Tobacco Products Control Bill 2005 An Observation of the Practical Effects on Tobacco Product Promotion & Display in Western Australia David McCrostie | January 2005
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Tobacco Products Control Bill 2005 Scheduled commencement 31 March 2006 David McCrostie | Partner | 4 January 2006
Background The Bill has not yet passed the Upper House of State Parliament however it is expected to pass into law when Parliament resumes in March 2006. The Department of Health (DoH) does not expect there to be any significant changes to the Bill. ITA has been invited to participate in a working party with a view to providing input into the preparation of the Regulations that are to be made to support the Act. These observations are made for the purpose of assisting ITA in drawing to the attention of DoH the practical implications of the draft legislation. The notes are made with the benefit of: • • • • •
the Bill’s Explanatory Memorandum the Bill’s Consideration in Detail of 25 August 2005 the latest version of the Bill (60-2) notes on the Consideration in Detail debate by Peter Laidlaw dated 1 September 2005 notes of the meeting between ITA and DoH made by Pardeep Grewal on 6 December 2005
The purpose of the Bill is expressed on the Parliament’s website as being:… to prohibit the sale of tobacco products to persons under 18 years of age. … [a]lso: • • • • • • • •
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requires proof of age for purchase of tobacco products, cigarette papers, pipes and other smoking implements; require those who sell tobacco products to be licensed; control the sale and promotion of herbal cigarettes; prohibit the sale of confectionary, toys and other products that are designed to resemble tobacco products; apply control to Internet sales; restrict tobacco products displays; restrict information signs about availability and price of tobacco products; and other related purposes.
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The Bill SECTION
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No supply of a tobacco product or a smoking implement to a person under 18 years old. Smoking implement means: cigarette papers, a cigarette rolling machine, pipe, or other thing designed to be used in the process of smoking a tobacco product, or preparing a tobacco product for smoking, but does not include matches or a cigarette lighter
SECTION
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Creates a positive obligation by using the words must ensure that tobacco products cannot be obtained from vending machines in licensed premises by people under 18 years of age. The responsibility lies with a responsible person which means, relevantly: . . . the licensee . . . in relation to those premises The explanatory memorandum and Pardeep’s notes both make reference to phrases such as strictly supervised and line of sight however those words are not contained in the legislation. Consequently if a person under 18 obtains tobacco products from a vending machine then regardless of the best efforts of the responsible person to stop such a purchase, the responsible person will breach Section 8. In relation to non-licensed premises, vending machines may not be operated by any member of the public without the assistance of a responsible person unless the vending machine can be supervised – note, can be does not mean the same thing as is or must be – such that, provided the vending machine is capable of being supervised then it is arguable that the responsible person has discharged their obligations in relation to their supervision of that machine.
SECTION
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Creates a positive obligation in every person who asks to be sold a tobacco product to produce age identification regardless of whether that person is obviously 18 years or over.
SECTIONS
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Deal with sale and delivery of tobacco products to people under 18 years of age and is not restricted only to retail sales – accordingly ITA is responsible to ensure that its sales and delivery of products are to retailers that are demonstrably 18 years or over.
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SECTION
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A person who sells tobacco products by retail must obtain a licence to do so – note, it appears there is no need to obtain a licence if a person sells only smoking implements. The requirement to obtain a licence in relation to retail sales by vending machine only lies with the responsible person on the premises in which the vending machine is located rather than the owner of the vending machine.
SECTION
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A person who sells tobacco products by wholesale must obtain a licence to do so.
SECTION
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A person who sells tobacco products by indirect sale must obtain a indirect seller’s licence.
SECTION
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The Regulations have yet to be prepared, however ITA should note that this section requires that the packaging of tobacco products must be labelled in accordance with the Regulations – this means that potentially, there may be additional packaging requirements that do not exist in any other jurisdiction.
SECTION
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The explanatory memorandum and Pardeep’s notes make reference to point-of-sale and one place of sale – the legislation says that tobacco products may not be sold at more than one place (not defined) within the retailer’s tobacco licensed premises. It seems there may be only one location within premises licensed to sell tobacco by retail for the retail sale transaction to occur but, there is no prescription as to size, location or other physical appearance of that location. This section does not deal with displays of tobacco products whether they are covered or not.
SECTION
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Applies only to premises to which a retail licence has been obtained and restricts the display of tobacco products: • to one place in the premises; • to a total service area of tobacco products or packages facing customers no greater than one square metre; • to single packages only (that is no cartons, twin packs or other kinds of package that may be prescribed); and • to accord with the Regulations (yet to be prepared).
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It is expected the Regulations will result in further restriction in relation to: • • •
the number of visible brands; the physical structure that will house the tobacco product display; and display underage and Quitline warnings and information notices.
It should be noted that nowhere in the legislation is there any restriction on the place for sale, display or, indeed advertisement, of smoking implements.
SECTION
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Price tickets and tobacco product information boards may only be displayed in accordance with the Regulations. It is expected that the price tickets and product information boards will be regulated in relation to the following: • • • •
size; colour of text and/or background; placement; and information regarding available pack sizes, country of manufacture, brand names, prices etc.
SECTION
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Licensed retailers are required to display signs relating to: • • • •
prohibition against selling tobacco products to people under 18 years and the penalty; and the requirement to prove age. the Regulations will provide for the specifics of what is required in the signs and the DoH will produce compliant signs for distribution to retail outlets. the explanatory memorandum also suggests the Regulations will require a notice warning customers of the health effects of smoking.
SECTION
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Creates a positive obligation upon a holder of a retailer’s licence to provide to the purchaser of a tobacco product and approved guide and to make available to that purchaser an approved guide. Whilst the legislation says the retailer must . . . provide . . . it seems from the explanatory memorandum that the intention is that the retailer offer the guide because it is incongruous that a retailer breaches this part of the legislation if the purchaser refuses to be provided with the guide. The term tobacco wholesaler is so broad as to include ITA’s sale to retailers, consequently ITA is obliged to provide retailers with approved guides in the manner provided for in the Regulations – as the Regulations are yet to be completed the precise details of what is required by ITA is as yet unclear.
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SECTION
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Vending machines may only be located in liquor licensed premises or in a mines amenity. The yet to be drafted Regulations may provide for the total number of vending machines in a particular premises (expected to be a maximum of one); as to the volume, size or capacity of a machine; and as to where on a particular premises the machine may be placed.
SECTION
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This section is designed to prohibit the sale of cigarettes by “cigarette tray girls” – the legislation prohibits the sale of a tobacco product that is carried by a person on a tray or in a bag or other container. Pardeep’s notes say that this section does not cover a TMR Off-car selling however, the legislation does not make this distinction.
SECTION
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This section prohibits the advertisement of discounted tobacco product prices – presumably this prohibition does not extend to the display of prices in accordance with Regulations regarding price tickets or product information boards.
SECTION
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Sub-section (4)9b) may oblige ITA to apply the CEO with commercially sensitive information.
Glossary The definition of carton will include twin packs and accordingly those will be prohibited from display in WA. The definition of package includes, not only a package containing a tobacco product but also a box, packet, pouch, tin, carton designed to contain a tobacco product – there may be some scope for protection for branded containers designed to contain ITA’s products. The definition of product line specifically excludes the dimensions of a package when determining the existence of a separate product line – that is different sizes of packet (eg 50’s, 40’s, 35’s, 30’s, 25’s and 20’s) of the same variant (eg Horizon Orange) are not separate product lines. The definition of smoking implement means cigarette papers, a cigarette rolling machine, pipe, or other thing designed to be used in the process of smoking a tobacco product, or preparing a tobacco product for smoking, but does not include matches or a cigarette lighter. The definition of tobacco product means . . . tobacco in a form prepared for human consumption or use; . . . a cigarette . . . the main, or a substantial, ingredient of which is tobacco and which is designed for human consumption or use . . . a product prepared for smoking that contains a herb or other plant matter, whether or not the product also contains tobacco . . .
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What do the changes mean? The new legislation represents a new order for WA where, hitherto, there had been little in the way of restriction on point of sale advertising and product display. Despite its desires for an effective date of 1 July 2006, the DoH must not be permitted to think that changes such as those contemplated in the Bill can happen overnight; these adjustments, coupled with further changes that will come about once the Regulations are settled mean that, at the very least, the vast majority of retail outlets will require structural alteration to their premises. Once the Regulations are settled the DoH will, presumably, wish to publish a booklet notifying retailers of their new obligations, design and distribute warning and prohibition signs, field industry queries and otherwise take care of administrative issues. ITA will need to implement a system for collecting and confirming retailers’ licence details – presumably there will be some lag in the issuing of licences because every tobacco retailer will have to apply – the requirement to complete order forms, invoices, delivery dockets, receipts, credit notes etc by reference to licence numbers will commence on the same day the Act becomes effective (expected to be 1 July 2006). ITA will wish to clarify precisely what is going to be involved with the requirement it distribute the approved guides – how many, how often, what records of distribution must be kept, which wholesalers are responsible for which retailers (referrable to market share? geographic areas?) – there must be some system so as to avoid delivery of triple copies – the Regulations must deal with this. A broad interpretation of the definition of tobacco advertisement may allow for a conclusion that ITA corporate marked uniforms are a prohibited advertisement – I don’t think it would (especially as buildings may be branded with corporate logos) but there should be some clarification from DoH. This paper is for discussion purposes only and is not designed to be a complete and concluded statement of the nature and effect of the new legislation. The matters raised in the paper are directed towards questions raised by Pardeep Grewal and Richard Lea in particular.
For more information please contact: David McCrostie Partner 02 82575750 david.mccrostie@turkslegal.com.au
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