarette papers,

the constable may require the person to surrender the tobacco product or, as the case may be, the cigarette papers to the constable.

• (2) A constable making a requirement under subsection (1) may also require the person to supply the constable with the person's name and address.

• (3) Where a constable makes a requirement under subsection (1) the constable must inform the person concerned—

• (a) of the constable's suspicion, and

• (b) of the fact that failure to comply with a requirement made under subsection (1) or (2) is an offence.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) A person who fails to comply with a requirement made under subsection (1) or (2) commits an offence.

• (6) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.

• (7) The constable may dispose of any tobacco product or cigarette papers surrendered to the constable in such manner as the constable considers appropriate.

• (8) In this section “public place” includes—

• (a) any place to which the public have access for the time being (whether on payment of a fee or otherwise), and

• (b) any place to which the public do not have access but to which the person mentioned in subsection (1) has unlawfully gained access.

Display of warning statements

8

• (1) A person who carries on a tobacco business must display a notice in accordance with subsection (2) in any premises where that business is carried on.

• (2) The notice must—

• (a) contain the following statement— “ It is illegal to sell tobacco products to anyone under the age of 18 ”, and

• (b) be displayed in a prominent position in the premises where the statement is readily visible to persons at the point of sale of the tobacco products.

• (3) A person who fails, without reasonable excuse, to comply with subsection (1) commits an offence.

• (4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

• (5) The Scottish Ministers may prescribe the dimensions of the notice to be displayed in accordance with this section and the size of the statement to be displayed on it.

Prohibition of vending machines for the sale of tobacco products

9

• (1) A person who has the management or control of premises on which a vending machine is available for use commits an offence.

• (2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

• (3) In this section, “vending machine” means an automatic machine for the sale of tobacco or nicotine vapour products (regardless of whether the machine also sells other products).

Chapter 2 — Register of tobacco and nicotine vapour product retailers

Establishment

Register of tobacco retailers

10

• (1) The Scottish Ministers must keep a register of persons carrying on a tobacco or nicotine vapour product business (referred to in this Part as “the Register”).

• (2) In this Part, “registered” means entered in the Register, and “unregistered” is to be construed accordingly.

Registration

Application for registration and addition of premises etc.

11

• (1) A person may apply to the Scottish Ministers—

• (a) to be registered, or

• (b) to add further premises to the person's entry in the Register.

• (2) The application must—

• (a) state the name and address of the applicant,

• (b) where it is an application under subsection (1)(a), state the addresses of all premises at which the applicant proposes to carry on a tobacco or nicotine vapour product business,

• (c) where it is an application under subsection (1)(b), state the address of the further premises at which the applicant proposes to carry on a tobacco or nicotine vapour product business,

• (d) contain such other information as is prescribed, and

• (e) be made in such form and manner as is determined by the Scottish Ministers.

• (2A) An application under subsection (1) must state, in relation to each of the premises included in it, whether the applicant proposes to carry on—

• (a) a tobacco business at the premises,

• (b) a nicotine vapour product business at the premises, or

• (c) both a tobacco business and a nicotine vapour product business at the premises.

• (3) The Scottish Ministers must grant the application unless—

• (a) it does not comply with the requirements in subsection (2), or

• (b) at the time the application is made, the applicant is banned, under a tobacco and nicotine vapour product banning order from carrying on a tobacco or nicotine vapour product business at any premises specified in the application.

• (4) On granting an application under subsection (1)(a), the Scottish Ministers must enter the following information in the Register—

• (a) the name and address of the applicant,

• (b) the addresses of the premises at which the applicant proposes to carry on a tobacco or nicotine vapour product business, noting, in relation to each of the premises, whether the applicant proposes to carry on—

• (i) a tobacco business at the premises,

• (ii) a nicotine vapour product business at the premises, or

• (iii) both a tobacco business and a nicotine vapour product business at the premises, and

• (c) any other information which the Scottish Ministers consider appropriate.

• (5) On granting an application under subsection (1)(b), the Scottish Ministers must amend the applicant's entry in the Register so as to include the address of the further premises at which the applicant proposes to carry on a tobacco or nicotine vapour product business, noting, in relation to each of the premises, whether the applicant proposes to carry on—

• (a) a tobacco business at the premises,

• (b) a nicotine vapour product business at the premises, or

• (c) both a tobacco business and a nicotine vapour product business at the premises.

Certificates of registration

12

• (1) On granting an application under section 11(3) the Scottish Ministers must issue to the applicant a certificate of registration in respect of each premises stated in the application.

• (2) A certificate issued under subsection (1) must state whether the premises are noted in the applicant's entry in the Register as premises at which the person carries on—

• (a) a tobacco business,

• (b) a nicotine vapour product business, or

• (c) both a tobacco business and a nicotine vapour product business.

Changes to register

Duty to notify certain changes

13

• (1) A registered person must give the Scottish Ministers notice of—

• (a) a change in the person's name or address,

• (b) the fact that the person is no longer carrying on a tobacco business at an address noted in the person's entry in the Register.

• (c) the fact that the person is no longer carrying on a nicotine vapour product business at an address noted in the person's entry in the Register.

• (2) A notice under subsection (1) must be given within 3 months of the date of the change to which it relates.

Changes to and removal from Register

14

• (1) The Scottish Ministers may correct the Register (following notification under section 13 or otherwise) as they consider appropriate.

• (2) Where a tobacco and nicotine vapour product banning order is made against a registered person, the Scottish Ministers must amend the person's entry in the Register so as to remove references to the premises specified in the order.

• (3) The Scottish Ministers may remove a person's entry from the Register if—

• (a) as a result of a correction or amendment under subsection (1) or (2), there are no premises noted in the person's entry in the Register, or

• (b) they are not satisfied that the person is carrying on a tobacco or nicotine vapour product business.

• (4) Where the Scottish Ministers correct, amend or remove a person's entry in the Register under this section, they must—

• (a) as soon as reasonably practicable notify the person of the correction, amendment or, as the case may be, removal, and

• (a) if it is appropriate to do so, issue at the same time to the person a revised certificate of registration.

• (5) The Scottish Ministers must reinstate a person's entry in the register if—

• (a) the entry was removed under subsection (3)(b), and

• (b) the person notifies them no later than 28 days after notice of the removal is given under subsection (4)(a) that the person is still carrying on a tobacco or nicotine vapour product business.

• (6) A notice under subsection (4)(a) may be given—

• (a) by delivering it to the person,

• (b) by leaving it at the person's usual or last known address,

• (c) by sending it by post to the person at that address.

Tobacco and nicotine vapour product banning orders

Tobacco retailing banning orders

15

• (1) A council may apply to the sheriff for an order banning a person from carrying on a tobacco or nicotine vapour product business from premises within the council's area.

• (2) An application under subsection (1) must specify the premises from which the person is to be banned from carrying on a tobacco or nicotine vapour product business.

• (3) The sheriff may make an order banning the person from carrying on a tobacco or nicotine vapour product business at the premises specified in the order if satisfied, on the balance of probabilities, that—

• (a) there have been 3 or more relevant enforcement actions in respect of each premises specified in the order,

• (b) at least one of the actions occurred in the period of 2 months ending on the date the application was made,

• (c) the conduct to which the actions relate took place within a period of 2 years, and

• (d) the making of the order is necessary to prevent the commission of ... offences under Chapter 1 or 2.

• (4) A relevant enforcement action occurs where a person mentioned in subsection (4A) is—

• (a) issued with a fixed penalty notice (which is not subsequently withdrawn), ...

• (b) convicted of an offence under Chapter 1 or 2, or

• (c) convicted of an offence under section 92(1)(b) or (c) of the Trade Marks Act 1994 (unauthorised use of trade mark in relation to goods) in circumstances where the goods in question are, or include, tobacco products, smoking related products or nicotine vapour products.

• (4A) The persons are—

• (a) the person who is the subject of the application,

• (b) an employee or agent of that person.

• (5) An order made under this section has effect for the period (not exceeding 24 months) specified in the order beginning with the day the order is granted.

• (6) In this Part, an order made under this section is referred to as a “tobacco and nicotine vapour product banning order”.

Tobacco retailing banning orders: ancillary orders

16

• (1) This section applies where—

• (a) a council has applied for a tobacco and nicotine vapour product banning order in respect of a person (“P”), or

• (b) a tobacco and nicotine vapour product banning order has been made in respect of P.

• (2) A council may apply to the sheriff for an ancillary order—

• (a) banning P from—

• (i) being connected to a person carrying on a tobacco or nicotine vapour product business at the specified premises,

• (ii) seeking to control a person carrying on a tobacco or nicotine vapour product business at the specified premises,

• (b) where P is not an individual, banning any person connected to P from—