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Tobacco e-cigarettes and related products

Contents:

Introduction

Tobacco and Related Products Regulations 2016


Tobacco advertisements


Displays of tobacco products


Sale of tobacco or cigarette papers to a person under 18 (Engand, Wales)

  Tobacco vending machine sales

  Constables and park-keepers

e-cigarettes and nicotine inhaling products


Introduction


The United Kingdom Government entered office in 1997 with a manifesto commitment to ban tobacco advertising. Initially the government proposed to fulfil its commitment through implementing EU Directive 98/43/EC(2) banning tobacco advertising, promotion and sponsorship. However, the Directive was annulled by the European Court of Justice on the grounds of an incorrect legal (treaty) base.

A Government Bill to fulfil the manifesto commitment was introduced in the 2000/2001 Parliamentary session but fell when the 2001 election was called. The measure, in identical terms, was then introduced in the House of Lords as a Private Members Bill by Lord Clement-Jones and on completing progress through the House of Lords was adopted as a Government Bill and enacted as the Tobacco Advertising and Promotion Act 2002.

An advertising ban was part of the Government's tobacco control strategy, as set out in "Smoking Kills", published on 10 December 1998.  The Department of Health’s Consultation on the Future of Tobacco Control, published on 31 May 2008, sought views from stakeholders and the public on further action to combat smoking and the negative effects it has on public health. The consultation ran for three months and sought views on possible measures to reduce young people’s access to tobacco and on reducing exposure to tobacco promotion. The consultation received nearly 100,000 responses.

The Health Act 2009 included a series of amendments to the Tobacco Advertising and Promotion Act 2002 (the 2002 Act), the Children and Young Persons (Protection from Tobacco) Act 1991 (the 1991 Act) and the Children and Young Persons (Protection from Tobacco) (Northern Ireland) Order 1991 (the 1991 (NI) Order) to adopt some of these measures for protecting public health. The amendments made further provision in relation to the display of tobacco products and the sale of such products from vending machines.

The provisions inserted into the 2002 Act subject to exclusions, prohibit the display of tobacco products in the course of a business. Powers are also given to the Secretary of State, the Welsh Ministers and the Department of Health, Social Services and Public Safety in Northern Ireland (DHSSPSNI) to regulate (but not prohibit) the display of prices of tobacco products and (Secretary of State only) the display of tobacco products and their prices in the course of a business on a website where such products are offered for sale. The 1991 Act and the 1991 (NI) Order are also amended to give power to the Secretary of State, the Welsh Ministers, and DHSSPSNI to prohibit the sale of tobacco from vending machines.

The Tobacco Products Directive 2014/40/EU

The EU adopted Directive 2014/40/EU of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC This Directive required EU member states to adapt their laws on the marketing, sale and promotion of a wider range of tobacco and nicotine products than hitherto, by 20 May 2016.

The Tobacco Products Directive updated and repealed Directive
2001/37/EC which contained rules that were out of date and did not reflect new
market, scientific and international developments. Both the European Council and the
European Parliament were keen to see further regulation of tobacco products which
account for health costs in excess of €25 billion per year and are the most significant
cause of premature deaths in the EU; responsible for almost 700,000 deaths every
year.

Tobacco and Related Products Regulations 2016

The Tobacco and Related Products Regulations 2016 (SI 2016 No. 507) implemented the main provisions of the Directive. The Directive introduced rules for herbal products for smoking and electronic cigarettes and refill containers which are not yet covered by European harmonisation measures, but are products for which Member States were likely or had already developed different rules with a risk of fragmentation of the internal market.


The European Commission estimates that the Directive will have reduced smoking
prevalence rates by between 1.7% and 2.6% five years after transposition. The UK has
pursued the public health agenda more thoroughly than some other Member States –
notably on requiring picture warnings for unit packets of cigarettes since 2008. It is
therefore expected that in the UK the reduction in smoking prevalence attributed to
the Directive will be in the range of 1.7% - 2.1% from the current level of 18.3% (UK
2015). This equates to around 200,000 fewer smokers and lifetime health benefits of
£13.7 billion.


The Tobacco and Related Products Regulations 2016 revoke the Tobacco
Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002 (as
amended) subject to regulation 10 which requires product identification markings on
tobacco products. This requirement will be maintained until the new track and trace
provisions come into force in 2019 for cigarettes and roll-your-own/hand rolling
tobacco and 2024 for other tobacco products. The Tobacco for Oral Use (Safety)
Regulations 1992 is also revoked.

Tobacco advertisements

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.

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.

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 the following persons are guilty of an offence:

(1) any proprietor or editor of the publication;

(2) any person who, directly or indirectly, procured the inclusion of the advertisement in the publication; and

(3) any person who sells the publication, or offers it for sale, or otherwise makes it available to the public6.

Where by means of an information society service, provided in the course of a business, a tobacco advertisement is published in the United Kingdom, or an EEA state other than the United Kingdom, by a service provider established in the United Kingdom, then any proprietor of the information society service or any editor of the information contained in the information society service, and any person who directly or indirectly procured the inclusion of the tobacco advertisement in the information contained in the information society service, is guilty of an offence.

Tobacco advertisement' means an advertisement whose purpose is to promote a tobacco product, or whose effect is to do so:

'Tobacco product' means a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed.

[Tobacco Advertising and Promotion Act 2002]


Displays of tobacco products

A person who in the course of a business displays tobacco products, or causes tobacco products to be displayed, in a place in England and Wales or Northern Ireland is guilty of an offence.

The appropriate Minister may by regulations provide for the meaning of “place” in this section. The appropriate Minister may by regulations make provision for a display in a place which also amounts to an advertisement to be treated for the purposes of offences in England and Wales or Northern Ireland under the [Tobacco Advertising and Promotion Act 2002 Act:

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

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

Regulations made:

Tobacco Advertising and Promotion (Display) (England) Regulations 2010, SI 2010/445 (made under sub-s (2)).
Tobacco Advertising and Promotion (Display and Specialist Tobacconists) (England) (Amendment) Regulations 2011, SI 2011/1256 (made under sub-s (2)).
Tobacco Advertising and Promotion (Display) (Wales) Regulations 2012, SI 2012/1285 (made under sub-s (2)).

Specialist tobacconists

A person does not commit an offence if a tobacco advertisement:

(1) was in, or [in the case of England, Northern Ireland and Wales] fixed to the outside of the premises of, a specialist tobacconist;

(2) was not for cigarettes or hand-rolling tobacco; and

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

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 [ Tobacco Advertising and Promotion Act 2002 s 6(2)].

Those sales are to be measured by sale price during the most recent period of 12 months for which accounts are available, or during the period for which the shop has been established, if it has not been established long enough for 12 months' accounts to be available: s 6(3).

'Shop' includes a self-contained part of a shop and, in that case, 'premises' for the purposes s 6(1), (2) means that self-contained part of the shop: s 6(4).

Regulations made:

Tobacco Advertising and Promotion (Specialist Tobacconists) Regulations 2004, SI 2004/1277 (made under sub-s (1)(c)).
Tobacco Advertising and Promotion (Specialist Tobacconists) (England) Regulations 2010, SI 2010/446 (made under sub-s (A1)).
Tobacco Advertising and Promotion (Display and Specialist Tobacconists) (England) (Amendment) Regulations 2011, SI 2011/1256 (made under sub-s (A1)).
Tobacco Advertising and Promotion (Display and Specialist Tobacconists) (England) (Amendment) Regulations 2012, SI 2012/677 (made under sub-s (A1)).
Tobacco Advertising and Promotion (Specialist Tobacconists) (Wales) Regulations 2012, SI 2012/1287 (made under sub-s (A1)).

Sale of tobacco or cigarette papers to a person under 18 (Engand, Wales)

Any person who sells to a person. under the age of [eighteen years any tobacco or cigarette papers, whether for his own use or not, is be liable, [on summary conviction to a fine not exceeding level 4 on the standard scale.

Due diligence defence: it is a defence for a person charged with the above offence to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

'Tobacco' for the above purposes (and below -vending machines etc.) includes cigarettes, any product containing tobacco and intended for oral or nasal use] and smoking mixtures intended as a substitute for tobacco, and the expression “cigarette” includes cut tobacco rolled up in paper, tobacco leaf, or other material in such form as to be capable of immediate use for smoking.

Tobacco vending machine sales

If any automatic machine for the sale of tobacco kept on any premises has been used by any person under the age of eighteen years, a magistrates court must order the owner of the machine, or the person on whose premises the machine is kept, to take such precautions to prevent the machine being so used as may be specified in the order or, if necessary, to remove the machine, within such time as may be specified in the order.

A person who fails to comply with such an order is be liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

Constables and park-keepers

It is the duty of a constable and of a park-keeper being in uniform to seize any tobacco or cigarette papers in the possession of any person apparently under the age of sixteen years whom he finds smoking in any street or public place. Anyy tobacco or cigarette papers so seized must be disposed of, if seized by a constable, in such manner as the local policing body may direct, and if seized by a park-keeper, in such manner as the authority or person by whom he was appointed may direct.

[ Children and Young Persons Act 1933 s.7]

e-cigarettes and nicotine inhaling products

What’s New items on this topic [go to the What's New page or archive for the full item]

07/11/2014: R v Philip Morris Brands SARL & Others v  The Secretary Of State For Health
Source: British and Irish Legal Information Institute (BAILII)

Philip[ Morris and other tobacco companies including British American Tobacco, Imperial Tobacco, JT Jt International and Gallaher have brought UK High Court proceedings to challenge the implementation in the UK, and the legality generally, of the 2nd Tobacco Directive.

The challenges to the validity of the Diretive were ultimately rejected by the Court of Justice of the EU in:

Judgments in Cases C-358/14 Poland v Parliament and Council
C-477/14 Pillbox 38(UK) Limited v Secretary of State for Health and
C-547/14 Philip Morris Brands SARL and Others v Secretary of State for Health

[Page updated: 03/06/2020]

 

 

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