Public Health (Tobacco) Act 2008 (NSW)

Public Health (Tobacco) Act 2008 No 94 An Act to regulate the sale, supply, advertising and promotion of tobacco products; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Public Health (Tobacco) Act 2008. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act (1) The object of this Act is to reduce the incidence of smoking and other consumption of tobacco products and non-tobacco smoking products, particularly by young people, in recognition of the fact that the consumption of those products adversely impacts on the health of the people of New South Wales and places a substantial burden on the State's health and financial resources. (2) This Act aims to achieve that object by— (a) regulating the packaging, advertising and display of tobacco products and non-tobacco smoking products, and (b) prohibiting the supply of tobacco products and non-tobacco smoking products to children, and (c) reducing the exposure of children to environmental tobacco smoke and aerosols or vapours from vaping goods. 4 Definitions (1) In this Act— brand name includes any part of a brand name. certificate of authority, for an inspector, means the certificate of authority issued to the inspector under section 43A(3). display, in relation to a tobacco advertisement, includes cause or permit to be displayed. exercise a function includes perform a duty. function includes a power, authority or duty. inspector means an inspector appointed under section 43A. non-tobacco smoking product means any product (other than a tobacco product) that is intended to be smoked, and includes any product known or described as herbal cigarettes. occupier, in relation to premises or a part of premises, means— (a) a person who has the right to occupy the premises or part to the exclusion of the owner, or (b) the person who is the owner of the premises or part if there is no person with a right to occupy the premises or part to the exclusion of the owner, even if the premises are, or the part is, vacant. pack includes cause or permit to be packed. package includes— (a) a box, carton, cylinder, packet, pouch or tin, or (b) a wrapping other than a transparent outer wrapping. premises means— (a) a building or other structure on land, or (b) vacant land, or (c) a vessel, or (d) an aircraft. public place means a place, vehicle or vessel that the public, or a section of the public, is entitled to use or that is open to, or is being used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise). Secretary means the Secretary of the Ministry of Health. sell includes— (a) barter or exchange, or (b) offer or expose for sale, barter or exchange, or (c) keep for sale or have in possession for sale, or (d) supply, or offer to supply, in circumstances in which the supplier derives, or would derive, a direct or indirect pecuniary benefit, or (e) supply, or offer to supply, gratuitously, but with a view to gaining or maintaining custom or otherwise with a view to commercial gain. smoking accessory includes cigarette papers, pipes, cigarette holders, hookahs, water pipes or any other smoking implement. tobacco advertisement means writing, or any still or moving picture, sign, symbol or other visual image or message or audible message, or a combination of two or more of them, that gives publicity to, or otherwise promotes or is intended to promote— (a) the purchase or use of a tobacco product, or (b) the trademark or brand name, or part of a trademark or brand name, of a tobacco product. tobacco product means tobacco, or a cigarette or cigar, or any other product containing tobacco and designed for human consumption or use. tobacco vending machine means a machine, device or contrivance from which tobacco products or non-tobacco smoking products can be obtained by an operation that involves inserting money, or a token or object, into the machine, device or contrivance, whether or not some other action is required to activate the machine. trademark includes any part of a trademark. vending machine token means a token that is designed to be inserted into an tobacco vending machine to enable the purchase or supply of tobacco products or non-tobacco smoking products. word includes symbol. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of this Act— (a) every sale that is not a sale by wholesale or otherwise for the purposes of resale is taken to be a sale by retail, and (b) a sale is presumed to be a sale by retail unless it is established that the sale is a sale by wholesale or otherwise for the purposes of resale. (3) Notes included in this Act do not form part of this Act. Part 2 Tobacco and other smoking products and sales Division 1 Tobacco packaging 5 Meaning of "health warning" In this Part, health warning means a health warning that meets the requirements of Parts 2 and 9 of the Competition and Consumer (Tobacco) Information Standard 2011 made under the Competition and Consumer Act 2010 of the Commonwealth to the extent that those requirements relate to labelling, marking, display, position, prominence and rotation. 6 Certain sales prohibited (1) A person must not sell a tobacco product that is not in the package in which it was packed by the manufacturer. (2) A person must not sell cigarettes as individual items or in a package containing fewer than 20. (3) This section does not apply to the sale of single cigars. (4) For the purposes of subsection (1), a quantity of tobacco product that exceeds the amount prescribed by the regulations is presumed to be for the purposes of sale if— (a) it is on premises where tobacco products are being sold, and (b) it is not in the package in which it was packed by the manufacturer. Any such presumption is rebuttable. Maximum penalty— (a) for a corporation—7,000 penalty units, or (b) for an individual—1,400 penalty units. 7 Packing and sale of tobacco product without health warning prohibited (1) A person must not pack a tobacco product into a package in which the product is to be sold unless the package is marked with a health warning. (2) A person must not sell a tobacco product unless the package in which the product is sold is marked with a health warning. (3) This section does not apply to the sale or packing of single cigars. (4) For the purposes of subsection (2), a quantity of tobacco product that exceeds the amount prescribed by the regulations is presumed to be for the purposes of sale if— (a) it is on premises where tobacco products are being sold, and (b) it is not in packaging marked with a health warning. Any such presumption is rebuttable. Maximum penalty— (a) for a corporation—7,000 penalty units, or (b) for an individual—1,400 penalty units. 7A Powers of inspector to seize and dispose of tobacco products exceeding prescribed amounts (1) An inspector may seize any tobacco product that the inspector reasonably believes contravenes section 6 (1) or 7 (2) if— (a) it is on premises where tobacco products are being sold, and (b) the quantity of tobacco product exceeds the amount prescribed by the regulations for the purposes of section 6 (4) or 7 (4) (as the case requires). (2) Any tobacco product seized under this section may, at the option of the inspector who made the seizure or of any inspector acting in his or her place, be detained in the place, vehicle or vessel where it was found or be removed to another place and detained there. (3) If the tobacco product is to be detained in the place, vehicle or vessel where it was found, the inspector may— (a) place it in a room, compartment or cabinet in that place, vehicle, or vessel, and (b) mark, fasten and seal the door or opening providing access to that room, compartment or cabinet. (4) A person must not retake or attempt to retake any tobacco product seized under this section or resist or attempt to prevent such a seizure. Maximum penalty— (a) in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or (b) in the case of a corporation, 1,000 penalty units for a first offence or 2,000 penalty units for a second or subsequent offence. (5) The seizure of tobacco products under this section does not subject the State, the Minister, the Secretary, an inspector or any other person to any action, liability, claim or demand. (6) Any tobacco products seized under this section must be returned to the person from whom they were seized (or to such other person as appears to the inspector to be entitled to them) if— (a) the person from whom they were seized makes an application to the Secretary within 28 days after seizure to have the tobacco products returned, and (b) the Secretary is satisfied that the tobacco products were, at the time they were seized, for personal use and not in the person's possession, custody or control for the purposes of sale. (7) An inspector is required to dispose of the tobacco products seized under this section in any manner that the inspector considers appropriate if— (a) the person from whom they were seized makes an application to the Secretary within 28 days after seizure to have the tobacco products returned and the Secretary is satisfied that the tobacco products were, at the time they were seized, not for personal use but in the person's possession, custody or control for the purposes of sale, or (b) the person from whom the tobacco products were seized does not make an application under subsection (6). (8) A person who is not an inspector may exercise the functions of an inspector under this section if the person— (a) is appointed as an inspector under the Poisons and Therapeutic Goods Act 1966, and (b) is on the premises in accordance with that Act. 8 Prohibited words (1) A person must not— (a) pack a tobacco product into a package in which the product is to be sold, or (b) sell a tobacco product in a package, if the package is marked with, or accompanied by, any material that contains any prohibited words. Maximum penalty— (a) for a corporation—7,000 penalty units, or (b) for an individual—1,400 penalty units. (2) For the purposes of this section, the prohibited words are— (a) "non-injurious", "non-hazardous", "harmless to man" and "harmless to woman", and (b) words of similar import to those specified in paragraph (a), and (c) words that directly or by implication contradict, qualify or modify a health warning that is marked, or required to be marked, on the package. Division 2 Sale and display of tobacco and other smoking products 8A (Repealed) 9 Display of tobacco products, non-tobacco smoking products and smoking accessories (1) A person who is the occupier of premises on which tobacco products or non-tobacco smoking products are sold must ensure that members of the public cannot see any of those products, or any smoking accessories, from inside or outside the premises. Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation. (2) This section does not apply to— (a) the display of tobacco products, non-tobacco smoking products or smoking accessories to a customer of the business concerned at his or her request, or (b) the display of tobacco products, non-tobacco smoking products or smoking accessories by a customer of the business concerned, or (c) the display of tobacco products, non-tobacco smoking products or smoking accessories in such other circumstances as may be prescribed by the regulations as exempt from this section. Note. Lead-in periods for offences under this section are provided for existing businesses (see clause 5 of Schedule 1). 10 Tobacco products, non-tobacco smoking products and smoking accessories to be sold from one place on premises (1) The occupier of premises on which tobacco products or non-tobacco smoking products are sold must ensure that those products, and any smoking accessories, are sold from only one point of sale on those premises. Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation. (2) For the purposes of this section, a point of sale includes a cash register but does not include a tobacco vending machine. 11 Sale of tobacco products by certain means and from certain premises prohibited (1) A person (the vendor) must not carry a tobacco product in any public place for the purpose of the sale of the product by retail to persons in the place. (2) A person must not cause or permit a vendor to carry a tobacco product in contravention of subsection (1) on premises under the person's control. (3) If a vendor contravenes subsection (1)— (a) a person who is the employer of the vendor in the person's capacity as vendor, or (b) a person who has entered into a contract with the vendor in the performance of which the vendor engaged in the activity that constituted the contravention, is also guilty of an offence. (4) A person must not sell a tobacco product by retail from— (a) any booth, tent or other temporary enclosure (including a market stall or stand), whether or not part of the booth, tent or enclosure is permanent, or (b) any mobile structure, vehicle or vessel. (5) A person must not cause or permit another person to sell a tobacco product in contravention of subsection (4)— (a) on premises under the person's control, or (b) on premises being used for a concert or other event organised by the person. Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation. Division 3 Tobacco vending machines 12 Places where tobacco vending machines may be placed (1) A person who owns or is the lessee of a tobacco vending machine must not place the vending machine, or cause or permit the vending machine to be placed, in any premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products unless the vending machine is placed in an area of the premises that is— (a) a bar area of a hotel or club premises within the meaning of the Liquor Act 2007, or (b) a bar area of a casino within the meaning of the Liquor Act 2007 as applied by the Casino Control Act 1992, or (c) a gaming machine area within the meaning of the Gaming Machines Act 2001. (2) A person who owns or is the lessee of a tobacco vending machine must not place the vending machine, or cause or permit the vending machine to be placed, in any of the following premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products if, as a result, more than one tobacco vending machine would be situated on those premises— (a) a hotel (within the meaning of the Liquor Act 2007), (b) club premises (within the meaning of the Liquor Act 2007), (c) a casino (within the meaning of the Casino Control Act 1992), including premises to be considered to form part of the casino by an order under section 89 (3) of that Act. Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in any other case. Note. Continuing offences against subsections (1) and (2) are dealt with in section 52. Note. Lead-in periods for offences under this section are provided in relation to tobacco vending machines already situated in premises (see clause 6 of Schedule 1). 13 Operation of tobacco vending machines to be controlled by staff A person who owns or is the lessee of a tobacco vending machine must not place the vending machine, or arrange for or permit the vending machine to be placed, in any premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products unless— (a) the vending machine can only be activated by a member of staff of the hotel, club or casino in which the vending machine is situated, whether by remote control or some other means, or (b) a person intending to obtain products from the vending machine is required to use a vending machine token that is only available from a member of staff of the hotel, club or casino in which the vending machine is situated. Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation. Note. Part 4 (Protection of juveniles) contains offences relating to the supply of tokens for vending machines to minors. Note. Continuing offences against this section are dealt with in section 52. Note. Lead-in periods for offences under this section are provided in relation to tobacco vending machines already situated in premises. (See clause 6 of Schedule 1.) 14 Regulation of product display on tobacco vending machines (1) A person who owns or is the lessee of a tobacco vending machine situated in premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products must ensure that a statement in the form (if any) prescribed by the regulations is kept conspicuously displayed on the front of the vending machine. (2) A person who owns or is the lessee of a tobacco vending machine in New South Wales must ensure that— (a) the tobacco products contained in the vending machine are not displayed so as to be in view of members of the public, and (b) no information about tobacco products, or representation of a tobacco product or package of a tobacco product, is displayed on the vending machine other than permissible information. (3) For the purposes of this section, permissible information that may be displayed on a tobacco vending machine is— (a) any information, statement or symbol required by law to be displayed on the vending machine, and (b) the name and description of the tobacco products for sale in the vending machine, and their price, displayed in black writing on a white background and in letters or figures of not more than 1 centimetre in width and 1 centimetre in height. Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation. 15 Responsibilities of occupiers for vending machines (1) If the owner or lessee of a tobacco vending machine contravenes a provision of this Division in relation to the tobacco vending machine, the occupier of the premises on which the vending machine was situated at the time of the contravention is taken to have contravened the same provision unless the occupier proves that— (a) the vending machine was placed on the premises in compliance with this Division and the occupier could not by the exercise of due diligence have prevented the contravention, or (b) the vending machine was placed and retained on the premises without the occupier's knowledge or consent. (2) If a person sells or displays tobacco products or non-tobacco smoking products by means of a tobacco vending machine in contravention of a provision of this Act, the occupier of the premises on which the vending machine was situated at the time of the contravention is taken to have contravened the same provision unless the occupier proves that— (a) the vending machine was placed on the premises in compliance with this Division and the occupier could not by the exercise of due diligence have prevented the contravention, or (b) the vending machine was placed and retained on the premises without the occupier's knowledge or consent. (3) The occupier of premises may be proceeded against and convicted under a provision of this Act by virtue of this section whether or not the owner or lessee of the tobacco vending machine, or person who sold or displayed the tobacco products or non-tobacco smoking products, has been proceeded against or convicted under the provision. (4) This section is not affected by the terms of any agreement or other arrangement with respect to the use or operation of the tobacco vending machine or the sale or display of tobacco products or non-tobacco smoking products by means of the machine (including an agreement or other arrangement entered into before the commencement of this section). Part 3 Advertising and promotion of tobacco products 15A (Repealed) 16 Certain advertising prohibited (1) A person must not, in New South Wales and for any direct or indirect benefit, display a tobacco advertisement in, or so that it can be seen or heard from, a public place or a place prescribed by the regulations. (2) A person must not, in New South Wales— (a) distribute to the public any unsolicited object that constitutes or contains a tobacco advertisement, or (b) sell, hire or supply for any direct or indirect benefit any object to any person (other than a person, or the employee of a person, who is a manufacturer, distributor or retailer of a tobacco product) if the object constitutes or contains a tobacco advertisement. (3) This section does not apply in relation to any of the following— (a) anything done by means of a radio or television broadcast, (b) a tobacco advertisement in or on a newspaper or book— (i) printed and published outside New South Wales, or (ii) printed and published before 17 December 1991, unless the sole or main purpose of the newspaper or book is the promotion or publicising of the purchase or use of a tobacco product or a trademark or brand name of a tobacco product, (c) (Repealed) (d) a tobacco advertisement that is an incidental accompaniment to the subject of a film, video tape or live stage performance unless the sole or main purpose of the film, video tape or performance is the promotion or publicising of the purchase or use of a tobacco product or a trademark or brand name of a tobacco product, (e) the display of retail prices and names of tobacco products within a retail outlet, (f) an invoice, statement, order, letterhead, business card, cheque, manual or other document that is ordinarily used in the course of the business of a manufacturer or distributor of a tobacco product. (4) (Repealed) (5) In any proceedings for an offence under this section, if there is present in the relevant tobacco advertisement, or the relevant object alleged to constitute or contain a tobacco advertisement— (a) the name of a person who manufactures or distributes any tobacco product, or (b) a trademark of which a person who manufactures or distributes any tobacco product is the registered owner or the authorised user within the meaning of the Trade Marks Act 1995 of the Commonwealth, or (c) a brand name, used by a person who manufactures or distributes any tobacco product, it is to be presumed, until the contrary is proved, that that person displayed the tobacco advertisement, or distributed, sold, hired or supplied the object, for a direct or indirect benefit. (6) In any proceedings for an offence under this section, if the thing that is alleged to constitute a tobacco advertisement contains the trademark or brand name of a tobacco product, it is to be presumed, until the contrary is proved, to be designed to promote or publicise the tobacco product to which it relates. (7) In this section— book includes any printed material in any language. newspaper includes a copy of any magazine, journal or periodical or a copy of any other publication that contains— (a) news, information or reports of events, or (b) remarks, observations or comments about any news, information or events or about any other matter of interest to the public or to any section of the public, that is printed in any language and published at regular or irregular intervals. Maximum penalty— (a) in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or (b) in the case of a corporation, 6,000 penalty units for a first offence or 10,000 penalty units for a second or subsequent offence. Note. Continuing offences against this section are dealt with in section 52. Note. Schedule 2.4 repeals subsections (3) (c) and (4) on a proclaimed day. 16E Display of retail prices and names of tobacco products prohibited (1) A person must not, in New South Wales, display the retail prices or names of tobacco products in, or so that the display can be seen from, any of the following— (a) a public place, (b) a place prescribed by the regulations. Maximum penalty— (a) for a corporation—500 penalty units, or (b) for an individual—100 penalty units. (2) Subsection (1) does not apply to the display of the retail prices or names of tobacco products within a retail outlet if the prices and names are displayed in a way that complies with any requirements for the display of retail prices and names of tobacco products prescribed by the regulations. 17 Tobacco products promotions involving prizes or gifts (1) A person must not, in connection with the sale of a tobacco product or for the purpose of promoting the sale of a tobacco product, supply (whether from inside or outside New South Wales) to a person in New South Wales— (a) a prize, gift or other benefit, or (b) a stamp, coupon, token, voucher, ticket or other thing by virtue of which any person may become entitled to, or may qualify for, a prize, gift or other benefit (whether that entitlement or qualification is absolute or conditional). (2) Subsection (1) applies whether or not the person supplied with the benefit or thing concerned is a purchaser of a tobacco product. (3) Subsection (1) does not apply to the supply of a benefit or thing to a person who is, or is the employee of— (a) a manufacturer or distributor of tobacco products, or (b) a retailer of tobacco products, unless it is established that the benefit or thing was supplied for resupply to persons who purchase tobacco products from the retailer. (4) A benefit or thing supplied to a tobacco retailer, or an employee of a tobacco retailer, that is actually resupplied to a purchaser of tobacco products from the retailer (or any employee of the retailer) is taken, for the purposes of subsection (3) (b), to have been so supplied for resupply to such a purchaser. (5) A person must not, in connection with the sale of a tobacco product or for the purpose of promoting the sale of a tobacco product, conduct (whether from inside or outside New South Wales) a scheme— (a) declared by the regulations to be a scheme to promote the sale of a tobacco product or to promote smoking generally, and (b) the whole or any part of which is implemented in New South Wales. (6) It is a defence in proceedings for an offence under this section to prove that the benefit or thing supplied was only incidentally connected with the purchase of a tobacco product and that equal opportunity to receive that benefit or thing and to buy products other than tobacco products was afforded generally to persons who purchased products, whether or not they were tobacco products. (7) It is no defence in any such proceedings to prove that the benefit or thing concerned was of negligible or no value. Maximum penalty— (a) in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or (b) in the case of a corporation, 6,000 penalty units for a first offence or 10,000 penalty units for a second or subsequent offence. Note. Continuing offences against subsection (1) are dealt with in section 52. 18 Shopper loyalty programs (1) A person must not implement or conduct a shopper loyalty program. Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation. (2) In this section, a shopper loyalty program means any of the following programs— (a) a program under which a gift or other benefit may be obtained by a purchaser of tobacco products or non-tobacco smoking products on the basis of the amount or type of those products purchased, regardless of whether the program extends to the purchase of other products or goods, (b) a program under which a purchaser of goods or products may be entitled to a gift of tobacco products or non-tobacco smoking products, regardless of whether the purchaser may choose to accept another type of gift instead. (3) However, a shopper loyalty program does not include the following— (a) any program under which a gift or other benefit may be obtained by a purchaser of goods on the basis of the method of payment used, such as the use of a particular credit card, (b) any program conducted by a manufacturer or distributor of tobacco products or non-tobacco smoking products where the gift or other benefit provided under the program is provided to a retailer of such products for the use of the retailer and is not intended for resupply. 19 Free samples A person must not, for the purpose of inducing or promoting the sale of a tobacco product, offer, give or distribute to another person (not being a person who is, or is the employee of, a manufacturer, distributor or retailer of a tobacco product) a free tobacco product. Maximum penalty— (a) in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or (b) in the case of a corporation, 6,000 penalty units for a first offence or 10,000 penalty units for a second or subsequent offence. Note. Continuing offences against this section are dealt with in section 52. 20 Prohibition of sponsorships (1) A person must not promote or publicise, or agree to promote or publicise, in New South Wales any of the following under a contract, or an arrangement (whether or not legally binding), under which a sponsorship is provided, or to be provided, by another person— (a) a tobacco product or a trademark or brand name of a tobacco product, (b) the name or interests of a manufacturer or distributor of a tobacco product (whether or not that manufacturer or distributor also manufactures or distributes a product other than the tobacco product) in association directly or indirectly with the tobacco product. (2) A person must not provide, or agree to provide, a sponsorship under a contract or arrangement of a kind referred to in subsection (1). (3) For the purposes of subsection (1) (b), the name or interests of a manufacturer or distributor of a tobacco product are taken to be in association directly or indirectly with the tobacco product if that name or those interests are commonly associated by members of the public in New South Wales with the tobacco product. (4) In this section, sponsorship includes— (a) any scholarship, prize, gift or other benefit, and