Tobacco Advertising and Promotion Act 2002

Meaning of “tobacco advertisement” and “tobacco product”

1

In this Act—

• “tobacco advertisement” means an advertisement—whose purpose is to promote a tobacco product, orwhose effect is to do so, and

• “tobacco product” means a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed.

Prohibition of tobacco advertising

2

• (1) A person who in the course of a business publishes a tobacco advertisement, or causes one to be published, in the United Kingdom is guilty of an offence.

• (2) A person who in the course of a business prints, devises or distributes in the United Kingdom a tobacco advertisement which is published in the United Kingdom, or causes such a tobacco advertisement to be so printed, devised or distributed, is guilty of an offence.

• (3) Distributing a tobacco advertisement includes transmitting it in electronic form, participating in doing so, and providing the means of transmission.

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

Advertising: newspapers, periodicals etc

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If a newspaper, periodical or other publication (“the publication”) containing a tobacco advertisement is in the course of a business published in the United Kingdom—

• (a) any proprietor or editor of the publication is guilty of an offence,

• (b) any person who (directly or indirectly) procured the inclusion of the advertisement in the publication is guilty of an offence, and

• (c) any person who sells the publication, or offers it for sale, or otherwise makes it available to the public, is guilty of an offence.

Advertising: exclusions

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• (1) No offence is committed under section 2, 3 or 3A in relation to a tobacco advertisement—

• (a) if it is, or is contained in, a communication made in the course of a business which is part of the tobacco trade, and for the purposes of that trade, and directed solely at persons who—

• (i) are engaged in, or employed by, a business which is also part of that trade, and

• (ii) fall within subsection (2),

in their capacity as such persons,

• (b) if it is, or is contained in, the communication made in reply to a particular request by an individual for information about a tobacco product, or

• (c) if it is contained in a publication (other than in an in-flight magazine)–

• (i) which is printed outside the United Kingdom, and

• (ii) whose principal market is not the United Kingdom (or any part of the United Kingdom) .

• (d) if it is published by means of an information society service by a person who does not carry on business in the United Kingdom and it is not intended to be accessed principally by persons in the United Kingdom (or any part of the United Kingdom).

• (1A) Subsection (1)(b) applies to a communication made by means of an information society service only if the request was made—

• (a) by means of an information society service which does not advertise any tobacco product to persons—

• (i) who have not made such a request, or

• (ii) who have not initiated a process by which a tobacco product may be purchased by means of that service; or

• (b) without using an information society service.

• (1B) The supply of information to an individual is not a tobacco advertisement if—

• (a) an information society service provides a means by which tobacco products may be purchased which includes the provision of information about a tobacco product, and

• (b) the information becomes available only after the individual has initiated the process of making the purchase.

• (2) A person falls within this subsection if—

• (a) he is responsible for making decisions on behalf of the business referred to in subsection (1)(a)(i) about the purchase of tobacco products which are to be sold in the course of that business,

• (b) he occupies a position in the management structure of the business in question which is equivalent in seniority to, or of greater seniority than, that of any such person, or

• (c) he is the person who, or is a member of the board of directors or other body of persons (however described) which, is responsible for the conduct of the business in question.

• (3) The appropriate Minister may provide in regulations that no offence is committed under section 2 in relation to a tobacco advertisement which—

• (a) is in a place or ... where tobacco products are offered for sale, and

• (b) complies with requirements specified in the regulations.

• (4) The regulations may, in particular, provide for the meaning of “place” in subsection (3)(a).

• (5) The Schedule has effect in relation to the liability of information society service providers.

Advertising: defences

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• (1) A person does not commit an offence under section 2 , section 3(a) or (b) or section 3A(1)(a) ..., in connection with an advertisement whose purpose is to promote a tobacco product, if he did not know, and had no reason to suspect, that the purpose of the advertisement was to promote a tobacco product.

• (2) A person does not commit such an offence in connection with an advertisement whose effect is to promote a tobacco product if he could not reasonably have foreseen that that would be the effect of the advertisement.

• (3) A person does not commit an offence under section 2(2) , 3(a) or (b) or 3A(1)(a) if he did not know, and had no reason to suspect, that the tobacco advertisement would be published in the United Kingdom.

• (3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) A person does not commit an offence under section 2(2) of distributing or causing the distribution of a tobacco advertisement, otherwise than as mentioned in section 2(3), if he did not know, and had no reason to suspect, that what he distributed or caused to be distributed was, or contained, a tobacco advertisement.

• (5) In relation to a tobacco advertisement which is distributed as mentioned in section 2(3), a person does not commit an offence under section 2(2) of distributing it or causing its distribution if—

• (a) he was unaware that what he distributed or caused to be distributed was, or contained, a tobacco advertisement,

• (b) having become aware of it, it was not reasonably practicable for him to prevent its further distribution, ...

• (c) in relation to transmission by means of information society services, he did not carry on business in the United Kingdom at the relevant time, or

• (d) in relation to transmission by any other means of electronic transmission, he did not carry on business in the United Kingdom at the relevant time.

• (5A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) A person does not commit an offence under section 3(c) if he did not know, and had no reason to suspect, that the publication contained a tobacco advertisement.

Specialist tobacconists

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• (A1) The appropriate Minister may provide in regulations that no offence is committed under section 2 if the tobacco advertisement—

• (a) is in, or fixed to the outside of premises of, a specialist tobacconist in England and Wales or Northern Ireland,

• (b) is not for cigarettes or hand-rolling tobacco, and

• (c) complies with any requirements specified in the regulations.

• (1) A person does not commit an offence under section 2 if the tobacco advertisement—

• (a) was in, or fixed to the outside of the premises of, a specialist tobacconist,in Scotland

• (b) was not for cigarettes or hand-rolling tobacco, and

• (c) complied with any requirements specified by the appropriate Minister in regulations in relation to tobacco advertisements on the premises of specialist tobacconists.

• (2) A specialist tobacconist is a shop selling tobacco products by retail (whether or not it also sells other things) more than half of whose sales on the premises in question derive from the sale of cigars, snuff, pipe tobacco and smoking accessories.

• (3) The sales referred to in subsection (2) are to be measured by sale price—

• (a) during the most recent period of twelve months for which accounts are available, or

• (b) during the period for which the shop has been established, if it has not been established long enough for twelve months’ accounts to be available.

• (4) “Shop”, in subsections (2) and (3), includes a self-contained part of a shop; and, in that case, “premises” in subsections(A1), (1) and (2) means that self-contained part of the shop.

Developments in technology

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The Secretary of State may by order amend any provision of this Act if he considers it appropriate to do so in consequence of any developments in technology relating to publishing or distributing by electronic means.

Displays

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• (1) A person who in the course of a business displays or causes to be displayedin Scotland tobacco products or their prices in a place or on a website where tobacco products are offered for sale is guilty of an offence if the display does not comply with such requirements (if any) as may be specified by the appropriate Minister in regulations.

• (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) Nothing in subsection (1) makes it an offence for a service provider established outside the United Kingdom to do anything in the course of providing information society services.

• (3) The regulations may, in particular, provide for the meaning of “ place ” in subsection (1).

• (4) The regulations must make provision for a display which also amounts to an advertisement to be treated for the purpose of offences under this Act—

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

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

Prohibition of free distributions

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• (1) A person is guilty of an offence if in the course of a business he—

• (a) gives any product or coupon away to the public in the United Kingdom, or

• (b) causes or permits that to happen,

and the purpose or effect of giving the product or coupon away is to promote a tobacco product.

• (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) It does not matter whether the product or coupon accompanies something else, or is given away separately.

• (3) No offence is committed under subsection (1) if—

• (a) the business referred to in subsection (1) is part of the tobacco trade,

• (b) the product or coupon is given away for the purposes of that trade,

• (c) each person to whom it is given—

• (i) is engaged in, or employed by, a business which is also part of the tobacco trade, and

• (ii) falls within subsection (4), and

• (d) the product or coupon is given to each such person in his capacity as such a person.

• (4) A person falls within this subsection if—

• (a) he is responsible for making decisions on behalf of the business referred to in subsection (3)(c)(i) about the purchase of tobacco products which are to be sold in the course of that business,

• (b) he occupies a position in the management structure of the business in question which is equivalent in seniority to, or of greater seniority than, that of any such person, or

• (c) he is the person who, or is a member of the board of directors or other body of persons (however described) which, is responsible for the conduct of the business in question.

• (5) A person does not commit an offence under this section—

• (a) where it is alleged that the purpose of giving the product or coupon away was to promote a tobacco product, if he did not know and had no reason to suspect that that was its purpose, or

• (b) where it is alleged that the effect of giving the product or coupon away was to promote a tobacco product, if he could not reasonably have foreseen that that would be its effect.

• (5A) Nothing in subsection (1) makes it an offence for a service provider established outside the United Kingdom to do anything in the course of providing information society services.

• (6) “Coupon” means a document or other thing which (whether by itself or not) can be redeemed for a product or service or for cash or any other benefit.

• (7) The Secretary of State may make regulations providing for this section to apply to making products or coupons available for a nominal sum or at a substantial discount as it applies to giving them away.

• (8) If regulations under subsection (7) provide for this section to apply to making products or coupons available at a substantial discount, the regulations must provide for the meaning of “substantial discount”.

• (9) The regulations may provide that this section is to apply in that case with such modifications (if any) specified in the regulations as the Secretary of State considers appropriate.

Prohibition of sponsorship

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• (1) A person who is party to a sponsorship agreement is guilty of an offence if the purpose or effect of anything done as a result of the agreement is to promote a tobacco product in the United Kingdom.

• (2) A sponsorship agreement is an agreement under which, in the course of a business, 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).

• (3) A person does not commit an offence under this section—

• (a) where it is alleged that the purpose of what was done as a result of the agreement was to promote a tobacco product in the United Kingdom, if he did not know, and had no reason to suspect, that that was its purpose, or

• (b) where it is alleged that the effect of what was done as a result of the agreement was to promote a tobacco product in the United Kingdom, if he could not reasonably have foreseen that that would be its effect.

• (4) A person does not commit an offence under this section if he did not know and had no reason to suspect that the contribution referred to in subsection (2) was made in the course of a business.

Brandsharing

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• (1) The Secretary of State may by regulations make provision prohibiting or restricting, in such circumstances and subject to such exceptions as may be specified in the regulations, the use—

• (a) in connection with any service or product (other than a tobacco product), of any name, emblem or other feature of a description specified in the regulations which is the same as, or similar to, a name, emblem or other feature so specified which is connected with a tobacco product, or

• (b) in connection with any tobacco product, of any name, emblem or other feature of a description specified in the regulations which is the same as, or similar to, a name, emblem or other feature so specified which is connected with any service or product other than a tobacco product.

• (2) Provision made by virtue of subsection (1) may prohibit or restrict only that use whose purpose is to promote a tobacco product, or whose effect is to do so.

• (3) If regulations under this section provide for a prohibition or restriction to be subject to an exception, the regulations may also make such provision as the Secretary of State considers appropriate for a corresponding exception to have effect for the purposes of offences under section 2, 3,3A, 7A, 7C, 7D, 8, 9 or 10.

• (4) A person who contravenes a prohibition or restriction contained in regulations made under this section is guilty of an offence.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) Nothing in subsection (4) makes it an offence for a service provider established outside the United Kingdom to do anything in the course of providing information society services.

Television and radio broadcasting

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• (1) In this section “the 1990 Act” means the Broadcasting Act 1990 (c. 42) and “the 1996 Act” means the Broadcasting Act 1996 (c. 55).

• (2) This Act does not apply in relation to anything included in a service to which any of subsections (3) to (6) apply.

• (3) This subsection applies to —

• (a) a service falling within section 211(1) of the Communications Act 2003 (independent television services regulated by the Office of Communications) which is not an additional television service (within the meaning of Part 3 of that Act); and

• (b) an additional television service comprised in the public teletext service (within the meaning of that Part).

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

• (5) This subsection applies to a service which—

• (a) falls within section 245(1) of the Communications Act 2003 (independent radio services regulated by the Office of Communications); but

• (b) is not a digital additional sound service (within the meaning of Part 3 of that Act).

• (6) This subsection applies to a service provided by the British Broadcasting Corporation or Sianel Pedwar Cymru (the Welsh Authority referred to in section 56 of the 1990 Act).

Enforcement

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• (1) For the purposes of this Act “enforcement authority” means—

• (a) in England and Wales, a local weights and measures authority,

• (b) in Scotland, a local weights and measures authority, and

• (c) in Northern Ireland, a district council.

• (2) It is the duty of an enforcement authority to enforce within its area the provisions of this Act and regulations made under it.

• (3) The appropriate Minister may direct, in relation to cases of a particular description or a particular case, that any duty imposed on an enforcement authority in England and Wales , Northern Ireland or Scotland by subsection (2) shall be discharged by the appropriate Minister and not by the enforcement authority.

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

• (5) The Secretary of State may take over the conduct of any proceedings which are—