Reform history

> (c) a medicinal product (within the meaning of the Human Medicines Regulations 2012 ([S.I. 2012/1916](https://www.legislation.gov.uk/uksi/2012/1916))),

> (d) a medical device (within the meaning of the Medical Devices Regulations 2002 ([S.I. 2002/618](https://www.legislation.gov.uk/uksi/2002/618))).

> (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—

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

- (2) The italic heading immediately preceding section 4 of the 2010 Act becomes “*Sale and purchase of tobacco and nicotine vapour products*”.

> (a) steps that should be taken to establish a customer’s age,

> (b) documents that may be shown to the person selling a tobacco product, cigarette papers or a nicotine vapour product as evidence of a customer’s age,

- (2) In section 40(4) of the 2010 Act (subordinate legislation subject to affirmative procedure) before “section 24” insert—

> - section 4B(4)

.

> (2) For the purposes of subsection (1), “responsible person” means—

> (a) where the sale is at premises which are noted in a registered person’s entry in the Register, the registered person for those premises,

> (b) where the sale is at premises which are not noted in a registered person’s entry in the Register—

> (a) is made at premises which are noted in a registered person’s entry in the Register, and

- (2) In subsection (1), “nicotine vapour products” has the meaning given in section 35A of the 2010 Act.

- (1) In section 10(1) of the 2010 Act (duty to keep Register), after “tobacco” insert “or nicotine vapour product”.

> - “nicotine vapour product business” means a business involving the sale of nicotine vapour products by retail,

> - “tobacco or nicotine vapour product business” means a business which involves (either or both) a tobacco business or a nicotine vapour product business,

- (a) in subsection (2), after “tobacco”, in both places where it occurs, insert “or nicotine vapour product”,

- (c) in subsection (3)(b), for “retailing banning order, from carrying on a tobacco” substitute “and nicotine vapour product banning order from carrying on a tobacco or nicotine vapour product”,

> (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—

> (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.

- (a) in subsection (2), for “retailing” substitute “and nicotine vapour product”,

- (b) in subsection (3)(b), after “tobacco” insert “or nicotine vapour product”, and

- (c) in subsection (5)(b), after “tobacco” insert “or nicotine vapour product”.

- (a) in subsection (1), after “tobacco” insert “or nicotine vapour product”,

- (b) in subsection (2), after “tobacco” insert “or nicotine vapour product”,

- (i) after “tobacco” insert “or nicotine vapour product”,

- (ii) in paragraph (a), for “the person has been the subject of” substitute “there have been”, and

- (i) for “person is the subject of a relevant enforcement action if the person”, substitute “relevant enforcement action occurs where a person mentioned in subsection (4A)”,

- (f) in subsection (6), for “retailing” substitute “and nicotine vapour product”.

- (a) in subsection (1), for “retailing”, in both places where it occurs, substitute “and nicotine vapour product”,

- (b) in subsection (2), after “tobacco”, in each place where it occurs, insert “or nicotine vapour product”,

- (c) in subsection (3)(b), for “retailing” substitute “and nicotine vapour product”,

- (d) in subsection (4), for “retailing” substitute “and nicotine vapour product”, and

- (e) in subsection (5), for “retailing” substitute “and nicotine vapour product”.

- (3) In section 17 of the 2010 Act (appeals), for “retailing”, in both places where it occurs, substitute “and nicotine vapour product”.

- (4) In section 18(1) of the 2010 Act (notification to Scottish Ministers), for “retailing” substitute “and nicotine vapour product”.

- (a) in subsection (1)(a), for “retailing” substitute “and nicotine vapour product”,

- (b) in subsection (3), for “retailing”, in both places where it occurs, substitute “and nicotine vapour product”, and

- (c) for subsection (4), for “or smoking related products” substitute “, smoking related products or nicotine vapour products”.

- (a) in subsection (1), after “tobacco” insert “or nicotine vapour product”,

- (b) in subsection (2), after “Register” insert “as premises at which the person carries on a tobacco business (or both a tobacco business and a nicotine vapour product business)”,

> (2A) A registered person who carries on a nicotine vapour product business at premises other than those noted in the person’s entry in the Register as premises at which the person carries on a nicotine vapour product business (or both a tobacco business and a nicotine vapour product business) commits an offence.

- (d) in subsection (4), for “retailing” substitute “and nicotine vapour product”, and

- (e) in subsection (6)(a), after “(2)” insert “, (2A)”.

In section 35(1) of the 2010 Act (interpretation), in the definition of “premises”, for “, vessel, or moveable structure” substitute “or moveable structure (and, for this purpose, “vehicle” includes any aircraft or ship, boat or other water-going vessel, other than one of a prescribed description)”.

In section 33(1) of the 2010 Act (presumption as to contents of container), for “5 or 6” substitute “4A, 4B, 4C, 5, 6, 6A or 9”.

- (1) The title of Chapter 1 of Part 1 of the 2010 Act becomes “Display, sale and purchase”.

- (2) The title of section 10 of the 2010 Act becomes “Register of tobacco and nicotine vapour product retailers”.

- (3) The title of section 15 of the 2010 Act becomes “Tobacco and nicotine vapour product banning orders”.

- (4) The title of section 16 of the 2010 Act becomes “Tobacco and nicotine vapour product banning orders: ancillary orders”.

- (5) The title of section 17 of the 2010 Act becomes “Tobacco and nicotine vapour product banning orders etc.: appeals”.

- (6) The title of section 18 of the 2010 Act becomes “Tobacco and nicotine vapour product banning orders etc.: notification to Scottish Ministers”.

- (7) The title of section 19 of the 2010 Act becomes “Tobacco and nicotine vapour product banning orders: display of notices”.

- (8) The italic heading immediately preceding section 15 of the 2010 Act becomes “*Tobacco and nicotine vapour product banning orders*”.

- (9) The italic heading immediately preceding section 21 of the 2010 Act becomes “Register of tobacco and nicotine vapour product retailers: miscellaneous and supplementary”.

- (10) The title of Chapter 2 of Part 1 of the 2010 Act becomes “Register of tobacco and nicotine vapour product retailers”.

- (11) The title of Part 1 of the 2010 Act becomes “Tobacco and nicotine vapour products etc.”.

In this Part, “the 2010 Act” means the Tobacco and Primary Medical Services (Scotland) Act 2010.

- “nicotine vapour product” has the meaning given in section 35A of the 2010 Act,

- “nicotine vapour product advert” means a published advertisement or a display whose purpose or effect is to promote a nicotine vapour product,

- “nicotine vapour product brandsharing” means the use of any name, emblem or other feature where— the name, emblem or other feature is used in connection with— any service or product (other than a nicotine vapour product) and the name, emblem or other feature used is the same as, or similar to, a name, emblem or other feature connected with a nicotine vapour product, or any nicotine vapour product and the name, emblem or other feature used is the same as, or similar to, a name, emblem or other feature connected with any service or product other than a nicotine vapour product, and the purpose or effect of the use is to promote a nicotine vapour product,

- “public” means the public at large, or any section of the public or individually selected members of the public,

- “published” means published, distributed or otherwise made available to the public, in any form and by any means.

- “coupon” means a document or other thing which, by itself or not, can be redeemed for a product or service or for cash or for any other benefit,

- “nicotine vapour product” has the meaning given in section 35A of the 2010 Act,

- “public” means the public at large, or any section of the public or individually selected members of the public.

- “nicotine vapour product” has the meaning given in section 35A of the 2010 Act,

- “sponsorship agreement” means an agreement under which a party to it makes a contribution towards something, whether the contribution is in money or takes any other form (for example, the provision of services or of contributions in kind).

> - “hospital” means a health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978),

> - “hospital building” means a building situated on hospital grounds,

> - “hospital grounds”, in relation to a hospital, means land in the vicinity of the hospital and associated with it.

> (b) provide that land of a specified description is or is not to be considered “hospital grounds” and otherwise make further provision to elaborate the meaning of “hospital grounds” for the purposes of this Part,

- (3) In section 5(1) (proceedings for offences), for “or 3” substitute “, 3, 4A, 4B or 4C(5)”.

- (4) The section title of section 5 becomes “**Proceedings for offences under sections 1 to 3 and 4A to 4C**”.

- (5) In section 6(2) (fixed penalties), for “or 3” substitute “, 3, 4A, 4B or 4C(5)”.

- (b) in subsection (3)(a)(i), for “or 3” substitute “, 3, 4A, 4B or 4C(5)”,

- (7) In section 40(3)(a) (regulations or orders), for “or 4(2) or (8)” substitute “, 4(2) or (8) or 4D(2)(a) or (4)(a)”.

- (a) in paragraph 1(1), after “premises” insert “or under section 4A within the no-smoking area outside a hospital”,

- (b) in paragraph 1(2), for “or 3” substitute “, 3, 4A, 4B or 4C(5)”,

- (c) in paragraph 1(3), for “or 3” substitute “, 3, 4A, 4B or 4C(5)”,

- (d) in paragraph 2, for “or 3” substitute “, 3, 4A, 4B or 4C(5)”,

- (e) in paragraph 4(1), for “or 3” substitute “, 3, 4A, 4B or 4C(5)”,

- (f) the title becomes “Fixed penalty for offences under sections 1, 2, 3, 4A, 4B and 4C(5)”.

- (ii) that outcome relates directly to the incident rather than to the natural course of the person’s illness or underlying condition.

- (i) an increase in the person’s treatment,

- (1) The “duty of candour procedure” means the actions to be taken by the responsible person in accordance with regulations made by the Scottish Ministers.

- (3) In this section “relevant person” means—

- (1) For the purposes of this Part, an “apology” means a statement of sorrow or regret in respect of the unintended or unexpected incident.

- (c) information about the responsible person’s policies and procedures in relation to the duty under section 21(1), including information about—

- (d) information about any changes to the responsible person’s policies and procedures as a result of incidents to which the duty under section 21(1) has applied, and

- (b) contain any information which, in the responsible person’s opinion, is likely to identify any individual.

- “the 1978 Act” means the National Health Service (Scotland) Act 1978,

- “care service” has the meaning given by section 47(1) of the Public Services Reform (Scotland) Act 2010, except that it does not include a service mentioned in paragraph (k) of that section (child minding),

- “health service” means— services under the health service continued under section 1 of the 1978 Act, and an independent health care service mentioned in section 10F(1) of the 1978 Act,

- “provide” in relation to a health service, a care service and a social work service means to carry on or manage such a service,

- “registered health professional” means a member of a profession to which section 60(2) of the Health Act 1999 applies,

- “responsible person” means— a Health Board constituted under section 2(1) of the 1978 Act, a person (other than an individual) who has entered into a contract, agreement or arrangement with a Health Board to provide a health service, the Common Services Agency for the Scottish Health Service constituted under section 10(1) of the 1978 Act, a person (other than an individual) providing an independent health care service mentioned in section 10F(1) of the 1978 Act, a local authority, a person (other than an individual) who provides a care service, an individual who provides a care service and who employs, or has otherwise made arrangements with, other persons to assist with the provision of that service (unless the assistance in providing that service is merely incidental to the carrying out of other activities), a person (other than an individual) who provides a social work service,

- “social work services” has the meaning given by section 48 of the Public Services Reform (Scotland) Act 2010.

- (a) an individual who has the care of another individual by virtue of being part of the care provider’s arrangements ill-treats or wilfully neglects that individual,

- (b) the care provider’s activities are managed or organised in a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected, and

- (2) An individual is “part of a care provider’s arrangements” where the individual—

- (a) a “relevant duty of care” means a duty owed in connection with providing, or arranging for the provision of, adult health care or adult social care,

- (1) In this Part, “care worker” means—

- (a) “employee” means an individual in paid employment, whether under a contract of service or apprenticeship or under a contract for services,

- (b) “volunteer” means a volunteer for a body, other than a public or local authority, the activities of which are not carried on for profit.

- (3) In this Part, “care provider” means—

- “adult health care” means a service for or in connection with the prevention, diagnosis or treatment of illness provided to an individual aged 18 or over— under the health service continued under section 1 of the National Health Service (Scotland) Act 1978, or by persons providing an independent health care service mentioned in section 10F(1) of that Act,

- “adult social care” means a service— in section 47(1)(a), (b), (d) or (m) of the Public Services Reform (Scotland) Act 2010 to the extent that the service is provided to an individual aged 18 or over, or in section 47(1)(g) or (j) of that Act to the extent that the service is provided to an individual aged 16 or over.

- (c) any deficiency in the care provider’s policies, systems or practices of which the relevant breach appears to the court to be an indication.

- (2) In section 108 (Lord Advocate’s right of appeal against disposal)—

- (b) in subsection (2)(b)(ii), for the words “or (cd)” substitute “, (cd), (ce) or (cf)”.

- (b) in subsection (4A)(b)(ii), for “or (cd)” substitute “ , (cd), (ce) or (cf)”.

- (a) in subsection (3)(b), for “2” substitute “5”,

> (4) In subsection 1(c), “provides care services” means anything done—

> (5) For the purposes of subsection (4), “care service” means a service mentioned in section 47(1)(a), (b), (d), (f), (g), (j) or (m) of the Public Services Reform (Scotland) Act 2010.