Tobacco Products Control Act 2006 (WA)

Western Australia Tobacco Products Control Act 2006 Western Australia Tobacco Products Control Act 2006 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 3. Purposes of Act 2 4. Terms used 2 5. Application to Crown 2 Part 2 — Sale and supply Division 1 — Supply to people under 18 6. Supply etc. to people under 18 prohibited 3 7. Purchase on behalf of people under 18 prohibited 3 8. Vending machines not to be operated by people under 18 3 9. Indirect sales, proof of age required for 4 10. Tobacco products etc. for delivery, markings on 4 11. Delivery of tobacco products etc. 4 12. Refusal of supply etc. if no proof of age 4 13. Defence to s. 6, 7, 8(1) and 9 offences, age of receiver 5 14. Defence to s. 6 and 11 offences for Australia Post workers 6 15. Proof of age for s. 9, 12 and 13(2)(c), what is 6 Division 2 — Sale of tobacco products 16. Retailers of tobacco products to be licensed 7 17. Wholesalers of tobacco products to be licensed 7 18. Indirect sellers of tobacco products to be licensed 7 18A. No retail sale by person under 18 years 7 19. Tobacco products for sale to be labelled 8 20. Only one sale place in each retail premises 8 21. No retail sale of cigarettes except in packages of at least 20 8 21A. No sale of cigarettes in certain packages 8 21B. No sale of flavoured cigarettes 9 22. No display of tobacco products etc. in retail premises 9 23. Defence to s. 22(1) offence for specialist retailers 9 24. Information about availability etc. of tobacco products etc. in retail premises 10 25. Warnings to be displayed at retail premises etc. 11 26. Information etc., provision of by CEO and some licensees 12 27. Vending machines, where they can be placed 13 28. People carrying tobacco products not to sell them 13 29. Price discounting not to be advertised 14 30. Only tobacco prepared for smoking to be sold etc. 14 Part 3 — Advertising and promotion 31. Tobacco advertisements restricted 15 32. Exceptions to s. 31 15 33. Prizes etc. connected with sale of tobacco product prohibited 17 33A. Tobacco products not to be included in loyalty programme 18 34. Free samples of tobacco products not to be given etc. 19 35. Sponsorships in connection with promoting tobacco products etc. prohibited 19 Part 4 — Licensing Division 1 — Licensing procedures 36. Types and content of licences 21 37. Application for licence 21 38. How and when to apply for renewal 22 39. Issuing and renewing licences, CEO's functions 22 40. Applicants to be notified of refusal etc. 24 41. Conditions and restrictions of general application 25 42. Conditions and restrictions of particular application 25 43. Duration of licence 26 44. Amending licence to apply to different premises 26 45. Register of licences 27 Division 2 — Powers of courts and State Administrative Tribunal 46. Review by SAT of licensing decisions 28 47. Disciplinary action against licence holders by SAT 28 48. Courts' powers on conviction in addition to punishment 30 49. Non-compliance with SAT's order, SAT's powers as to 30 50. Proceedings in court or SAT, general provisions about 31 Division 3 — Further obligations of licence holders 51. Breach of condition or restriction 32 52. Retailer's licence to be displayed 32 53. Licence to be produced on request by investigator 32 54. Lost etc. licences, notice and replacement of 32 55. Expired, amended etc. licences to be returned to CEO 33 56. Licence details to be shown on invoices etc. 33 57. Wholesalers' duties 34 58. Records to be kept by licence holders etc. 35 Part 5 — Administration 74. CEO may delegate 36 75. CEO may carry out research etc. 36 Part 6 — Investigations Division 1 — Investigators and investigation purposes 76. Investigators, appointment of 37 77. Appointment of restricted investigators 37 78. Restricted investigators, powers of 38 79. Police have powers of investigator 39 80. CEO has powers of investigator 39 81. Identity cards for investigators and restricted investigators 39 82. Identity card etc. to be shown 40 83. Purposes for which investigations may be done 40 Division 2 — Obtaining identifying information 84. Investigator may ask for name, address etc. 41 Division 3 — Powers in relation to premises 85. Power to enter premises 41 86. Residential premises, entry of 41 87. Warrants to enter premises 41 88. Identification and warrant (if any) to be shown on entry 42 89. Investigator's powers as to premises 42 90. Offences 44 91. Things in premises, investigator's duties as to 44 92. Access to, and return of, things taken from premises 45 93. Use of force by police officers 46 Division 4 — Compliance surveys and controlled purchase operations 94. Terms used 46 95. Controlled purchase officers, authorisation of etc. 46 96. Compliance surveys and controlled purchase operations 47 97. Reports about compliance surveys etc., CEO's duties as to 47 Part 7 — Enforcement Division 1 — Young persons with tobacco products or smoking implements 98. Terms used 48 99. Seizing tobacco products etc. from young persons 48 100. Young person found smoking etc. to give information 49 101. If young person found smoking etc., parent may be informed and approved guide provided 49 102. Powers in s. 84 unavailable for this Division 50 Division 2 — Offences 103. False or misleading information given to CEO etc. 50 104. False information about tobacco products etc. 50 105. Licence holders not to possess certain tobacco products 51 106. Products resembling tobacco products etc. not to be sold 51 107A. No smoking on beaches "between the flags" 51 107B. No smoking in outdoor eating areas 51 107C. No smoking near playground equipment 53 107D. No smoking in or on vehicles if under 17 year old present 53 107E. Local government legislative power not affected 53 107F. Protection of employees refusing to work in smoking zone 54 107. Obstruction of CEO etc. 55 108. Corporations or employers, conduct on behalf of 55 109. Liability of officers for offence by body corporate 56 110. Liability of employers 57 Division 3 — Prosecutions 111. When a prosecution can be commenced 58 112. Consent required for certain prosecutions 58 113. Evidentiary provisions 59 114. Copies etc. of documents, evidentiary status of 61 Division 4 — Penalties 115. General penalties 61 116. Continuing offences, penalties for 62 Division 5 — Seized things and forfeiture 117. Storage of seized things 63 118. Storage expenses payable by convicted person 63 119. Forfeiture on conviction 63 120. Unclaimed seized things, CEO's powers to deal with 64 Part 8 — Miscellaneous 121. Protection from liability for wrongdoing 65 123. Certain information not to be disclosed etc. 65 124A. Alleged offences of smoking near children, police to give CEO information about 66 124. Regulations, general powers to make 67 125. Regulations about smoking in public places 68 127. Review of Act 69 Part 9 — Transitional provisions for Tobacco Products Control Amendment Act 2018 128. Restricted investigators 70 129. Application of s. 119(1) to certain convictions 70 Glossary 1. Terms used 71 Notes Compilation table 77 Other notes 78 Defined terms Western Australia Tobacco Products Control Act 2006 An Act to — * prohibit the supply of tobacco products and smoking implements to young persons; * regulate the sale and promotion of tobacco products; * prohibit the sale of products that resemble tobacco products; * reduce the exposure of people to tobacco smoke from tobacco products that are smoked by other people, and to repeal the Tobacco Control Act 1990 1 and make consequential amendments to the Constitution Acts Amendment Act 1899 2 and Health Act 1911 2 and for related purposes. Part 1 — Preliminary 1. Short title This is the Tobacco Products Control Act 2006. 2. Commencement (1) This Act comes into operation on a day fixed by proclamation. (2) Different days may be fixed under subsection (1) for different provisions. 3. Purposes of Act The purposes of this Act are to reduce the incidence of illness and death related to the use of tobacco products — (a) by prohibiting the supply of tobacco products and smoking implements to young persons; and (b) by discouraging the use of tobacco products; and (c) by restricting the promotion of tobacco products and smoking generally; and (d) by reducing the exposure of people to tobacco smoke from tobacco products that are smoked by other people. [Section 3 inserted: No. 3 of 2016 s. 55.] 4. Terms used The Glossary at the end of this Act defines or affects the meaning of some of the words and expressions used in this Act. 5. Application to Crown This Act binds the Crown. Part 2 — Sale and supply Division 1 — Supply to people under 18 6. Supply etc. to people under 18 prohibited A person must not sell, supply or deliver a tobacco product or smoking implement to a person who has not reached 18 years of age. Penalty: see section 115. 7. Purchase on behalf of people under 18 prohibited A person must not purchase a tobacco product or smoking implement on behalf of a person who has not reached 18 years of age. Penalty: see section 115. 8. Vending machines not to be operated by people under 18 (1) A responsible person in relation to premises that are licensed premises or a mines amenity must ensure that a tobacco product cannot be obtained from a vending machine at the premises by a person who has not reached 18 years of age. (2) A responsible person in relation to premises that are licensed premises or a mines amenity must ensure that a tobacco product cannot be obtained by a member of the public from a vending machine at the premises without the assistance of a responsible person or a person acting on behalf of a responsible person unless the operation of the vending machine can be supervised at all times during which the premises are open to members of the public. Penalty applicable to subsections (1) and (2): see section 115. 9. Indirect sales, proof of age required for A person who is requested to sell a tobacco product or smoking implement by way of an indirect sale must not authorise or allow the tobacco product or smoking implement to be delivered unless the person who is to take possession of the tobacco product or smoking implement produces evidence that he or she has reached 18 years of age. Penalty: see section 115. 10. Tobacco products etc. for delivery, markings on A person who authorises a tobacco product or smoking implement to be delivered must ensure that the package is clearly marked with the words "tobacco product" unless — (a) the tobacco product is in the manufacturer's original package only and is labelled in accordance with the regulations as required by section 19; or (b) the delivery is made to the holder of a licence. Penalty: see section 115. 11. Delivery of tobacco products etc. A person must not deliver goods that are marked as a tobacco product or might reasonably be suspected to be a tobacco product or smoking implement unless — (a) the person receiving the goods provides his or her full name, date of birth and signature on a delivery document to be kept by the deliverer; or (b) the delivery is made to the holder of a licence. Penalty: see section 115. 12. Refusal of supply etc. if no proof of age A person who is requested — (a) at premises specified in a retailer's licence to sell a tobacco product or smoking implement; or (b) to assist a person to obtain a tobacco product from a vending machine; or (c) to deliver goods that are marked as a tobacco product or that might reasonably be suspected to be a tobacco product or smoking implement, may refuse to do so unless the person who is to take possession of the tobacco product or smoking implement produces evidence that he or she has reached 18 years of age. 13. Defence to s. 6, 7, 8(1) and 9 offences, age of receiver (1) In this section — receiver means — (a) a person to whom a tobacco product or smoking implement was sold, supplied or delivered; or (b) a person on whose behalf a tobacco product or smoking implement was purchased; or (c) a person who obtained a tobacco product from a vending machine, as is relevant to the case; relevant time means the time at which an offence under section 6, 7, 8(1) or 9 is alleged to have been committed. (2) If a person is charged with an offence under section 6, 7, 8(1) or 9 it is a defence to prove — (a) that at the relevant time the person charged had no reason to believe that the receiver had not reached 18 years of age; and (b) that at the relevant time the receiver had reached 14 years of age; and (c) that at or before the relevant time the receiver had produced evidence that the receiver had reached 18 years of age; and (d) that at the relevant time there was compliance with section 25(1) or (2), as is relevant to the case. 14. Defence to s. 6 and 11 offences for Australia Post workers If a person is charged with an offence under section 6 or 11 in relation to the delivery of a tobacco product or smoking implement it is a defence to prove that at the time the offence is alleged to have been committed the person was an employee of Australia Post as defined in the Australian Postal Corporation Act 1989 of the Commonwealth — (a) who was not required under a law (other than section 11(a)) or under the person's contract of employment to obtain the signature of a person receiving the goods; and (b) who delivered the goods by way of placing the goods in a letter box at the address stated on the parcel. 15. Proof of age for s. 9, 12 and 13(2)(c), what is (1) For the purposes of sections 9, 12 and 13(2)(c) the following documents can be used as evidence that a person has reached 18 years of age — (a) a current passport; (b) a current Australian driver's licence; (c) a prescribed document, that bears a photograph of the person and indicates by reference to the person's date of birth or otherwise that the person has reached 18 years of age. (2) A person must not, for the purpose of obtaining a tobacco product or smoking implement use — (a) another person's document of identification; or (b) a document of identification that has been forged or tampered with. Penalty: a fine of $100. Division 2 — Sale of tobacco products 16. Retailers of tobacco products to be licensed (1) A person must not sell a tobacco product by way of retail sale except under the authority of a retailer's licence. Penalty: a fine of $50 000. (2) For the purposes of subsection (1), persons who sell tobacco products by way of retail sale — (a) include a responsible person in relation to premises that are licensed premises or a mines amenity and at which there is a vending machine; but (b) do not include an owner of a vending machine that is at premises that are licensed premises or a mines amenity if the owner of the vending machine is not also a responsible person in relation to those premises. 17. Wholesalers of tobacco products to be licensed A person must not sell a tobacco product by way of wholesale sale except under the authority of a wholesaler's licence. Penalty: see section 115. 18. Indirect sellers of tobacco products to be licensed A person must not sell a tobacco product by way of indirect sale except under the authority of an indirect seller's licence. Penalty: see section 115. 18A. No retail sale by person under 18 years The holder of a retailer's licence must not authorise or allow a person who has not reached 18 years of age to sell a tobacco product. Penalty: see section 115. [Section 18A inserted: No. 21 of 2018 s. 4.] 19. Tobacco products for sale to be labelled The holder of a licence must not sell, or authorise or allow to be sold, a tobacco product by way of retail sale or wholesale sale unless the tobacco product is in a package that is labelled in accordance with the regulations. Penalty: see section 115. 20. Only one sale place in each retail premises (1) The holder of a retailer's licence must ensure that tobacco products are not sold at more than one place in the premises specified in the licence. Penalty: see section 115. (2) Subsection (1) does not apply to sales of tobacco products from vending machines. 21. No retail sale of cigarettes except in packages of at least 20 The holder of a retailer's licence must not sell, or authorise or allow to be sold, a cigarette unless the cigarette is in a package that contains at least 20 cigarettes. Penalty: see section 115. 21A. No sale of cigarettes in certain packages The holder of a licence must not sell, or authorise or allow to be sold, cigarettes in a package that is designed to be, or is capable of being, split into 2 or more portions each containing fewer than 20 cigarettes. Penalty: see section 115. [Section 21A inserted: No. 21 of 2018 s. 5.] 21B. No sale of flavoured cigarettes The holder of a licence must not sell, or authorise or allow to be sold, a cigarette that, when smoked, has a flavour or aroma of — (a) any kind of fruit; or (b) mint (but not menthol), chocolate, vanilla, caramel, coconut or any other flavour (but not a spice) commonly used in the production of confectionery. Penalty: see section 115. [Section 21B inserted: No. 21 of 2018 s. 5.] 22. No display of tobacco products etc. in retail premises (1) The holder of a retailer's licence must ensure that a tobacco product, package or smoking implement is not displayed in the premises specified in the licence. Penalty: see section 115. (2) If a person is charged with an offence under subsection (1) it is a defence to prove that the display was made to a specific customer at the customer's request. [Section 22 inserted: No. 22 of 2009 s. 4.] 23. Defence to s. 22(1) offence for specialist retailers (1) In this section — specialist retailer means a person who conducts a business selling tobacco products by way of retail sale if — (a) the person or any other person had been conducting that business on 1 July 2005; and (b) 80% or more of the average gross turnover of the business for the financial year 2004 to 2005 was derived from the sale of tobacco products; and (c) the business is conducted separately from, not in conjunction with, and not within the premises of, any other business. (2) If a person is charged with an offence under section 22(1) it is a defence to prove that at the time the offence is alleged to have been committed — (a) the person was a specialist retailer; and (b) the display was of a cigar or an implement designed to cut a cigar; and (c) the display could not be seen from a public place outside the premises specified in the licence; and (d) a health warning sign in accordance with the regulations was displayed immediately adjacent to the display. [(3), (4) deleted] [Section 23 amended: No. 22 of 2009 s. 5; No. 21 of 2018 s. 6.] 24. Information about availability etc. of tobacco products etc. in retail premises (1) The holder of a retailer's licence must not display, or authorise or allow to be displayed in, or in the vicinity of, the premises specified in the licence information about the availability or prices of tobacco products or smoking implements unless the information is displayed in accordance with the regulations. (2) The holder of a retailer's licence in relation to premises that are licensed premises or a mines amenity at which there is a vending machine must not display, or authorise or allow to be displayed in, on, or in the vicinity of, the vending machine information about the availability of tobacco products from the vending machine or the prices of those products unless the information is displayed in accordance with the regulations. Penalty applicable to subsections (1) and (2): see section 115. [Section 24 amended: No. 22 of 2009 s. 6.] 25. Warnings to be displayed at retail premises etc. (1) The holder of a retailer's licence must ensure that there is displayed at the premises specified in the licence signs — (a) warning customers and employees that it is illegal to sell a tobacco product or smoking implement to a person who has not reached 18 years of age; and (b) stating the penalty for selling a tobacco product or smoking implement to a person who has not reached 18 years of age; and (c) advising that proof of age may be requested from purchasers of tobacco products or smoking implements; and (d) that are in accordance with the regulations. Penalty for this subsection: a fine of $1 000. (2) The holder of a retailer's licence in relation to premises that are licensed premises or a mines amenity at which there is a vending machine must ensure that there is displayed — (a) on the vending machine signs about the purchase of tobacco products that are in accordance with the regulations; and (b) on the vending machine, a health warning sign that is in accordance with the regulations. Penalty for this subsection: a fine of $1 000. (3) The holder of a retailer's licence must ensure that if the price of a tobacco product is displayed, there is displayed, in close proximity to the price, a health warning sign that is in accordance with the regulations. Penalty for this subsection: a fine of $1 000. (4) The holder of an indirect seller's licence must ensure that customers are — (a) warned that it is illegal to sell or deliver a tobacco product or smoking implement to a person who has not reached 18 years of age; and (b) informed of the penalty for selling or delivering a tobacco product or smoking implement to a person who has not reached 18 years of age; and (c) advised that proof of age — (i) will be requested before a tobacco product or smoking implement is delivered; and (ii) may be requested at the time of delivery. Penalty for this subsection: a fine of $1 000. [Section 25 amended: No. 21 of 2018 s. 7.] 26. Information etc., provision of by CEO and some licensees (1) The CEO may, at the CEO's expense, make arrangements for the publication, in such form or forms as the CEO thinks is appropriate, of — (a) information about the effects of smoking on health; and (b) advice to assist persons to cease smoking. (2) The holder of a retailer's licence must, in accordance with the regulations — (a) provide a person who purchases a tobacco product from the holder with an approved guide or guides; and (b) make an approved guide or guides available to a person who purchases a tobacco product from the holder. (3) A tobacco wholesaler must, in accordance with the regulations, provide holders of retailer's licences with approved guides. Penalty applicable to subsections (2) and (3): see section 115. (4) Nothing in this section requires an approved guide to be provided or made available if the tobacco product is to be purchased from a vending machine. 27. Vending machines, where they can be placed (1) A person must not place, or authorise or allow to be placed, in any premises a vending machine for operation by members of the public unless the premises are licensed premises or a mines amenity. (2) A person must not place, or authorise or allow to be placed, in premises that are licensed premises or a mines amenity — (a) more than the prescribed number of vending machines for the premises; or (b) a vending machine having a size or capacity that is greater than the prescribed size or capacity; or (c) a vending machine in a location on the premises that is not in accordance with the regulations. Penalty applicable to subsections (1) and (2): see section 115. 28. People carrying tobacco products not to sell them (1) In this section — carried: includes carried on a tray or in a bag or other container. (2) A person must not, in the course of conducting a business or in the course of the person's employment, sell a tobacco product that is carried by the person. (3) A person must not authorise or allow another person (the seller) to sell a tobacco product that is carried by the seller. Penalty applicable to subsections (2) and (3): see section 115. (4) Subsections (2) and (3) apply whether or not the tobacco product, or the tray on which or the bag or other container in which the tobacco product is being carried, is being carried by the person at the time of the sale. 29. Price discounting not to be advertised A person who engages in price discounting to market tobacco products must not advertise the price discounting of a tobacco product. Penalty: see section 115. 30. Only tobacco prepared for smoking to be sold etc. (1) A person must not manufacture or sell a tobacco product that is not a tobacco product prepared for smoking. Penalty: see section 115. (2) Subsection (1) does not apply in relation to the manufacture or sale of prescribed tobacco products in prescribed circumstances. Part 3 — Advertising and promotion 31. Tobacco advertisements restricted (1) A person must not display or broadcast a tobacco advertisement in a public place. (2) A person must not display or broadcast a tobacco advertisement that can be seen or heard from a public place. (3) A person must not distribute to the public any unsolicited object that constitutes or contains a tobacco advertisement. (4) A person must not sell or hire an object that constitutes or contains a tobacco advertisement. Penalty applicable to subsections (1), (2), (3) and (4): see section 115. (5) In proceedings for an offence under this section it is to be presumed, unless the contrary is proved, that if the thing that is alleged to constitute a tobacco advertisement contains the trade mark in respect of, or registered design or brand name of, a tobacco product or smoking implement then it promotes the tobacco product or smoking implement. 32. Exceptions to s. 31 (1) Section 31 does not apply in relation to any of the following — (a) anything done by means of a radio or television broadcast; or (b) a tobacco advertisement in a publication published outside Western Australia unless the sole or main purpose of the publication is to promote a tobacco product or smoking generally; or (c) a tobacco advertisement in or on a package; or (d) a tobacco advertisement comprising only information about the availability of tobacco products or smoking implements from premises specified in a retailer's licence or a vending machine or the prices of those products or implements if the information is displayed in accordance with regulations mentioned in section 24(1) or (2); or (e) a tobacco advertisement comprising only information about the availability of tobacco products from premises specified in a wholesaler's licence or the prices of those products; or (f) a tobacco advertisement that is an incidental accompaniment to the subject of a film, video tape, compact disc or digital versatile disc or live stage performance unless the sole or main purpose of the film, video tape, compact disc or digital versatile disc or live stage performance is to promote a tobacco product or smoking implement or smoking generally; or (g) an invoice, statement, order, letterhead, business card, cheque, manual or other document that is ordinarily used in the course of business of a licence holder or tobacco company; or (h) the appearance of the trade mark in respect of, or the registered design or brand name of, a tobacco product, or part of such a trade mark, registered design or brand name, in or on land or a building that is occupied by the tobacco company that manufactures the tobacco product; or (i) the appearance of the trade mark in respect of, or the registered design or brand name of, a smoking implement, or part of such a trade mark, registered design or brand name, in or on land or a building that is occupied by the manufacturer of the smoking implement; or (j) the appearance of — (i) the business name of a licence holder at the premises specified in the licence; or (ii) a description of the business of a licence holder at the premises specified in the licence; or (iii) the name of a tobacco company in or on land or a building that is occupied by the tobacco company. (2) Despite subsection (1)(b), section 31 applies to a tobacco advertisement that is provided in or with a publication if the advertisement comprises a separate document inserted or otherwise incorporated into or onto the publication. (3) Section 31 does not apply in relation to the taking of any action to prevent a tobacco product or smoking implement (a product) from causing injury to anyone, including action — (a) to recall a product; or (b) to disclose a defect in, or a dangerous characteristic of, a product; or (c) to disclose circumstances in which the use of a product is or may be dangerous; or (d) to disclose procedures for disposing of a product. [Section 32 amended: No. 22 of 2009 s. 7.] 33. Prizes etc. connected with sale of tobacco product prohibited (1) A person must not, in connection with the sale of a tobacco product or for the purpose of promoting a tobacco product or smoking generally, supply to any person (whether or not the purchaser) — (a) a prize, gift or other benefit; or (b) a stamp, coupon, token, voucher, ticket or other thing by virtue of which the purchaser or any other person may become entitled to, or may qualify for, a prize, gift or other benefit. Penalty: see section 115. (2) Subsection (1) applies — (a) whether or not consideration is given or required for the prize, gift or benefit; and (b) whether or not the prize, gift or other benefit has monetary value; and (c) whether or not the entitlement or qualification is absolute or conditional. (3) If a person is charged with an offence under subsection (1) it is a defence to prove — (a) that the prize, gift or benefit supplied was only incidentally connected with the purchase of a tobacco product; and (b) that equal opportunity to receive that prize, gift or benefit was afforded generally to persons who purchased products, whether or not they were tobacco products. (4) In the case of a sale of tobacco products to the holder of a licence, subsection (1) does not apply to a discount provided in connection with that sale as long as the discount is based on, and only on, the quantity of tobacco products the subject of that sale. 33A. Tobacco products not to be included in loyalty programme (1) A person must not establish or conduct — (a) a programme or arrangement under which a gift or other benefit may be obtained by a purchaser of a tobacco product on the basis of the amount or type of the product purchased, whether or not the programme or arrangement extends to the purchase of other goods or services; or (b) a programme or arrangement under which a purchaser of goods or services may be entitled to a gift of a tobacco product or any other benefit in relation to a tobacco product, whether or not the purchaser may choose to accept another type of gift or benefit. Penalty for this subsection: see section 115. (2) Subsection (1)(a) does not apply in relation to a programme or arrangement under which a gift or other benefit may be obtained on the sole basis of the method of payment used to purchase a tobacco product. [Section 33A inserted: No. 21 of 2018 s. 8.] 34. Free samples of tobacco products not to be given etc. A person must not, for the purpose of promoting a tobacco product or smoking generally, offer, give or distribute a free sample of a tobacco product to a member of the public. Penalty: see section 115. 35. Sponsorships in connection with promoting tobacco products etc. prohibited (1) In this section — sponsorship includes any of the following — (a) a scholarship, prize, gift or other like benefit; (b) a financial arrangement (other than bona fide contract of service or contract for services) for the direct promotion or publicising of one or more of the things mentioned in subsection (2)(a) or (b) through the medium of sporting, arts, youth, educational or other like activities. (2) A person must not promote, or agree to promote — (a) a tobacco product or smoking generally; or (b) the name or interests of a licence holder or a tobacco company in association directly or indirectly with a tobacco product, under a contract, or an arrangement (whether or not legally binding), under which a sponsorship is provided, or to be provided, by another person. (3) A person must not provide, or agree to provide, a sponsorship under a contract or arrangement of a kind referred to in subsection (2). Penalty applicable to subsections (2) and (3): see section 115. (4) In proceedings for an offence under subsection (2)(b), it is to be presumed, unless the contrary is proved, that the name or interests of a licence holder or a tobacco company is in association directly or indirectly with the tobacco product if that name or those interests are commonly associated by members of the public with the tobacco product. Part 4 — Licensing Division 1 — Licensing procedures 36. Types and content of licences (1) The CEO may issue one or more licences to a