Smoke-free Environments (Controls and Enforcement) Amendment Act 2011

Coat of Arms of New Zealand

Smoke-free Environments (Controls and Enforcement) Amendment Act 2011

Public Act2011 No 53
Date of assent22 July 2011
Commencementsee section 2

Contents

1  Title

2  Commencement

3  Principal Act amended

Part 1
Amendments relating to controls on tobacco products

Purpose of Part

4  Purpose of this Part

Preliminary and general provisions

5  Title repealed

6  Heading to section 1, etc, amended

7  Interpretation

8  New section 3A inserted

Promotion and advertising, and display of tobacco products

9  New sections 22 to 23B substituted

Sponsoring activity involving use of trade mark, etc, of tobacco products

10  New sections 25 and 25A substituted

Arrangements conflicting with Act have no effect

11  New section 28A inserted

Sales-outlet signs and notices, and Internet-sales information or warnings

12  New sections 29AA and 29AAB inserted

13  Sale of tobacco products and herbal smoking products to people under 18 prohibited

Part 2
Amendments relating to offences, regulations, and purposes

Purpose of Part

14  Purpose of this Part

Offences

15  Offences in respect of smoking products

Infringement offences

16  New sections 38A to 38D inserted

Regulations

17  Regulations

18  Smoke-free Environments Regulations 2007 amended

Purposes of Amendment Act

19  New section 41AA inserted

Related amendments to enforcement officers' powers

20  Requirement to give identifying information

21  Purposes for which powers may be used


The Parliament of New Zealand enacts as follows:

1  Title
  • This Act is the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011.

2  Commencement
  • (1) Sections 7, 9, 10, 12, 13(3), 15(2) to (5), 16(2), 17(1) to (3) and (5), and 18 (which contain amendments relating to promotion and advertising, display of tobacco products, sponsorship, sales-outlet signs and notices, and Internet-sales information or warnings) come into force at the end of the period of 12 months that starts on the day after the date on which this Act receives the Royal assent.

    (2) The rest of this Act comes into force on the day after the date on which this Act receives the Royal assent.

3  Principal Act amended

Part 1
Amendments relating to controls on tobacco products

Purpose of Part

4  Purpose of this Part
  • The purpose of this Part is to amend the principal Act so that it—

    • (a) generally prohibits the display of tobacco products in or at the outside of retail and other sales outlets, but also provides for temporary transitional exemptions from compliance during a 12-month transition period:

    • (b) prohibits the display, on the outside of retail premises, of retailers' names or trading names that are or include words, phrases, trade marks, or company names that have the effect of advertising the availability of tobacco products:

    • (c) treats sales-outlet notices or signs and Internet-sales messages that are or include tobacco product health or purchase age information or warnings as prohibited advertisements unless those sales-outlet notices or signs or Internet-sales messages are ones that it requires or permits:

    • (d) requires people who offer tobacco products or herbal smoking products for Internet sale to make visible on their Internet sites health and purchase age information or warnings:

    • (e) prohibits (more fully, or for the first time) manufacturers, importers, distributors, and retailers of tobacco products from sponsoring activities involving the use of tobacco product trade marks:

    • (f) prohibits manufacturers, importers, distributors, and retailers of tobacco products from sponsoring activities involving exclusive supply arrangements:

    • (g) facilitates the enforcement of prohibitions on distribution or supply of tobacco products free of charge or at a reduced charge, or with rewards, by providing that a term of an arrangement has no effect if compliance with the term would prevent or limit compliance with those prohibitions:

    • (h) is adjusted by related amendments and repeals.

Preliminary and general provisions

5  Title repealed
6  Heading to section 1, etc, amended
  • (1) The heading to section 1 is amended by omitting Short.

    (2) Section 1(1) is amended by omitting may be cited as and substituting is.

7  Interpretation
  • (1) Section 2(1) is consequentially amended by repealing the definitions of children's product, face, pouch pack, tobacconist's shop, and tobacco packages in a visible stack.

    (2) Section 2(1) is amended by inserting the following definition in its appropriate alphabetical order:

    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.

8  New section 3A inserted
  • The following section is inserted after section 3:

    3A Purposes of this Act
    • (1) The purposes of this Act are, in general, as follows:

      • (a) to reduce the exposure of people who do not themselves smoke to any detrimental effect on their health caused by smoking by others; and

      • (b) to regulate and control the marketing, advertising, and promotion of tobacco products, whether directly or through the sponsoring of other products, services, or events; and

      • (c) to monitor and regulate the presence of harmful constituents in tobacco products and tobacco smoke; and

      • (d) to establish a Health Sponsorship Council.

      (2) Subsection (1) does not limit or affect the particular purposes, stated in sections 4 and 21, of Parts 1 and 2.

Promotion and advertising, and display of tobacco products

9  New sections 22 to 23B substituted
  • Sections 22 to 23B are repealed and the following sections substituted:

    22 Advertising of tobacco products
    • (1) No person may, unless authorised by section 22A or 23, publish in New Zealand, or arrange for any other person to publish in New Zealand, a tobacco product advertisement (as defined in section 2(1)).

      (2) A notice or sign must be treated as a tobacco product advertisement if the notice or sign—

      • (a) communicates information that is or includes tobacco product health information or warnings, tobacco product purchase age information or warnings, or both; and

      • (b) is displayed inside or at the outside of the place of business of a person who offers tobacco products for sale (whether by retail or wholesale); and

      • (c) is not required or permitted by this Act, regulations under this Act, or both.

      (3) A message must be treated as a tobacco product advertisement if the message—

      • (a) communicates information that is or includes tobacco product health information or warnings, tobacco product purchase age information or warnings, or both; and

      • (b) is an Internet-sales message; and

      • (c) is not required or permitted by this Act, regulations under this Act, or both.

      (4) Subsections (2) and (3) do not limit the generality of subsection (1) or of the definition in section 2(1) of the term tobacco product advertisement.

    22A Exemptions from advertising prohibition for specified publications
    • Nothing in section 22(1) applies to any of the following:

      • (a) any price list given to retailers of tobacco products if the price list includes the health messages required by or under this Part:

      • (b) any advertisement included in any book, magazine, or newspaper printed outside New Zealand, or in any radio or television transmission originating outside New Zealand, or in any film or video recording made outside New Zealand, unless—

        • (i) the main purpose of the book, magazine, newspaper, transmission, film, or video recording is the promotion of the use of tobacco products; or

        • (ii) the book, magazine, newspaper, film, or video recording is intended for sale, distribution, or exhibition primarily in New Zealand; or

        • (iii) in the case of an advertisement in any radio or television transmission, the advertisement is targeted primarily at a New Zealand audience:

      • (c) the publication by a tobacco products manufacturer of a tobacco product advertisement in a magazine that is intended for distribution only to employees of the manufacturer:

      • (d) the exhibition, in any museum or art gallery, of any work or artifact:

      • (e) the dissemination, broadcasting, or exhibition of any film, video recording, or sound recording, where—

        • (i) that film, video recording, or sound recording was made before 16 December 1990; and

        • (ii) the tobacco product advertisement included in that film, video recording, or sound recording is in the form of a reference to, or a depiction of, a tobacco product trade mark that is only an incidental part of that film, video recording, or sound recording.

    23 Exemptions from advertising prohibition for retailers, vending machines, and Internet sellers
    • (1) A retailer of tobacco products may do all or any of the following things:

      • (a) provide, inside that retailer's place of business, and on a request (however expressed) made for the purpose by a person who has asked to purchase a specified, or any available, tobacco product, any information (in any medium, but only in the form of printed, written, or spoken words) that—

        • (i) does no more than identify the tobacco products that are available for purchase in that place and indicate their price; and

        • (ii) complies with any regulations for the time being in force under section 39(1)(ia):

      • (b) display inside that retailer's place of business any notice for the public that—

        • (i) does no more than indicate, using only printed or written words, the fact that, and the location or locations where, tobacco products in general are available for purchase in that place; and

        • (ii) complies with any regulations for the time being in force under section 39(1)(ib):

      • (c) display the retailer's name or trade name at the outside of the retailer's place of business so long as the name is not and does not include either or both of the following:

        • (i) any word or expression signifying that any tobacco product is available in that place for purchase:

        • (ii) the trade mark of a tobacco product or the company name of a tobacco products manufacturer.

      (2) Any person who offers any tobacco products for sale (whether by retail or wholesale) by way of an automatic vending machine may display, on the outside of the vending machine, any notice for the public that—

      • (a) does no more than identify (using only printed or written words) the tobacco products and indicate (using only printed or written words) their prices; and

      • (b) complies with any regulations for the time being in force under section 39(1)(ic).

      (3) Any person who offers any tobacco product for Internet sale (whether by retail or wholesale) may, on a request (however expressed) made for the purpose by another person who has asked to purchase a specified, or any available, tobacco product, allow to be visible on the person's Internet site when people browse, enter, or otherwise access it information that is only in the form of printed or written words, and that—

      • (a) does no more than identify the tobacco product and indicate its price; and

      • (b) complies with any regulations for the time being in force under section 39(1)(id).

    23A Display of tobacco products in or from sales outlets or vending machines generally prohibited
    • (1) A person who offers tobacco products for sale (whether by retail or wholesale) must not allow any part of a tobacco product, tobacco package, or tobacco carton at the outside of or inside the person's place of business to be for any reason visible—

      • (a) from outside the place; or

      • (b) from an area inside the place to which members of the public are allowed access.

      (2) A person who offers any tobacco product for sale (whether by retail or wholesale) by way of an automatic vending machine must not allow any part of a tobacco product, tobacco package, or tobacco carton to be for any reason visible from outside the machine.

      (3) Subsection (1) does not limit or affect, and is not limited or affected by, subsection (2).

      (4) Subsections (1) and (2) do not, however, apply to a tobacco product, tobacco package, or tobacco carton that is visible only to the extent that is necessary for it to be delivered—

      • (a) to the person at the place or, as the case requires, to the machine; or

      • (b) to its purchaser at or from the place or, as the case requires, from the machine.

      (5) A tobacco product, tobacco package, or tobacco carton must be treated as being visible only to the extent that is authorised by subsection (4)(a) or (b) if it is delivered—

      • (a) to a person and at or from a place or machine specified in that paragraph; and

      • (b) using a form of visible delivery prescribed by any relevant acceptable forms of visible delivery regulations for the time being in force under section 39(1)(ie).

      (6) Subsections (1) and (2) do not, however, apply to a tobacco product, tobacco package, or tobacco carton that is visible in a way that complies with any relevant temporary transitional exemption regulations for the time being in force under section 39(1)(if).

    23B Transitional exemption regulations expire 12 months after section 23A comes into force
    • (1) The following enactments expire at the end of the 12-month transition period:

      • (a) sections 23A(6) and 39(1)(if) and (6C); and

      • (b) all regulations under section 39(1)(if) that are in force immediately before the end of that period.

      (2) The 12-month transition period ends at the close of the period of 12 months that starts on the day on which section 23A (as substituted by section 9 of the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011) comes into force.

      (3) On their expiry those enactments are repealed or, as the case requires, revoked.

Sponsoring activity involving use of trade mark, etc, of tobacco products

10  New sections 25 and 25A substituted
  • Section 25 is repealed and the following sections are substituted:

    25 Sponsoring activity involving use of trade mark, etc, of tobacco products
    • (1) No person who is a manufacturer, importer, distributor, or retailer of tobacco products may sponsor (within the meaning of subsection (2)) an organised activity that is to take place, is taking place, or has taken place, in whole or in part, in New Zealand, and that involves the use, in the name of that activity, or on or through any thing other than a tobacco product, of all or any of the following:

      • (a) a tobacco product trade mark:

      • (b) all or any part of a company name included in a tobacco product trade mark:

      • (c) 1 or more words, logos, colours, shapes, sounds, smells, or other elements of a tobacco product trade mark that, as those 1 or more elements are used in the name, or on or through the thing, are likely to cause a person exposed to the name or thing to believe that the 1 or more elements are used in, on, or through it only or mainly for the purpose of advertising the product.

      (2) A person sponsors an activity for the purposes of subsection (1) or section 25A(1) if, and only if, the person does all or any of the following:

      • (a) organises or promotes, before the activity is to take place, or during the time that it takes place, some or all of the activity:

      • (b) makes, before the activity is to take place, or during or after the time that it takes place, any financial or non-financial contribution towards some or all of the activity:

      • (c) makes, before the activity is to take place, or during or after the time that it takes place, any financial or non-financial contribution to any other person in respect of the organisation or promotion, by that other person, of, or the participation, by that other person, in, some or all of the activity.

    25A Sponsoring activity involving exclusive supply arrangement
    • (1) No person who is a manufacturer, importer, distributor, or retailer of tobacco products may sponsor (within the meaning of section 25(2)) an organised activity that is to take place, is taking place, or has taken place, in whole or in part, in New Zealand, and that involves an arrangement for the person to be the only person supplying tobacco products at, or for the purposes of, some or all of the event.

      (2) The arrangement may be a contract, or a legally binding or other agreement, undertaking, or understanding.

      (3) Subsection (2) does not limit subsection (1).

      (4) This section operates in parallel with (that is, is not subject to, and does not override) the Commerce Act 1986.

Arrangements conflicting with Act have no effect

11  New section 28A inserted
  • The following section is inserted after section 28:

    28A Arrangements conflicting with Act have no effect
    • (1) A term has no effect if—

      • (a) it is expressed or implied in an arrangement of any kind in any form; and

      • (b) compliance with it would limit or prevent compliance with section 28(1) or (2).

      (2) The arrangement may be a contract, or a legally binding or other agreement, undertaking, or understanding.

      (3) Subsection (2) does not limit subsection (1).

      (4) A person who is, or is claiming through or under, a party to the arrangement may (regardless of whether it is a contract) seek relief under the Illegal Contracts Act 1970 (which applies with the necessary modifications) as if compliance with the term were performance, in a way that gives rise to illegality, of a provision of a contract.

Sales-outlet signs and notices, and Internet-sales information or warnings

12  New sections 29AA and 29AAB inserted
  • The following sections are inserted before section 29A:

    29AA Point-of-sale health information or warnings signs
    • Every person who offers a tobacco product or herbal smoking product for sale (by retail or wholesale) must, at all times when point-of-sale health information or warnings signs regulations under section 39(1)(ig) that apply to the person are in force, display clearly at each point of sale at the outside of or inside the person's place of business a sign for the public that—

      • (a) does no more than communicate health information or warnings (which may, without limitation, be or include the message SMOKING KILLS Ka mate koe i te kai hikareti); and

      • (b) complies with any regulations for the time being in force under section 39(1)(ig).

    29AAB Internet-sales health information or warnings
    • (1) Every person who offers a tobacco product or herbal smoking product for Internet sale (by retail or wholesale) must, at all times when Internet-sales health information or warnings regulations under section 39(1)(ih) that apply to the person are in force, comply with all provisions of those regulations (if any) requiring health information or warnings to be visible on the person's Internet site when people browse, enter, or otherwise access it.

      (2) The health information or warnings to be visible—

      • (a) may, without limitation, be or include the message SMOKING KILLS Ka mate koe i te kai hikareti; and

      • (b) must comply with any regulations for the time being in force under section 39(1)(ih).

13  Sale of tobacco products and herbal smoking products to people under 18 prohibited
  • (1) The heading to section 30 is amended by inserting , and sellers' arranging or effecting delivery, after Sale.

    (2) Section 30(1) is amended by inserting , or having sold it to a person of any age deliver it or arrange for it to be delivered, after No person may sell a tobacco product or herbal smoking product.

    (3) Section 30 is consequentially amended by repealing subsection (6) and substituting the following subsections:

    • (6) Every person who offers a tobacco product or herbal smoking product for sale by retail must, at all times when point-of-sale purchase age information or warnings regulations under section 39(1)(ii) that apply to the person are in force, display clearly at each point of sale at the outside of or inside the person's place of business a notice for the public that—

      • (a) does no more than communicate information or warnings to the effect that the sale of tobacco products and herbal smoking products to people who are younger than 18 years is prohibited; and

      • (b) complies with any regulations for the time being in force under section 39(1)(ii).

    • (6A) Every person who offers a tobacco product or herbal smoking product for Internet sale (by retail or wholesale) must, at all times when Internet-sales purchase age information or warnings regulations under section 39(1)(ij) that apply to the person are in force, comply with all provisions of those regulations (if any) requiring purchase age information or warnings to be visible on the person's Internet site when people browse, enter, or otherwise access it.

    • (6B) The purchase age information or warnings required by subsection (6A) to be visible must—

      • (a) do no more than communicate information or warnings to the effect that the sale of tobacco products and herbal smoking products to people who are younger than 18 years is prohibited; and

      • (b) comply with any regulations for the time being in force under section 39(1)(ij).

Part 2
Amendments relating to offences, regulations, and purposes

Purpose of Part

14  Purpose of this Part
  • The purpose of this Part is to amend the principal Act so that—

    • (a) it makes an infringement notice scheme available to enforce specified prohibitions, including the prohibitions on the sale of tobacco products and herbal smoking products to people younger than 18 years:

    • (b) its provisions relating to offences, regulations, and amendments are adjusted in the light of the amendments made to it by this Act.

Offences

15  Offences in respect of smoking products
  • (1) The heading to section 36 is amended by omitting smoking products and substituting tobacco products and herbal smoking products.

    (2) Section 36 is amended by repealing subsection (1A) and substituting the following subsection:

    • (1A) A person who, without reasonable excuse, allows a tobacco product, tobacco package, or tobacco carton to be visible in contravention of section 23A(1) or (2) commits an offence and is liable to a fine not exceeding $10,000.

    (3) Section 36(3) is amended by omitting section 25, organises or promotes any organised activity, or makes any financial contribution towards any organised activity, or makes any financial contribution to any other person in respect of the organisation or promotion, by that other person, of, or the participation, by that other person, in, any organised activity, and substituting section 25(1), sponsors (within the meaning of section 25(2)) an organised activity.

    (4) Section 36 is amended by inserting the following subsection after subsection (3):

    • (3A) Every manufacturer, importer, distributor, or retailer of tobacco products who, in contravention of section 25A(1), sponsors (within the meaning of section 25(2)) any organised activity, commits an offence and is liable,—

      • (a) in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or

      • (b) in any other case, to a fine not exceeding $10,000.

    (5) Section 36 is amended by inserting the following subsections after subsection (5):

    • (5AA) Every person who offers a tobacco product for sale (by retail or wholesale) and who fails, without reasonable excuse, to display any point-of-sale health information or warnings sign or signs required by section 29AA commits an offence and is liable to a fine not exceeding $2,000.

    • (5AAB) Every person who offers a tobacco product for Internet sale (by retail or wholesale) and who fails, without reasonable excuse, to make visible in accordance with section 29AAB the health information or warnings required by section 29AAB commits an offence and is liable to a fine not exceeding $2,000.

    (6) Section 36 is amended by repealing subsections (6) and (7) and substituting the following subsections:

    • (6) Every person who sells a tobacco product, or who having sold it delivers it or arranges for it to be delivered, in contravention of section 30(1) commits an offence and is liable,—

      • (a) in the case of a person who is a body corporate, to a fine not exceeding $10,000; and

      • (b) in the case of a person who is not a body corporate, to a fine not exceeding $5,000.

    • (6A) Every person who sells a herbal smoking product, or who having sold it delivers it or arranges for it to be delivered, in contravention of section 30(1) commits an offence and is liable to a fine not exceeding $2,000.

    • (6B) Every person who supplies a tobacco product or herbal smoking product in a public place in contravention of section 30AA(1) commits an offence and is liable to a fine not exceeding $2,000.

    • (7) Every person who offers a tobacco product or herbal smoking product for sale by retail and who fails, without reasonable excuse, to display in accordance with section 30(6) the point-of-sale purchase age information sign or signs required by section 30(6) commits an offence and is liable to a fine not exceeding $2,000.

    • (7AAA) Every person who offers a tobacco product or herbal smoking product for Internet sale (by retail or wholesale) and who fails, without reasonable excuse, to make visible in accordance with section 30(6A) the purchase age information or warnings required by section 30(6A) commits an offence and is liable to a fine not exceeding $2,000.

Infringement offences

16  New sections 38A to 38D inserted
  • (1) The following sections are inserted after section 38:

    38A Infringement offences
    • In this section and sections 38B to 39,—

      infringement fee, in relation to an infringement offence, means an amount—

      • (a)  prescribed for the purposes of this section in regulations made under section 39(1)(ik); and

      • (b) not exceeding the maximum infringement fee amount specified for that offence (in the relevant paragraph of the definition in this section of infringement offence)

      infringement offence means an offence that is an offence against a section, and that relates to contravening the section or sections, specified in any 1 of the following paragraphs (and that has the maximum infringement fee amount specified in that paragraph):

      • (a) section 36(5), but only so far as it relates to contravening section 29(1) (on publishing an advertisement for a tobacco product that directly or indirectly states or suggests that the product is suitable for chewing or for any other oral use (other than smoking)) or section 29(2) (on importing for sale, selling, packing, or distributing a tobacco product labelled or otherwise described as suitable for chewing, or for any other oral use (other than smoking))—maximum infringement fee amount $1,000:

      • (b) section 36(5A) (which relates to contravening section 29A(2), which relates to distributing a tobacco product to which section 29A(1) applies, or supplying a tobacco product to which section 29A(1) applies to another person for later distribution, or, in the case of a retailer, supplying a tobacco product to which section 29A(1) applies to another person for the purpose of that retailer's business)—maximum infringement fee amount $1,000:

      • (c) section 36(5B) (which relates to contravening section 29B, which relates to permitting an automatic vending machine that dispenses or is capable of dispensing tobacco products or herbal smoking products to be located in a place to which members of the public have access, and also to permitting a tobacco product or herbal smoking product to be sold by way of an automatic vending machine in a place to which members of the public have access)—maximum infringement fee amount $400:

      • (d) section 36(6) (which relates to contravening section 30(1) by selling, or after selling them delivering or arranging for the delivery of, tobacco products to people younger than 18 years)—maximum infringement fee amount $1,000:

      • (e) section 36(6A) (which relates to contravening section 30(1) by selling, or after selling them delivering or arranging for the delivery of, herbal smoking products to people younger than 18 years)—maximum infringement fee amount $400:

      • (f) section 36(7A) (which relates to contravening section 30A(2) or (3), both of which impose restrictions on the sale of certain tobacco products in small quantities)—maximum infringement fee amount $400:

      • (g) section 36A(2) (which relates to contravening section 36A(1), which prohibits sale of a toy tobacco product to a person younger than 18 years)—maximum infringement fee amount $400.

      Compare: 1989 No 63 s 162A

    38B Commission of infringement offences
    • A person who is alleged to have committed an infringement offence may either—

      • (a) be proceeded against for the alleged offence by the laying of an information under the Summary Proceedings Act 1957; or

      • (b) be served with an infringement notice as provided for in section 38C.

      Compare: 1989 No 63 s 162B

    38C Infringement notices
    • (1) If an enforcement officer observes a person committing an infringement offence, or he or she has reasonable cause to believe that such an offence is being or has been committed by that person, an infringement notice in respect of that offence may be served on that person.

      (2) Any enforcement officer (not necessarily the person who issued the notice) may deliver the infringement notice (or a copy of it) to the person alleged to have committed an infringement offence personally or by post addressed to that person's last known place of residence or business.

      (3) For the purposes of the Summary Proceedings Act 1957, an infringement notice (or a copy of it) sent to a person under subsection (2) is to be treated as having been served on that person when it was posted.

      (4) Every infringement notice must be in the prescribed form and must contain the following particulars:

      • (a) such details of the alleged infringement offence as are sufficient fairly to inform a person of the time, place, and nature of the alleged offence; and

      • (b) the amount of the infringement fee; and

      • (c) the address of the place at which the infringement fee may be paid; and

      • (d) the time within which the infringement fee must be paid; and

      • (e) a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957; and

      • (f) a statement that the person served with the notice has a right to request a hearing; and

      • (g) a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing; and

      • (h) any other particulars that may be prescribed.

      (5) If an infringement notice has been issued under this section, the procedure under section 21 of the Summary Proceedings Act 1957 may be used in respect of the offence to which the infringement notice relates; and, in that case, the provisions of that section apply with all necessary modifications.

      Compare: 1989 No 63 s 162C

    38D Payment of infringement fees
    • All infringement fees paid in respect of infringement offences must be paid into a Crown Bank Account.

      Compare: 1989 No 63 s 162D.

    (2) Paragraphs (a) to (g) of the definition of infringement offence in section 38A (as inserted by subsection (1)) are repealed and the following paragraphs substituted:

    • (a) section 36(5), but only so far as it relates to contravening section 29(1) (on publishing an advertisement for a tobacco product that directly or indirectly states or suggests that the product is suitable for chewing or for any other oral use (other than smoking)) or section 29(2) (on importing for sale, selling, packing, or distributing a tobacco product labelled or otherwise described as suitable for chewing, or for any other oral use (other than smoking))—maximum infringement fee amount $1,000:

    • (b) section 36(5AA) (which relates to contravening section 29AA, which in certain circumstances requires point-of-sale signs to be displayed by a person who offers for sale (by retail or wholesale) a tobacco product or herbal smoking product)—maximum infringement fee amount $400:

    • (c) section 36(5AAB) (which relates to contravening section 29AAB, which in certain circumstances requires health information or warnings to be made visible by a person who offers for Internet sale (by retail or wholesale) a tobacco product)—maximum infringement fee amount $400:

    • (d) section 36(5A) (which relates to contravening section 29A(2), which relates to distributing a tobacco product to which section 29A(1) applies, or supplying a tobacco product to which section 29A(1) applies to another person for later distribution, or, in the case of a retailer, supplying a tobacco product to which section 29A(1) applies to another person for the purpose of that retailer's business)—maximum infringement fee amount $1,000:

    • (e) section 36(5B) (which relates to contravening section 29B, which relates to permitting an automatic vending machine that dispenses or is capable of dispensing tobacco products or herbal smoking products to be located in a place to which members of the public have access, and also to permitting a tobacco product or herbal smoking product to be sold by way of an automatic vending machine in a place to which members of the public have access)—maximum infringement fee amount $400:

    • (f) section 36(6) (which relates to contravening section 30(1) by selling, or after selling them delivering or arranging for the delivery of, tobacco products to people younger than 18 years)—maximum infringement fee amount $1,000:

    • (g) section 36(6A) (which relates to contravening section 30(1) by selling, or after selling them delivering or arranging for the delivery of, herbal smoking products to people younger than 18 years)—maximum infringement fee amount $400:

    • (h) section 36(7) (which relates to contravening section 30(6), which in certain circumstances requires point-of-sale purchase age information or warnings to be displayed by a person who offers a tobacco product or herbal smoking product for sale by retail)—maximum infringement fee amount $400:

    • (i) section 36(7AAA) (which relates to contravening section 30(6A), which in certain circumstances requires purchase age information or warnings to be made visible by a person who offers a tobacco product or herbal smoking product for Internet sale (by retail or wholesale))—maximum infringement fee amount $400:

    • (j) section 36(7A) (which relates to contravening section 30A(2) or (3), both of which impose restrictions on the sale of certain tobacco products in small quantities)—maximum infringement fee amount $400:

    • (k) section 36A(2) (which relates to contravening section 36A(1), which prohibits sale of a toy tobacco product to a person younger than 18 years)—maximum infringement fee amount $400.

Regulations

17  Regulations
  • (1) Section 39(1) is amended by repealing paragraph (c).

    (2) Section 39(1) is amended by repealing paragraph (ia) and substituting the following paragraphs:

    • (ia) prescribing for the purposes of section 23(1)(a)(ii) (on retailers) requirements with which tobacco product and price information under section 23(1)(a) must comply:

    • (ib) prescribing for the purposes of section 23(1)(b)(ii) (on retailers) requirements with which a tobacco product availability and locations notice under section 23(1)(b) must comply:

    • (ic) prescribing for the purposes of section 23(2)(b) (on vending machines) requirements with which a tobacco product and price notice under section 23(2) must comply:

    • (id) prescribing for the purposes of section 23(3)(b) (on Internet sales) requirements with which a tobacco product and price information under section 23(3) must comply:

    • (ie) prescribing for the purposes of section 23A(5)(b) acceptable forms of visible delivery of all or any of tobacco products, tobacco packages, and tobacco cartons:

    • (if) prescribing for the purposes of section 23A(6) ways in which a class or classes of people who offer tobacco products for sale may allow a tobacco product, tobacco package, or tobacco carton to be visible:

    • (ig) prescribing for the purposes of section 29AA requirements with which point-of-sale health information or warnings signs under that section must comply:

    • (ih) prescribing for the purposes of section 29AAB requirements that a person who offers a tobacco product for Internet sale (by retail or wholesale) make visible as required by section 29AAB health information or warnings, and prescribing requirements with which that information or those warnings must comply:

    • (ii) prescribing for the purposes of section 30(6)(b) requirements with which a notice for the public (to the effect that the sale of tobacco products and herbal smoking products to people who are younger than 18 years is prohibited) under section 30(6) must comply:

    • (ij) prescribing for the purposes of section 30(6A) requirements that a person who offers a tobacco product or herbal smoking product for Internet sale (by retail or wholesale) make visible as required by section 30(6A) tobacco product and herbal smoking product purchase age information or warnings, and prescribing requirements with which that information or those warnings must comply:.

    (3) Section 39 is amended—

    • (a) by repealing subsections (3) to (5); and

    • (b) by inserting , (ic), (ig), (ih), (ii), or (ij) after subsection (1)(ia) in subsection (6).

    (4) Section 39(1) is amended by inserting the following paragraphs after paragraph (ia):

    • (ik) prescribing for the purposes of section 38A the infringement fee or infringement fees payable in respect of different kinds of infringement offences:

    • (il) prescribing for the purposes of (and for the purposes of the procedure in section 21 of the Summary Proceedings Act 1957 as modified and applied by) section 38C the form of infringement notices and reminder notices for infringement offences, and any other particulars to be contained in infringement notices and reminder notices:.

    (5) Section 39 is amended by inserting the following subsections after subsection (6):

    • (6A) Regulations under all or any of subsection (1)(ia), (ib), (ic), (ig), (ih), (ii), and (ij) may (without limitation) prescribe different requirements for all or any of the following:

      • (a) different classes of people who offer tobacco products or herbal smoking products for sale:

      • (b) different classes of place of business:

      • (c) different classes of points of sale:

      • (d) different circumstances of the sales for which requirements are prescribed.

    • (6B) Regulations under subsection (1)(ie) may (without limitation) do either or both of the following:

      • (a) prescribe for different classes of people who offer tobacco products for sale different acceptable forms of visible delivery of all or any of tobacco products, tobacco packages, and tobacco cartons:

      • (b) prescribe conditions with which 1 or more classes of people of that kind must comply before, or while, using a prescribed acceptable form of visible delivery.

    • (6C) Regulations under subsection (1)(if) may (without limitation) do either or both of the following:

      • (a) prescribe for different classes of people who offer tobacco products for sale different ways of allowing a tobacco product, tobacco package, or tobacco carton to be visible:

      • (b) prescribe conditions with which 1 or more classes of people of that kind must comply before, or while, allowing a tobacco product, tobacco package, or tobacco carton to be visible in a way prescribed.

    • (6D) Regulations under subsection (1)(ig) may (without limitation) prescribe requirements relating to all or any of the following matters relating to signs under section 29AA:

      • (a) the health information or warnings to be communicated by them:

      • (b) the shape and lengths of their sides:

      • (c) the width, and other aspects of, the borders around their edges:

      • (d) the typeface or font, point size, other aspects of the format or layout, or of the clarity, legibility, and weight, of the printing on them of the health information or warnings to be communicated by them:

      • (e) the minimum area that they must have for printing across:

      • (f) any official attribution (which may, without limitation, be or include Ministry of Health Warning) that they are to contain, and the way in which that attribution is to be communicated by them.

    • (6E) Regulations under subsection (1)(ih) may (without limitation) prescribe requirements relating to all or any of the following matters relating to the health information or warnings to be made visible under section 29AAB:

      • (a) the shape, and lengths of, the sides of that information or those warnings:

      • (b) the width, and other aspects of, the borders around the edges of that information or those warnings:

      • (c) the typeface or font, point size, other aspects of the format or layout, or of the clarity, legibility, and weight, of all or any of the text of that information or those warnings:

      • (d) the minimum area of that information or those warnings:

      • (e) any official attribution (which may, without limitation, be or include Ministry of Health Warning) that that information is, or that those warnings are, to contain.

18  Smoke-free Environments Regulations 2007 amended
  • Regulations 30 and 31 of the Smoke-free Environments Regulations 2007 are consequentially revoked.

Purposes of Amendment Act

19  New section 41AA inserted
  • The following section is inserted after section 41:

    41AA Purposes of Smoke-free Environments (Controls and Enforcement) Amendment Act 2011
    • (1) The purpose of Part 1 of the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011 is to amend this Act so that it—

      • (a) generally prohibits the display of tobacco products in or at the outside of retail and other sales outlets, but also provides for temporary transitional exemptions from compliance during a 12-month transition period:

      • (b) prohibits the display, on the outside of retail premises, of retailers' names or trading names that are or include words, phrases, trade marks, or company names that have the effect of advertising the availability of tobacco products:

      • (c) treats sales-outlet notices or signs and Internet-sales messages that are or include tobacco product health or purchase age information or warnings as prohibited advertisements unless those sales-outlet notices or signs or Internet-sales messages are ones that it requires or permits:

      • (d) requires people who offer tobacco products or herbal smoking products for Internet sale to make visible on their Internet sites health and purchase age information or warnings:

      • (e) prohibits (more fully, or for the first time) manufacturers, importers, distributors, and retailers of tobacco products from sponsoring activities involving the use of tobacco product trade marks:

      • (f) prohibits manufacturers, importers, distributors, and retailers of tobacco products from sponsoring activities involving exclusive supply arrangements:

      • (g) facilitates the enforcement of prohibitions on distribution or supply of tobacco products free of charge or at a reduced charge, or with rewards, by providing that a term of an arrangement has no effect if compliance with the term would prevent or limit compliance with those prohibitions:

      • (h) is adjusted by related amendments and repeals.

      (2) The purpose of Part 2 of the Smoke-free Environments (Controls and Enforcement) Amendment Act 2011 is to amend this Act so that—

      • (a) it makes an infringement notice scheme available to enforce specified prohibitions, including the prohibitions on the sale of tobacco products and herbal smoking products to people younger than 18 years:

      • (b) its provisions relating to offences, regulations, and amendments are adjusted in the light of the amendments made to it by that Amendment Act.

Related amendments to enforcement officers' powers

20  Requirement to give identifying information
  • (1) Section 41B(1) is amended by omitting have been sold to a person younger than 18 years and substituting have been sold, or have after they are sold been delivered, to a person younger than 18 years.

    (2) Section 41B(1) is amended by omitting in a place where tobacco products or herbal smoking products are sold from time to time and substituting in or from a place where tobacco products or herbal smoking products are sold, or after they are sold (at that place or another place) are delivered, from time to time.

    (3) Section 41B(1)(a) and (b) are amended by omitting to have sold the products and substituting to have sold, or to have after they are sold delivered or arranged the delivery of, the products.

21  Purposes for which powers may be used
  • Section 41C(2) is repealed and the following subsection substituted:

    • (2) The powers given by section 41B must be used only for, and only to the extent necessary for, finding out the name and address of (or, if the address is not within the knowledge of the person asked, the name and any other identifying information within the person's knowledge relating to) a person the enforcement officer concerned believes to have sold, or to have after selling them delivered or arranged the delivery of, tobacco products or herbal smoking products to a person younger than 18 years in or from a place where tobacco products or herbal smoking products are sold, or having been sold (at that place or another place) are delivered, from time to time.


Legislative history

6 December 2010Introduction (Bill 267–1)
9 December 2010First reading and referral to Health Committee
8 April 2011Reported from Health Committee (Bill 267–2)
23 June 2011Second reading
13 July 2011Committee of the whole House
14 July 2011Third reading
22 July 2011Royal assent

This Act is administered by the Ministry of Health.