Smoke-free Environments Act 1990

2 Interpretation

(1)

In this Act, unless the context otherwise requires,—

additive,—

(a)

in relation to a tobacco product, means a substance forming part of the product that is not cured tobacco leaf; and includes—

(i)

a substance forming part of the product that has been derived or refined from tobacco leaf (whether cured or not); and

(ii)

any wrapping forming part of the product that is not itself cured tobacco leaf; and

(b)

in relation to a herbal smoking product, means a substance forming part of the product that is not dried, or dried and cured, vegetable matter; and includes—

(i)

a substance forming part of the product that has been derived or refined from vegetable matter; and

(ii)

any wrapping forming part of the product that is not itself dried, or dried and cured, vegetable matter

aircraft has the same meaning as in section 2 of the Civil Aviation Act 1990

approved evidence of age document has the meaning given by section 5(1) of the Sale and Supply of Alcohol Act 2012

automatic vending machine means any self-service machine that,—

(a)

on the insertion of a coin or token or by any other means, dispenses by way of sale tobacco products, whether automatically or with the assistance of the purchaser; and

(b)

does not require replenishment between each sale

casino means a casino for which a casino venue licence is in force under section 122 or section 137 of the Gambling Act 2003

casino operator’s licence means a licence granted under section 130 of the Gambling Act 2003

class 4 gambling venue licence means a class 4 venue licence within the meaning of section 4(1) of the Gambling Act 2003

coastal cargo has the meaning given to it by section 198(6) of the Maritime Transport Act 1994

company name includes any corporate name, firm name, or business name, whether or not it is registered or registrable under the Companies Act 1993 or any other enactment

craft means—

(a)

an aircraft:

(b)

a ship (as defined in section 2(1) of the Maritime Transport Act 1994)

dedicated smoking room means an internal area in a hospital care institution, a residential disability care institution, or a rest home that is used solely to enable patients or residents who smoke to smoke, or to socialise with each other in a place where smoking is permitted

Director-General means the Director-General of Health

distributor means a person engaged in the business of selling tobacco products, or (as the case may be) herbal smoking products, otherwise than at retail only

early childhood education and care centre has the meaning given to it by section 309 of the Education Act 1989

employee means any person of any age employed under a contract of service by an employer to do any work for hire or reward

employer

(a)

means a person who employs 1 or more employees; and

(b)

includes a person who arranges for volunteers to undertake work

enforcement officer means a person for the time being appointed under section 14 to enforce Parts 1 and 2, or provisions of Parts 1 and 2

foreign ship means a ship that is not a New Zealand ship

gambling has the meaning set out in section 4(1) of the Gambling Act 2003

gambling area, in relation to a casino venue, means the area of the venue in which gambling is conducted

herbal smoking product means a product that—

(a)

is or contains vegetable matter; and

(b)

is intended to be smoked; but

(c)

contains no tobacco

hospital care institution has the meaning given to that term by section 58(4) of the Health and Disability Services (Safety) Act 2001

internal area, in relation to any premises or vehicle, means an area within or on the premises or vehicle that, when all its doors, windows, and other closeable openings are closed, is completely or substantially enclosed by—

(a)

a ceiling, roof, or similar overhead surface; and

(b)

walls, sides, screens, or other similar surfaces; and

(c)

those openings

internal flight means a flight—

(a)

between any 2 or more places in New Zealand; or

(b)

that commences from any place in New Zealand and is intended to terminate at that same place

Internet sale, in relation to a tobacco product or herbal smoking product, means a sale (whether by retail or wholesale) of the product pursuant to a contract that—

(a)

has been entered into using the Internet between—

(i)

a seller whose business is or includes offering the product for sale (whether by retail or wholesale); and

(ii)

a person (whether the purchaser or a person acting on the purchaser’s behalf) who is at a distance from the seller’s place of business; and

(b)

contains a term providing for the product to be delivered by or on behalf of the seller to, or to a place or person chosen by, the purchaser

large retailer, in relation to a person that is alleged to have committed an offence in a certain accounting period, means a retailer whose total turnover in the prior accounting period exceeded $50 million (as accounting period and turnover are defined by section 2(1) of the Commerce Act 1986, except that in those definitions body corporate is to be read as any retailer)

licensed premises means any premises, or any part of any premises, on which alcohol is sold pursuant to a licence under the Sale and Supply of Alcohol Act 2012

managers, in relation to a school, or premises to which section 7A(4) applies, means all the people who control and manage the school or premises, whether or not they have a proprietary interest in the school or premises

manufacturer includes any company with which a manufacturer is associated within the meaning of subpart YB of the Income Tax Act 2007

Minister means the Minister of Health

New Zealand continental waters has the meaning given to it by section 222(1) of the Maritime Transport Act 1994

New Zealand resident means—

(a)

a New Zealand citizen:

(b)

a permanent resident of New Zealand within the meaning of section 73 of the Electoral Act 1993:

(c)

a company incorporated in New Zealand

New Zealand ship has the meaning given to it by section 2(1) of the Ship Registration Act 1992

of the same kind means not differing in a manner stated in subsection (2)

office means a place in which any person is employed, directly or indirectly, to do any clerical work in connection with any business carried on by the occupier of that place

open area, in relation to any premises, means a part of the premises that is not an internal area

organised activity means any cultural, educational, sporting, or recreational activity or event

package means a pack, carton, wrapping, or other container in which tobacco products, or (as the case may be) herbal smoking products, are customarily sold at retail

point of sale

(a)

means a checkout where tobacco products may be bought; and

(b)

includes a till or cashbox, where tobacco products may be bought, even if it is not at or part of a checkout

publish means—

(a)

insert in any newspaper or other periodical publication printed, published, or distributed in New Zealand; or

(b)

send to any person, by post or otherwise; or

(c)

deliver to any person or leave upon premises in the occupation of any person; or

(d)

broadcast within the meaning of the Broadcasting Act 1989; or

(e)

include in any film or video recording; or

(f)

include in any disk for use with a computer; or

(g)

disseminate by means of any other electronic medium; or

(h)

distribute by any means; or

(ha)

display by way of a sign, notice, poster, or other means; or

(i)

bring to the notice of the public in New Zealand in any other manner

registered school has the meaning given to it by section 2(1) of the Education Act 1989

residential disability care institution has the meaning given to that term by section 58(4) of the Health and Disability Services (Safety) Act 2001

rest home has the meaning given to it by section 58(4) of the Health and Disability Services (Safety) Act 2001

restaurant means any premises, or any part of any premises, where the principal business is the selling of meals or refreshments to the general public for consumption on the premises, whether or not liquor is or may be sold on those premises or that part of those premises; and includes any room or area on a ship or train where meals or refreshments are provided for passengers to consume

retailer means a person engaged in any business that includes the sale of tobacco products, or (as the case may be) herbal smoking products, at retail

school premises means premises that are—

(a)

a registered school; or

(b)

facilities, grounds, structures, or other premises, controlled and managed by the managers of a registered school, and used principally for—

(i)

the enjoyment, recreation, or relaxation of the young people attending the school; or

(ii)

cultural or sporting activities (or both) involving, or undertaken for the benefit of, the young people attending the school

ship has the meaning given to it by section 2(1) of the Ship Registration Act 1992

ship on demise charter to a New Zealand-based operator has the meaning given to it by section 4 of the Ship Registration Act 1992

smoking accessory means any article or substance that is used in conjunction with smoking, including cigarette papers, pipe cleaners, cigarette lighters, lighter fuel, and ashtrays; and includes the packaging, carton, wrapping, or other container in which smoking accessories are customarily sold at retail

taxi has the same meaning as in section 2(1) of the Land Transport Act 1998

to smoke

(a)

means to smoke, hold, or otherwise have control over an ignited tobacco product, weed, or plant; and

(b)

includes to smoke, hold, or otherwise have control over an ignited product or thing whose customary use is or includes the inhalation from it of the smoke produced from its combustion or the combustion of any part of it; but

(c)

does not include to hold or have control over an ignited product or thing customarily used as incense

tobacco carton means a box, carton, pack, packet, pouch, tin, wrapping, or other package containing 2 or more tobacco packages

tobacco package means a box, carton, pack, packet, pouch, tin, wrapping, or other package that—

(a)

contains a tobacco product or products; but

(b)

does not contain other tobacco packages within it

tobacco product means any product manufactured from tobacco and intended for use by smoking, inhalation, or mastication; and includes nasal and oral snuff; but does not include any medicine (being a medicine in respect of which there is in force a consent or provisional consent given under section 20 or section 23 of the Medicines Act 1981) that is sold or supplied wholly or principally for use as an aid in giving up smoking

tobacco product advertisement means any words, whether written, printed, or spoken, including on film, video recording, or other medium, broadcast or telecast, and any pictorial representation, design, or device, used to encourage the use or notify the availability or promote the sale of any tobacco product or to promote smoking behaviour; and includes—

(a)

any trade circular, any label, and any advertisement in any trade journal; and

(b)

any depiction, in a film, video recording, telecast, or other visual medium, of a tobacco product or a tobacco product trade mark, where in return for that depiction any money is paid, or any valuable thing is given, whether to the maker or producer of that film, video recording, telecast, or visual medium or to any other person; and

(c)

the use in any advertisement or promotion to the public of a tobacco products manufacturer’s company name where that name or any part of that name is used as, or is included in, a tobacco product trade mark;—

and advertise has a corresponding meaning

toy tobacco product means an object that—

(a)

looks like a tobacco product or a smoker’s pipe, and can be used to simulate smoking; but

(b)

cannot be smoked, is not confectionery, and has a primary purpose other than to help people stop smoking

trade mark includes any trade mark whether or not it is registered or registrable as such under the Trade Marks Act 2002; and also includes—

(a)

any brand name:

(b)

any company name, where that name is used for advertising or promotional purposes:

(c)

any name, word, or mark that so resembles any trade mark that it is likely to be taken as, or confused with, that trade mark

variant means sold in tobacco packages, or (as the case may be) packages of a herbal smoking product, that are not of the same kind

volunteer means a person of any age who—

(a)

performs for an employer, otherwise than for hire or reward, any work arranged by or on behalf of the employer; or

(b)

performs for the master of a ship, otherwise than for hire or reward, any work arranged by or on behalf of the owner or master of the ship

workplace, in relation to an employer,—

(a)

means an area that is—

(i)

an internal area, within or on a building or structure occupied by the employer, usually frequented by employees or volunteers during the course of their employment; or

(ii)

an internal area, within or on a ship (being a ship to which section 10 applies), an aircraft, or a train, owned, leased, or otherwise operated by the employer, usually frequented by employees or volunteers during the course of their employment; and

(b)

includes a cafeteria, corridor, lift, lobby, stairwell, toilet, washroom, or other common internal area attached to, forming part of, or used in conjunction with a workplace within the meaning of paragraph (a); and

(c)

includes an internal area within or on a vehicle that—

(i)

is not an aircraft, a ship, or a train; but

(ii)

is provided by the employer and normally used by employees or volunteers; and

(d)

includes an operating taxi; but

(e)

does not include—

(i)

a motel, or a bedroom or suite in a hotel; or

(ii)

a cabin or suite, for the time being assigned to a passenger or passengers, on a ship; or

(iii)

a sleeping compartment, for the time being assigned to a passenger or passengers, on a train; or

(iv)

a cabin, for the time being assigned to only 1 employee or volunteer, or to the master or owner, on a ship; or

(v)

a sleeping compartment, for the time being assigned to only 1 employee or volunteer, on a train; or

(vi)
[Repealed]

(vii)

a dwellinghouse occupied by the employer.

(2)

For the purposes of the definition of of the same kind in subsection (1),—

(a)

tobacco packages, tobacco cartons, or packages of a herbal smoking product differ if they bear different brand names:

(b)

tobacco packages, tobacco cartons, or packages of a herbal smoking product differ if they bear the same brand name, but the products they contain differ in 1 or more of the following ways:

(i)

containing or not containing menthol:

(ii)

being otherwise differently flavoured:

(iii)

producing different quantities of tar:

(iv)

allegedly differing in “mildness”:

(v)

having or not having filter tips or cork tips:

(vi)

containing different numbers of pieces:

(vii)

containing pieces of different length or mass:

(c)

tobacco cartons differ if they are sold under the same brand name, but they contain different numbers of tobacco packages.

(3)

For the purposes of paragraph (e)(vii) of the definition of workplace in subsection (1), no part of a ship is capable of being a dwellinghouse occupied by an employer.

Section 2(1) additive: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) aircraft: amended, on 1 September 1990, pursuant to section 101(1) of the Civil Aviation Act 1990 (1990 No 98).

Section 2(1) approved evidence of age document: inserted, on 18 December 2013, by section 417(1) of the Sale and Supply of Alcohol Act 2012 (2012 No 120).

Section 2(1) area health board: repealed, on 1 July 1993, by section 32 of the Health Sector (Transfers) Act 1993 (1993 No 23).

Section 2(1) automatic vending machine: inserted, on 29 July 1997, by section 2(1) of the Smoke-free Environments Amendment Act 1997 (1997 No 32).

Section 2(1) casino: substituted, on 1 July 2004, by section 374 of the Gambling Act 2003 (2003 No 51).

Section 2(1) casino operator’s licence: substituted, on 1 July 2004, by section 374 of the Gambling Act 2003 (2003 No 51).

Section 2(1) children’s product: repealed, on 23 July 2012, by section 7(1) of the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011 (2011 No 53).

Section 2(1) class 4 gambling venue licence: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) coastal cargo: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) code of practice or code: repealed, on 11 December 1998, by section 7(3)(a) of the Smoke-free Environments Amendment Act 1997 (1997 No 32).

Section 2(1) company name: amended, on 5 December 2013, by section 14 of the Companies Amendment Act 2013 (2013 No 111).

Section 2(1) company name: amended, on 1 July 1994, by section 2 of the Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).

Section 2(1) Council: repealed, on 1 July 2012, by section 14(2) of the New Zealand Public Health and Disability Amendment Act 2012 (2012 No 41).

Section 2(1) craft paragraph (b): amended, on 1 February 1995, pursuant to section 202(1) of the Maritime Transport Act 1994 (1994 No 104).

Section 2(1) dedicated smoking room: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) Director: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).

Section 2(1) distributor: substituted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) early childhood centre: repealed, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

Section 2(1) early childhood education and care centre: inserted, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

Section 2(1) employer: substituted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) enforcement officer: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) face: repealed, on 23 July 2012, by section 7(1) of the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011 (2011 No 53).

Section 2(1) foreign ship: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) gambling: inserted, on 1 July 2004, by section 374 of the Gambling Act 2003 (2003 No 51).

Section 2(1) gambling area: inserted, on 1 July 2004, by section 374 of the Gambling Act 2003 (2003 No 51).

Section 2(1) gaming: repealed, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) gaming area: repealed, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) herbal smoking product: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) hospital: repealed, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) hospital care institution: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) internal area: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) Internet sale: inserted, on 23 July 2012, by section 7(2) of the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011 (2011 No 53).

Section 2(1) large retailer: inserted, on 14 March 2018, by section 4 of the Smoke-free Environments (Tobacco Standardised Packaging) Amendment Act 2016 (2016 No 43).

Section 2(1) licensed premises: replaced, on 18 December 2013, by section 417(1) of the Sale and Supply of Alcohol Act 2012 (2012 No 120).

Section 2(1) managers: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) manufacturer: amended, on 1 April 2010, by section 861 of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 (2009 No 34).

Section 2(1) manufacturer: amended, on 1 April 2008 (effective for 2008–09 income year and later income years, except when the context requires otherwise), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 2(1) New Zealand continental waters: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) New Zealand resident paragraph (b): amended, on 1 July 1994, pursuant to section 284 of the Electoral Act 1993 (1993 No 87).

Section 2(1) New Zealand ship: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) of the same kind: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) open area: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) operating taxi: repealed, on 1 October 2017, by section 110(3) of the Land Transport Amendment Act 2017 (2017 No 34).

Section 2(1) package: substituted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) passenger service vehicle and small passenger service vehicle: repealed, on 1 October 2017, by section 110(3) of the Land Transport Amendment Act 2017 (2017 No 34).

Section 2(1) permitted smoking area: repealed, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) point of sale: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) pouch pack: repealed, on 23 July 2012, by section 7(1) of the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011 (2011 No 53).

Section 2(1) prescribed petroleum operations: repealed, on 4 April 2016, by section 232 of the Health and Safety at Work Act 2015 (2015 No 70).

Section 2(1) prison: repealed, on 5 March 2013, by section 48(2) of the Corrections Amendment Act 2013 (2013 No 5).

Section 2(1) publish paragraph (ha): inserted, on 29 July 1997, by section 2(2) of the Smoke-free Environments Amendment Act 1997 (1997 No 32).

Section 2(1) registered school: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) residential disability care institution: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) rest home: substituted, on 1 October 2002, by section 58(1) of the Health and Disability Services (Safety) Act 2001 (2001 No 93).

Section 2(1) retailer: substituted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) school premises: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) ship: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) ship on demise charter to a New Zealand-based operator: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) taxi: substituted, on 1 January 2009, by section 63(2) of the Public Transport Management Act 2008 (2008 No 87).

Section 2(1) to smoke: substituted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) tobacco carton: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) tobacco package: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) tobacco packages in a visible stack: repealed, on 23 July 2012, by section 7(1) of the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011 (2011 No 53).

Section 2(1) tobacconist’s shop: repealed, on 23 July 2012, by section 7(1) of the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011 (2011 No 53).

Section 2(1) toy tobacco product: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) trade mark: amended, on 20 August 2003, by section 201 of the Trade Marks Act 2002 (2002 No 49).

Section 2(1) variant: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) volunteer: inserted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) workplace: substituted, on 11 December 2003, by section 3(1) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(1) workplace paragraph (e)(vi): repealed, on 5 March 2013, by section 48(3) of the Corrections Amendment Act 2013 (2013 No 5).

Section 2(2): added, on 11 December 2003, by section 3(3) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 2(3): added, on 11 December 2003, by section 3(3) of the Smoke-free Environments Amendment Act 2003 (2003 No 127).