Report on the Statutory Review of the

PUBLIC HEALTH (TOBACCO) ACT 2008

November 2014

TABLE OF CONTENTS

1.INTRODUCTION

2.SUBMISSIONS TO THE REVIEW

3.AREAS FOR REVIEW

3.1Object of the Act

3.2Provisions in the Act

3.3Sale of tobacco products that are incorrectly packaged or labelled

3.4Sale and display of tobacco products

3.5Single point of sale for tobacco products

3.6Licensing of tobacco retailers

3.7Tobacco vending machines

3.8Tobacco advertising and signage

3.9Sales to minors

3.10Smoke-free cars

3.11Limitations on the location or hours of retail trade of tobacco

4.Other issues in the scope of this Statutory Review

4.1Combining the Act with the Smoke-Free Environment Act

APPENDIX A

REFERENCES

1.INTRODUCTION

In 2008 NSW led the rest of Australia by passing the Public Health (Tobacco) Act (the Act), providing a comprehensive package of legislative reforms to restrict the availability and supply of tobacco, especially to children and young people.

The legislation was informed by a detailed community consultation process based on the Discussion Paper ProtectingChildren from Tobacco: A NSW Government Discussion Paper on the Next Steps to Reduce Tobacco-Related Harm, 2008. Almost 12,000 submissions to this Discussion Paper were received from the community and key health and industry stakeholders.

The Act forms part of a suite of measures introduced and implemented by the NSW Government to reduce smoking rates and tobacco-related harm.

The Act was passed by the NSW Parliament in November 2008 and commenced on 1 July 2009, with a range of phase-in periodsfor some of the provisions. All the provisions of the Act have now commenced.

Section 61 of theAct requires the NSW Minister for Health and Minister for Medical Research to undertake a review of the Act as soon as possible after a period of five years from the date of assent to the Act (November 2008). A report on the outcome of the Statutory Review is to be tabled in each House of Parliament within 12 months after the end of the period of five years.

The NSW Government is committed to ensuring that tobacco control measures remain relevant and appropriate to meeting these aims, including through periodically reviewing relevant legislation. Reviewing the Actis part of meeting this commitment.

The purpose of the Statutory Review is to determine whether the policy objects of the Act remain valid and whether the terms of the Act remain appropriate for securing those objects.

As part of the Statutory Review, the NSW Ministry of Health released a Discussion Paper to canvass key issues that have arisen during the operation of the Act, including:

  • Single point of sale for tobacco products;
  • Tobacco retailer licensing;
  • Tobacco vending machines;
  • Tobacco advertising and signage; and
  • Combining the Act and the Smoke-free Environment Act 2000 into one piece of key legislation.

This report details the public submissions received, as well as new and emerging issues, such as the sale of ‘illegal tobacco’ (tobacco that is incorrectly packaged, without a health warning, or with prohibited wording).

2.SUBMISSIONS TO THE REVIEW

One hundred and fifteen submissions were received during the consultation period of the Statutory Review, however only 77 of these actually contained content (the remainder were contact details only).

Concurrent with the Statutory Review, the Minister for Health established The NSW Taskforce on Tobacco Retailing (the Taskforce) to consider in detail issues relating to tobacco retailing. The Taskforce included public health experts, major non-government health organisations, small business representatives and major retailers.

The deliberations and recommendations of the Taskforce that are relevant to the Statutory Review are included in this report.

3.AREAS FOR REVIEW

3.1Object of the Act

The object of the Act is to “reduce the incidence of smoking and other consumption oftobacco productsandnon-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.”

The Act aims to achieve that object by:

  • Regulating theretailing, packaging, advertising anddisplayoftobacco productsandnon-tobacco smoking products;
  • Prohibiting the supply of those products to children; and
  • Reducing the exposure of children to environmental tobaccosmoke.

3.1.1Submissions

When asked if the object of the Act is still valid, the majority (72%) of respondents believed the object was still valid. However, 73% respondents believed further objects should also be included in the Act, while 27% believed there was no need for further objects.

There was wide variation in the additional objects proposed by those respondents who believed further objects should be included in the Actand there was no majority support for any particular additional object. The most popular additional object proposed was “reducing the availability and supply of tobacco” (39%). A smaller number of submissions (five or less) proposed other objects, such as:

  • Stronger licensing of tobacco retailers;
  • Banning all sales of tobacco;
  • Reducing tobacco use;
  • Assisting people to quit and remain quit;
  • Reducing sales of illicit tobacco;
  • Reducing visual advertising.

The reasons given by those who believed there was no need for further objects were that the Act is comprehensive and additional objects may be counterproductive by obscuring the original intent of the Act to reduce smoking.

3.1.2NSW Health position

NSW Health position is that the current object of the Act is valid and additional objects are not required.

The current object enables the legislature to make provisions for the availability and supply of tobacco, reduction of tobacco use and advertising. The current objects also provide for a licensing scheme for tobacco retailers – this is addressed at item 3.6.

Visual advertising is prohibited under the Act, and further provisions exist to reduce tobacco advertising within Commonwealth legislation. Reducing advertising is now predominantly in the domain of enforcement, rather than legislation. There is no evidence that total prohibition of tobacco, in lieu of robust regulation, is effective in reducing tobacco consumption. Quit assistance does not require a legislative response.

3.2Provisions in the Act

The Act contains 61 provisions in eight Parts to regulate the sale and supply of tobacco and non-tobacco smoking products.

Thekey provisions in this legislation include:

  • Bans on the sale of tobacco products that are incorrectly packaged or labelled;
  • Bans on the display of tobacco products, non-tobacco smoking products and smoking accessories in shops;
  • Mandating a single point of sale fortobacco products and non-tobacco smoking products in retail outlets;
  • Bans on the sale of tobacco from booths, tents (e.g. temporary market stalls) or mobile structures;
  • Allowing cigarette vending machines only in licensed venues restricted to over 18s, a requirement that vending machines must be activatedby a staffmember or by a token which is only available from a staff member and subject to the same product display bans as all other retail environments; and
  • Bans on the advertising and promotion of tobacco products, non-tobacco smoking products and smoking accessories in shops;
  • Bans ontobacco products in shopper-loyalty programs, prizes, gifts, free samples, sponsorship arrangements;
  • Bans on confectionary and toys that resemble tobacco products;
  • Bans on the sale of tobacco to minors, or purchasing tobacco on behalf of minors;
  • Bans onsmoking in carswhen children under the age of 16 years are present;
  • Prohibiting product or products that have a ‘distinctive fruity, sweet or confectionery-like character’ that might encourage a minor to smoke;
  • A notification-based licensing scheme for tobacco retailers;
  • Prohibitions on retailing for retailers that commit multiple offences;
  • Seizure and forfeiture of tobacco products that are believed, on reasonable grounds, to be for the purposes of committing certain offences under the Act;
  • Powers for NSW Authorised Inspectors, such as the power to inspect retailing premises; and
  • The creation of on the spot fines for certain offences under the Act.

3.2.1Submissions

When asked whether the provisions in the Act are appropriate to secure the object of the Act, 48% of respondents believed the provisions of the Act are still appropriate. Fifty-twoper cent of respondents did not. Of the respondents who did not believe the provisions of the Act are appropriate to secure the object of the Act, the most common reason given was that the current licensing system is not sufficient (27%).

When asked if other provisions should be included in the Act, 72% of respondents who answered recommended that other provisions be included in the Act. Twenty-eight per cent did not. There was variation in the additional objects proposed by respondents and no majority support for any particular additional object. Of those who believed other provisions should be included in the Act, the most popular response was for a positive licensing scheme with strong penalties for non-compliance (25%). The major areas of consideration are addressed in this report.

A smaller number (5 persons or less) proposed other provisions, as outlined in the table below.

Suggestion from public submissions / Consideration and response
Regulation of e-cigarettes / Requires further, focused consideration.
Improve transparency and accountability of enforcement practices via public reports / NSW Health has committed to the release of public reports about compliance with the Act. This does not require a legislative amendment or regulatory response.
Ban all tobacco sales / Addressed at item 3.1.
Reduce the exposure of all people to second hand smoke, not just children / Reducing the exposure to tobacco and other smoke in certain public places is the object of the Smoke Free Environment Act 2000. Combining the Act with this Smoke-free Environment Act 2000 is addressed at item 4.1.
Reducing tobacco availability near bars, night clubs or schools / Addressed at item 3.11.
Restrict the sale of tobacco to licensed premises / Addressed at item 3.11.
Restriction on trading hours for sale of tobacco and on who can sell / Addressed at item 3.11.
Prohibit smoking in shopping strips / Reducing the exposure to tobacco and other smoke in certain public places is the object of the Smoke Free Environment Act 2000. Combining the Act with this Smoke-free Environment Act 2000 is addressed at item 4.1.
Ban sales from vending machines / Addressed at item 3.7
Control how long sales cabinets can be kept open during restocking/ strengthen enforcement of display provisions / Addressed at item 3.4.
Prevent antique shops from displaying tobacco products (e.g. pipes). / Pipes are classified as a smoking accessory under the Act and cannot be displayed at premises where tobacco or tobacco products are sold.
Wholesalers must provide the MOH with a list of retailers to whom tobacco products are sold / Addressed at item 3.6.
Not restricting the definition of sale of tobacco products to only retail environments where tobacco products would be sold and consumed / There is no definition of ‘sale of tobacco’ in the Act. The intent of the legislation is to control those tobacco products that are used for tobacco consumption or use.
Make it illegal throw butts out of car windows / This is already a feature of NSW law. See s 144A of the Protection of the Environment Operations Act 1997.
No smoking in vehicles / Section 30 of Act makes is illegal to smoke in a vehicle with a child 16 years and under, consistent with the Act’s object to reduce the incidence of smoking and other consumption of tobacco products particularly by young people.
The Ministry of Health to resource an anonymous reporting system to identify and prosecute people selling illegal tobacco products / Public Health Units already take anonymous tip offs regarding breaches of the Act, including the sale of illegal tobacco. Options for strengthening the response to the sale of illegal tobacco are addressed at item 3.3.

3.3Sale of tobacco products that are incorrectly packaged or labelled

Part 2, Division 1 of the Act makes it illegal to sell a tobacco product that is incorrectly packaged (such as single cigarettes), without a health warning, or that contains prohibited words, such as ‘non-injurious’, ‘non-hazardous’ and ‘harmless’. A health warning is defined to be that which meets the Commonwealth requirements outlined in the Competition and Consumer (Tobacco) Information Standard 2011, e.g. warnings must use prescribed warning pictures and wording and cover 75 per cent of the front and 90 per cent of the back of cigarette packets.

The Ministry of Health has received a number of reports from Local Health District Public Health Units concerning a perceived increase in the sale of tobacco that is incorrectly packaged, without health warnings or using prohibited words (‘illegal tobacco’) in NSW retail tobacco outlets. It is understood most of the products suspected to be illegal tobacco are imported from overseas and are sold to customers at prices below that of legally labelled and packaged tobacco.

Anecdotally, when retailers are found with illegal tobacco, retailers maintain it is not for sale, despite it being in quantities beyond that which could reasonably be considered for personal use.

Public Health Unit Authorised Inspectors have broad inspection powers and are able to take photos and samples of illegal tobacco products, but are currently unable to seize quantities of illegal tobacco.

3.3.1Submissions

The discussion paper did not canvass this topic. However a small number of submissions addressed the issue of illegal tobacco.

3.3.2NSW Health position

The current provisions should be strengthened to deter the distribution of illegal tobacco. In order to prevent the distribution of illegal tobacco, NSW Health proposes amendments to the Act to deem quantities (amount to be established in the Regulations) of illegal tobacco to be for retail sale and extend Authorised Inspector’s seizure powers to products believed, on reasonable grounds, to be for the purposes of committing an offence under ss 6, 7 or 8 of the Act.

3.4Sale and display of tobacco products

Section 9 of the Actprohibits the display of tobacco products, non-tobacco smoking products and smoking accessories. Tobacco retailers must ensure that tobacco products, non-tobacco smoking products and smoking accessories cannot be seen by the public from inside or outside the premises. The exceptions are where:

  • A member of the public displays their own personal tobacco or smoking products; or
  • A tobacco or smoking product or products is displayed to a customer at his or her direct request, such as during an actualsale.

The types of smoking accessories covered by the display ban are defined in the Act and include cigarette papers, pipes, cigarette holders, hookahs, water pipes or any other smoking implements. Matches and lighters are not covered by the display ban and therefore may continue to be displayed.

Tobacco retailers may choose only one method to display basic information about tobacco products, such as prices and names, through the use of:

  • Price tickets; or
  • A single price board.

Retailers may use either one of the above methods but not both. Therefore the same method of displaying prices and product names must be used for all product lines carried by a particular business.

The Taskforce considered evidence which showed enforcement programs are most effective when they include regular compliance checks of retailers and a genuine threat of penalties for breaches. Currently the Act enables the creation of penalty infringement notices (on the spot fines), but these have only been created for four offences in the Act:

  • Smoking of tobacco in a motor vehicle if a juvenile is present (the smoker);
  • Smoking of tobacco in a motor vehicle if a juvenile is present (the driver);
  • Engaging in tobacco retailing without notifying as intending to engage in tobacco retailing; and
  • Failing to fail to comply with a requirement or direction of a police officeror Authorised Inspector duly made under the Act.

3.4.1Submissions

The discussion paper did not canvass this topic specifically.

3.4.2NSW Health position

The NSW Health position is that the Public Health (Tobacco) Regulation 2009 is amended to enable Authorised Inspectors to issue on the spot fines for:

  • Display oftobacco products, non-tobacco smoking products and smoking accessories (breaches of s 9 of the Act); and
  • Failure to display correct signage (breaches of ss 16-17 of the Regulation) – see 3.8.

Penalty infringement notices (on the spot fines) are a useful enforcement tool, deterrent and alternative to costly prosecution for minor, strict liability offences.

3.5Single point of sale for tobacco products

Section 10 of the Actrestricts the sale of tobacco products, non-tobacco smoking products and smoking accessories in NSW to a single point of sale within a retail outlet. The "single point of sale" refers to a single cash register. This restriction is in place to reduce visibility of and access to tobacco products. It also limits the number of sales staff that need to be skilled in their responsibilities regarding tobacco sale and simplifies monitoring of compliance with tobacco legislation. The Act does not prevent non-tobacco purchases being made at the designated cash register.

3.5.1Submissions

When asked if the single point of sale should be changed to a single service point, 46% of the respondents who answered this question said yes, 54% said no. Some stakeholders have identified concerns with the interpretation of a single point of sale as a single cash register. The reasons provided for supporting a change to single service points were that small supermarket retailers are experiencing ongoing problems in complying with the definition of the ''single point of sale”, leading to a loss of customers and therefore a downturn in business and also to discourage multiple purchases. These smaller supermarkets expressed the view that because many retail outlets have a single service desk with several cash registers that customers access from a single queue, there is congestion and confusion when the customer at the head of the queue is required to stand aside while waiting for the dedicated tobacco cash register to become available.

The key reason for not supporting this change was that the current system has generally been accepted and understood by the community. Other reasons provided were that that extending access to more cash registers at a single service point increases access to and availability of tobacco, to change it would require new instructions and additional training for retail staff, adding cost to retailers and potentially causing confusion for customers and staff and that it will lead to longer delays for everyone else being served.