Smokefree Environments and Regulated Products (Vaping) Amendment Bill

Smokefree Environments and Regulated Products (Vaping) Amendment Bill

Government Bill

222—1

Explanatory note

General policy statement

This Bill amends the Smoke-free Environments Act 1990 (the Act) to bring the provisions of the Act up-to-date and to ensure that all regulated products (tobacco smoking products, herbal smoking products, smokeless tobacco products, and vaping products) are adequately covered.

The concept of a “regulated product” is introduced to incorporate the broader scope of products regulated under the Act. It is intended to provide flexibility so that the amended Act can more readily incorporate reduced-harm products that may come along in future, including those which may not be anticipated at present (in contrast to the significant amendments that have been necessary to incorporate vaping and vaping products).

The Bill aims to take a balanced approach to the regulation of vaping and smokeless tobacco products. It acknowledges that vaping and smokeless tobacco products are less harmful than smoking and that they may help some people to quit smoking. At the same time, it reflects concerns about children’s and young people’s access to and use of these products.

To protect children and young people from the risks associated with vaping and using smokeless tobacco products, the Bill extends many of the existing provisions of the Act to vaping products and heated tobacco devices (the tobacco component of smokeless tobacco is already regulated).

Part 1 of the principal Act is amended to prohibit vaping and the use of heated tobacco products in legislated smokefree areas (ie, indoor workplaces, early childhood centres, and schools).

New Part 2 of the principal Act extends, to the extent applicable, the existing restrictions on the advertising, promotion, sale, and distribution of tobacco products to all regulated products. This includes placing restrictions on—

  • the sale, and supply in a public place, of vaping products and heated tobacco devices to people under the age of 18 years:

  • inducements and rewards associated with vaping products and heated tobacco devices, for example, discounts and loyalty points (with some exemptions for specialist vape retailers).

However, the Bill also recognises that smokers need support and advice to successfully switch to a much less harmful product. It, therefore, exempts vaping products from some of the provisions that apply to tobacco products. It enables all retailers to display products in-store, in contrast to requirements that require tobacco products to be out of the public’s sight.

In addition, the Bill makes a distinction between specialist vape retailers and generic retailers, such as dairies, supermarkets, and service stations. The Bill enables specialist vape stores to be approved as such by the Director-General of Health. The Bill allows an employee of an approved vape store to give advice and recommendations about vaping products to a customer within that place of business. It also enables approved vape stores to—

  • allow customers to vape within the store for the purpose of sampling products before purchase:

  • give discounts, loyalty points, etc:

  • sell vaping products without any restrictions on flavours:

  • use the words “vape” and “vaping” in their trading name.

In addition, the Bill allows—

  • public health messages approved by the Director-General of Health:

  • registered health practitioners and other specified health workers to give advice and recommendations about vaping products to patients or clients to support them to switch, thereby reducing the harm to their health caused by smoking.

New Part 3 of the principal Act applies provisions enabling standardised packaging requirements to be set in regulations for all regulated products. The intent is to set tailored requirements for different product types that acknowledge their different risk profiles.

This Part also retains the existing prohibitions on the import for sale, distribution, etc, of tobacco products suitable for chewing or any other oral use (eg, snus).

New Part 4 of the principal Act sets out new provisions to regulate the safety of vaping products and smokeless tobacco products. This recognises that, while they are less harmful than smoking, they are not risk-free. This Part is intended to also be suitable for regulating the safety of any products that may be newly regulated in future.

The Bill requires manufacturers and importers to notify a vaping or smokeless tobacco product to the Ministry of Health before marketing it and to certify that the product meets any applicable standards. The notification system is to support rapid follow-up and remedial action should any safety issues arise with a product or product part.

Other provisions in the Bill enable product safety requirements to be set by regulations, require manufacturers and importers to report adverse reactions, and enable the Director-General of Health to issue product recalls, suspend and cancel product notifications, and issue warning statements about products.

Flavours may be used to attract children and young people to vape or use smokeless tobacco products, however, they also seem to be an important factor in supporting smokers to switch. The Bill allows generic retailers to sell only the flavours that are set out in Part 1 of new Schedule 2 (ie, tobacco, menthol, and mint). There are no flavour restrictions on approved specialist vape retailers (other than any prohibited flavour). The list of flavours in the schedule will be able to be amended over time by regulations. The Bill also prohibits the use of colouring substances in vaping liquid as data does not support their safe use.

The product safety regime set out in new Part 4 will be cost recovered from the regulated industry, consistent with Treasury’s Guidelines for Setting Charges in the Public Sector. The Bill enables fees and levies payable to be prescribed by regulations.

In addition to provisions related to the regulation of vaping products and smokeless tobacco products, the Bill—

  • allows for an assessment tool to be provided in regulations to support a determination of whether a space within a premise, such as a bar, is an open area (where smoking is allowed) or an internal area (where smoking is prohibited). This aims to provide clarity to business owners and enforcement officers:

  • enables allowable content for manufacturers’ price lists to be set out in regulations to prevent price lists from being used for promotional purposes:

  • repeals the provision that allows an exemption from the Act’s advertising and sponsorship prohibitions for multi-national sporting events—a provision that is out-of-date.

The Bill is drafted to commence on the day after the date that it receives the Royal assent. Transitional provisions are provided to give time for existing businesses to adjust, as follows:

  • 6 months from Royal assent for the prohibition on sale by a generic retailer of a vaping product or smokeless tobacco product containing a flavour other than a permitted flavour:

  • 6 months from Royal assent for a manufacturer or importer to notify a vaping or smokeless tobacco product.

Departmental disclosure statement

The Ministry of Health is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Ministry of Health produced a regulatory impact assessment on 7 January 2019 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

This Bill amends the Smoke-free Environments Act 1990 to enable the Act to regulate vaping products in the same manner (to the extent applicable) as tobacco products. For that purpose, the term regulated product (which means a tobacco product, vaping product, or herbal smoking product) replaces most references to tobacco product in the Act. Many provisions that applied to tobacco products will now also apply to vaping products and herbal smoking products.

Parts 2, 2A, and 3 of the Act are replaced with new Parts 2 to 5. New Parts 2, 3, and 5 carry over most of the provisions currently in Parts 2, 2A, and 3, but they are revised, updated, and restructured.

New Part 4 contains provisions that apply to vaping products and smokeless tobacco products sold in New Zealand. Manufacturers and importers of those products must not sell the products unless the products have been notified in accordance with new Part 4. New Part 4 also imposes obligations on retailers of vaping products and smokeless tobacco products.

Clause 1 is the Title clause.

Clause 2 provides that this Act comes into force on the day after the date on which it receives the Royal assent, except for—

  • the restrictions on the visibility of regulated products (other than vaping products) from the place of business, which come into force 1 month after the Act receives the Royal assent (see new section 36 as inserted by clause 26):

  • the following provisions (as inserted by clause 26) which come into force 6 months after the Act receives the Royal assent:

    • new sections 59 to 62, which requires manufacturers and importers of vaping products and smokeless tobacco products to notify the product before sale in New Zealand:

    • new section 63(2), which prohibits retailers (other than specialist vape retailers) from selling vaping products that contain a flavour that is not listed in Part 1 of new Schedule 2):

    • new section 73, which requires the Director-General to establish a database for the purpose of new Part 4.

Part 1Amendments to Smoke-free Environments Act 1990

Clause 3 provides that this Part amends the Act that was previously called the Smoke-free Environments Act 1990 (the principal Act).

Clause 4 renames the principal Act as the Smokefree Environments and Regulated Products Act 1990.

Key definitions

Clause 5 amends the interpretation section to insert new terms, enable current terms to apply to regulated products, and replace the definition of open area. A summary of important new terms and their meanings is set out in the table below:

TermItems covered or meaning
heated tobacco producta smokeless tobacco product with a device that uses, or facilitates the use of, heat to aerosolise nicotine from tobacco leaf directly
smokeless tobacco producta tobacco product intended to be used without ignition or combustion
regulated producttobacco product, vaping product, or herbal smoking product
to vapeto inhale using a vaping device or a heated tobacco product
vaping device

a device that—

  • aeorosolises a substance (or mixture of substances) by heating it for the purpose of inhalation through a mouthpiece; and

  • is sold as a complete unit or to be assembled from individual components

vaping productvaping device, vaping substance, 1 or more components of a vaping device, or any package containing 2 or more of those items
vaping substancea substance or mixture of substances intended to be aerosolised with a vaping device

The term open area is redefined to mean a part of any premises that is not an internal area as determined in accordance with any criteria or means prescribed in regulations. The definition of internal area is repealed.

Clause 6 amends the purposes of this Act (set out in new section 3A) to apply to regulated provisions and to include the prevention of normalisation of vaping and the regulation of the safety of vaping products and smokeless tobacco products.

Clause 7 relates to transitional, savings, and related provisions.

Part 1 of the principal Act contains prohibitions and restrictions relating to smoking in workplaces and public areas. Clauses 8 to 20 amends those prohibitions and restrictions to apply also to vaping (whether through a vaping device or a heated tobacco product). The changes to Part 1 include—

  • providing that a purpose of Part 1 is to prevent the normalisation of vaping (clause 9):

  • prohibiting vaping in workplaces, schools, early childhood education and care centres, aircraft, passenger service vehicles, certain travel premises, licensed premises, restaurants, casinos, and certain gaming machine venues (clauses 10 and 13 to 20):

  • enabling an employer to permit vaping in employment vehicles if certain conditions are met (clause 11):

  • enabling an employer to permit vaping by patients or residents in rest homes and care institutions if certain conditions are met (clause 12).

Vaping in approved premises of specialist vape retailer exempt

Clause 21 inserts new sections 14 and 14A.

New section 14 is new and exempts from Part 1—

  • a person who vapes in any approved vaping premises of a specialist vape retailer; and

  • the specialist vape retailer who allows the person to vape in those premises.

New section 14(2) requires specialist vape retailers to take all practicable steps to prevent people under the age of 18 years from entering the retailer’s approved vaping premises. A retailer who fails to take those steps commits an offence punishable by a fine not exceeding $5,000 or $10,000 if the retailer is a body corporate.

A person who sells vaping products from retail premises may apply under new section 14A to the Director-General for approval as a specialist vape retailer. The Director-General must not give approval unless satisfied that—

  • the retail premises for the sale of the vaping products are a fixed permanent structure; and

  • at least 85% of the person’s total sales are or will be from the sale of vaping products; and

  • any requirements in regulations have been met.

Clauses 22 and 23 amend sections 15 and 17 respectively as a result of the broadening of the Act to apply to regulated products.

Clauses 24 and 25 make minor and consequential amendments to sections 17A and 18.

Clause 26 replaces Parts 2 to 3 with new Parts 2 to 5.

New Part 2: Restrictions on advertising, promotion, sale, and distribution of regulated products

The provisions in new Part 2 are taken from sections 21 to 32AA, 36, and 36AAB of the Act. They are widened to apply to regulated products and restructured as follows:

  • subpart 1 contains restrictions on the advertising of regulated products:

  • subpart 2 contains restrictions on sponsorship and related activities involving the use of a regulated product trade mark or a related company name:

  • subpart 3 contains prohibitions relating to the supply and distribution of regulated products:

  • subpart 4 contains prohibitions relating to inducements and rewards involving regulated products:

  • subpart 5 restricts the visibility of a regulated product from the place from which it is sold:

  • subpart 6 contains requirements relating to point-of-sale and Internet-sales health information or warnings:

  • subpart 7 prohibits the sale, delivery, and supply of regulated products and toy regulated products to people younger than 18 years:

  • subpart 8 contains provisions relating to the sale of regulated products by way of automatic vending machines.

The offence provisions in section 36 are incorporated into the individual sections to which the offence relates. The monetary penalty for an offence remains unchanged for tobacco products and will be shared by herbal smoking products. However, if the offence involves a vaping product or a smokeless tobacco product, the monetary penalty is no more than a third of the penalty for an offence involving a tobacco product.

Additional exemptions from advertising prohibition

New section 24 carries forward the current exemptions from the advertising prohibition and includes the following new exemptions:

  • a public health message approved by the Director-General:

  • the display, in accordance with regulations, of vaping products in any retail store or on any Internet site:

  • the provision, in accordance with regulations, of information relating to vaping products in any retail store or on any Internet site:

  • the giving of advice and recommendations by specialist vape retailers about vaping products in the approved vaping premises:

  • advice or messages given by suitably qualified health workers to an individual for the purpose of supporting the individual to switch from smoking to vaping.

Prohibition on visibility of regulated products does not apply to vaping products

New section 36 carries forward the requirement in section 23A that sellers of regulated products must not allow the product to be visible from outside the place of business or from any area inside the place of business to which the public have access. The requirement, however, does not apply to vaping products. Other situations in which the requirement does not apply are carried forward in new section 36(3) and (4).

New Part 3: Packaging, labelling, and constituents of regulated products

New Part 3

  • requires the standardised packaging of regulated products:

  • requires regulated product packages to display messages and information required by regulations:

  • prohibits the labelling or advertising of regulated products as suitable for chewing or any other oral use:

  • restricts the quantities or amounts in which certain regulated products are packaged for sale:

  • regulates the constituents of regulated products and provides for testing of those constituents (annually and as required by the Director-General).

New section 52(1)(c) is new. It prohibits the sale of regulated products (other than cigarettes and loose tobacco) in a package containing less than the prescribed number for that product.

New section 53(3) (which is carried forward from section 29) prohibits the labelling or advertising of regulated products as suitable for chewing or any other oral use. Oral use is defined in new section 53(4) to mean the absorption of the product primarily through the oral mucosa.

New Part 4: Regulated products that must be notified

Part 4 is new. Its purpose is to regulate the safety of vaping products and smokeless tobacco products (defined as notifiable products).

The key requirements for a notifiable product (key requirements) are as follows:

  • the product must not contain a prohibited ingredient (declared by the Director-General):

  • the product must not contain a prohibited flavour (listed in Part 2 of new Schedule 2):

  • if the product is, or contains, a vaping substance, it must not contain a colouring substance (see new section 66).

Obligations of manufacturer and importers

A manufacturer or an importer of a notifiable product (notifier)—

  • must not sell a notifiable product in New Zealand unless the product has been notified and complies with safety requirements prescribed in regulations for the product:

  • must be a New Zealand resident or a company registered in New Zealand:

  • must, before notifying the product, ensure the product complies with—

    • its product safety requirements:

    • the key requirements:

    • any applicable requirements in regulations:

  • must notify the product in the manner described in new section 62 (providing false or misleading information, without reasonable excuse, is an offence punishable by a fine not exceeding $400,000):

  • must advise the Director-General of any adverse reaction to the product (failure to advise, without reasonable excuse, is an offence punishable by a fine not exceeding $400,000):

  • must renotify the product if the product undergoes a significant change as defined in new section 65.

Obligations of retailers

Retailers of notifiable products must not sell—

  • a notifiable product in New Zealand that has not been notified:

  • a notifiable product that does not meet its product safety requirements:

  • a notifiable product whose notification has been cancelled or suspended:

  • a vaping product containing a flavour that is not listed in Part 1 of new Schedule 2 (however, specialist vape retailers may sell vaping products containing any flavour except a prohibited flavour).

A retailer who, without reasonable excuse, does any of the above commits an offence and is liable to a fine not exceeding $400,000 in the case of a large retailer, or $50,000 in any other case.

Specialist vape retailers who sell vaping products that contain a flavour that is not listed in Part 1 of new Schedule 2 must sell that product only from their approved vaping premises or their Internet site.

Director-General’s powers

The Director-General may—

  • declare a substance to be a prohibited ingredient if satisfied that the substance is unsafe for use in a notifiable product:

  • require a notifier to provide information relating to the safety of the product:

  • issue a public warning if the Director-General has reasonable grounds to believe that the product’s continued availability poses a risk of harm to people:

  • if satisfied that the product’s continued availability poses an unacceptable risk of harm to people,—

    • issue a public statement to that effect; and

    • by notice, require the notifier to arrange for the product to be recalled (failure to comply with the notice, without reasonable excuse, is an offence punishable by a fine not exceeding $400,000):

  • suspend a product notification for 1 month or cancel it if the Director-General—

    • has reasonable grounds to believe that the continued availability of the product poses an unacceptable risk of harm to people; or

    • has reasonable grounds to believe the notifier has given false, misleading, or incomplete information in the product notification or when required under new section 68; or

    • has reasonable grounds for concern because of new information about the safety of the product; or

    • has reasonable grounds to believe that the product contains a prohibited ingredient, prohibited flavour, or a colouring substance.

New Part 5: Regulations, enforcement, and other matters

New section 74 provides an outline of new Part 5.

Subpart 1: Regulations

New sections 75 to 80 enables the Governor-General to make regulations for specified purposes. Those purposes include—

  • making regulations that are expressly contemplated by the Act:

  • making regulations for administrative matters (such as forms, notices, and records):

  • making regulations specifying requirements relating to the standardised packaging of regulated products:

  • making regulations relating to notifiable products (including the prescribing of product safety requirements):

  • making regulations imposing fees and levies.

Subpart 2: Infringement offences

New sections 81 to 84 relate to infringement offences. An infringement offence means an offence against any of new sections 33(4), 37(3), 38(3), 39(2), 40(2), 41(2), 42(3), 43(4), 46(4), 50(2), and 53(3). The maximum infringement fee is $2,000 for an offence against new sections 37(3), 38(3), 40(2), 41(2), 42(3), 43(4), 46(4), and 50(2). If the offence relates to new section 33(4), 39(2), or 53(3), the maximum infringement fee must be at least $5,000 but no more than $10,000.

Subpart 3: Enforcement officers

New sections 85 to 93

  • provide for the appointment of enforcement officers by the Director-General:

  • protect enforcement officers from civil and criminal liability:

  • provide enforcement officers with powers of entry and inspection:

  • enable an enforcement officer to require a person to provide identifying information in specified circumstances:

  • enable an enforcement officer to apply for a search warrant:

  • provide safeguards relating to the powers of entry and inspection and the power to require information:

  • require enforcement officers to identify themselves when exercising certain powers:

  • specify offences for intentionally obstructing, hindering, or resisting enforcement officers and providing false or misleading information.

Subpart 4: Annual returns and reports

New section 94 contains annual reporting requirements for manufacturers and importers of regulated products and specialist vape retailers.

Schedules

Clause 27 and Schedule 1 provides for transitional and savings provisions.

Clause 28 inserts new Schedule 2, which specifies flavours that may be contained in a vaping product sold by any retailers and provides for any prohibited flavours.

Part 2Amendments to other enactments

Clause 29 and Schedule 3 provide for consequential amendments to other enactments.

Hon Jenny Salesa

Smokefree Environments and Regulated Products (Vaping) Amendment Bill

Government Bill

222—1

Contents

Explanatory note
1Title
2Commencement
3Principal Act
4Title of principal Act changed
5Section 2 amended (Interpretation)
6Section 3A replaced (Purposes of this Act)
3APurposes of this Act
7New section 3B inserted (Transitional, savings, and related provisions)
3BTransitional, savings, and related provisions
8Part 1 heading replaced
9Section 4 amended (Purposes of this Part)
10Section 5 amended (Smoking in workplaces prohibited)
11Section 5A amended (Employer may permit smoking in vehicle with consent of users)
12Section 6 amended (Dedicated smoking rooms in hospital care institutions, residential disability care institutions, and rest homes)
13Section 7A amended (Smoking prohibited at schools and early childhood education and care centres)
14Section 8 amended (Smoking prohibition on aircraft)
15Section 9 amended (Smoking restricted in passenger service vehicles)
16Section 11 amended (Smoking prohibited in certain travel premises
17Section 12 amended (Smoking on licensed premises)
18Section 13 amended (Smoking in restaurants)
19Section 13A amended (Smoking in casinos)
20Section 13B amended (Smoking in certain gaming machine venues)
21Section 14 replaced (Enforcement officers)
14Specialist vape retailers and vaping in approved vaping premises exempt
14AApplication for approval as specialist vape retailer
22Section 15 amended (Complaints relating to workplace smoking)
23Section 17 amended (Offences in respect of smoking)
24Section 17A amended (Penalties)
25Section 18 amended (Prosecution of offences)
26Parts 2 to 3 replaced
21Outline of this Part
22Purposes of this Part
23Publishing regulated product advertisement prohibited
24Specified publications exempt from advertising prohibition
25Retailers, vending machines, and Internet sellers exempt from advertising prohibition in certain circumstances
26Liability of employees, employers, agents, and principals
27Defined terms in this subpart
28Sponsoring activity involving use of trade mark, etc, of regulated products
29Sponsoring activity involving exclusive supply arrangement
30Use of trade marks, etc, on goods other than regulated products or in relation to sponsored events
31Exemption for craft in emergencies
32Free distribution of regulated product prohibited
33Distribution and supply of regulated products with other products prohibited
34Rewards involving regulated product prohibited
35Arrangements conflicting with Act have no effect
36Regulated product (other than vaping product) must not be visible from place of business
37Point-of-sale health information or warning signs
38Internet-sales health information or warnings
39Sale and delivery of regulated product to people younger than 18 years prohibited
40Supplying regulated product to people younger than 18 years prohibited
41Sale of toy regulated products to people younger than 18 years prohibited
42Point-of-sale purchase age information
43Internet-sales purchase age information or warnings
44Court may order certain repeat offenders not to sell regulated product
45Regulated products must not be visible from outside automatic vending machines
46Automatic vending machines must not be located where public have access
47Automatic vending machines must display health messages required by or under this Act
48Purposes of this Part
49Standardised packaging of regulated products
50Offence in respect of standardised packaging of regulated products
51Messages and information required for regulated product package
52Restrictions on sale of certain regulated products in small quantities
53Regulated product not to be advertised or labelled as suitable for chewing, etc
54Limits on harmful constituents of tobacco products and herbal smoking products
55Annual testing for constituents of prescribed regulated products
56Director-General may require testing or further testing
57Purpose of this Part
58Defined terms
59Notifier must not sell product unless it has been notified
60Notifier must be New Zealand resident or company registered in New Zealand
61Pre-notification requirements
62How to notify product
63Obligations of retailers
64Obligation to notify adverse reaction
65When notifiable product must be renotified
66Substances that notifiable product must not contain
67Declaration of prohibited ingredient
68Director-General may require notifier to provide information about safety of notifiable product
69Director-General may issue warning
70Recall
71Director-General may suspend product notification
72Cancellation of product notification
73Establishment of database and confidentiality of certain information
74Outline
75Regulations
76Regulations under section 75
77Regulations for standardised packaging (including messages and information)
78Regulations relating to notifiable products
79Regulations imposing fees
80Regulations imposing levies
81Infringement offences
82Commission of infringement offences
83Infringement notices
84Payment of infringement fees
85Appointment of enforcement officers
86Protection of people acting under authority of this Act
87Powers of entry and inspection
88Enforcement officer may require identifying information
89Search warrant
90Purposes for which powers may be used
91Duties of enforcement officers
92Offence to obstruct enforcement officers, intentionally fail to comply with section 87, or give false and misleading information
93Enforcement
94Annual reporting requirements for manufacturers, importers, and specialist vape retailers
27Schedule amended
28New Schedule 2 inserted
29Enactments amended

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Smokefree Environments and Regulated Products (Vaping) Amendment Act 2020.

2 Commencement

(1)

This Act, except as provided in subsections (2) and (3), comes into force on the day after the date on which it receives the Royal assent.

(2)

New section 36 (which restricts the visibility of regulated products from the place of business) as inserted by section 26 comes into force 1 month after the date on which this Act receives the Royal assent.

(3)

The following provisions inserted by section 26 come into force 6 months after the date on which this Act receives the Royal assent:

(a)

new sections 59 to 62 (which requires a manufacturer or an importer of a vaping product or smokeless tobacco product to notify the product in accordance with new Part 4 before sale in New Zealand); and

(b)

new section 63(2) (which restricts the flavours that may be contained in vaping products sold by retailers (other than specialist vape retailers)); and

(c)

new section 73 (which requires the Director-General to establish a database for the purpose of new Part 4).

Part 1 Amendments to Smoke-free Environments Act 1990

3 Principal Act

This Part amends the Act that was previously called the Smoke-free Environments Act 1990 (the principal Act).

4 Title of principal Act changed

Replace section 1(1) with:

(1)

This Act is the Smokefree Environments and Regulated Products Act 1990.

5 Section 2 amended (Interpretation)

(1)

In section 2(1), repeal the definitions of dedicated smoking room, enforcement officer, open area, organised activity, package, point of sale, and tobacco product advertisement.

(2)

In section 2(1), insert in their appropriate alphabetical order:

approved vaping premises means premises to which a person’s approval as a specialist vape retailer applies

dedicated room means an internal area in a hospital care institution, a residential disability care institution, or a rest home that is used solely to—

(a)

enable patients or residents who smoke to smoke, or to socialise with each other in a place where smoking is permitted; or

(b)

enable patients or residents who vape to vape, or to socialise with each other in a place where vaping is permitted

emissions means the smoke or aerosolised vaping substance produced by the use of a regulated product, whether inhaled, exhaled, or otherwise

enforcement officer means a person appointed under section 85

harmful constituent means a substance declared by regulations to be a harmful constituent in a regulated product of a specified class or description

heated tobacco product means a smokeless tobacco product that has a device that uses or facilitates the use of heat to aerosolise nicotine from tobacco leaf directly

open area, in relation to any premises, means a part of the premises that is not an internal area as determined in accordance with any criteria or means prescribed in regulations

package means a pack, carton, wrapping, or other container in which a regulated product is sold at retail

point of sale means a checkout, till, or cashbox where regulated products may be bought

regulated product means a tobacco product, vaping product, or herbal smoking product

regulated product advertisement

(a)

means any words, whether written, printed, or spoken (including on film, video recording, or other medium, or broadcast or telecast), and any pictorial representation, design, or device, used to—

(i)

encourage the use of a regulated product; or

(ii)

notify the availability of a regulated product; or

(iii)

promote the sale of a regulated product; or

(iv)

promote smoking or vaping behaviour; and

(b)

includes—

(i)

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

(ii)

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

(iii)

the use of the company name of a regulated product manufacturer in any advertisement or promotion to the public where the company name or any part of it is used as, or is included in, a regulated product trade mark,—

and advertise has a corresponding meaning

regulations means regulations made under this Act

retailer means a person engaged in any business that includes the sale of regulated products at retail

smokeless tobacco product means a tobacco product that is intended to be used in a way that does not involve ignition or the combustion process

specialist vape retailer means a person who is approved by the Director-General as a specialist vape retailer under section 14A

to vape means to inhale using a vaping device or a heated tobacco product, and vaping has a corresponding meaning

toy regulated product means—

(a)

a toy tobacco product; or

(b)

an object that—

(i)

looks like a vaping product or a heated tobacco product and can be used to simulate vaping; but

(ii)

cannot be used for vaping and has a primary purpose other than to help people to stop vaping

vaping device means a device that—

(a)

aerosolises a substance or a mixture of substances by heating it for the purpose of inhalation through a mouthpiece; and

(b)

is sold as a complete unit or to be assembled from individual components

vaping product means any of the following:

(a)

a vaping device:

(b)

a vaping substance:

(c)

any 1 or more components of a vaping device:

(d)

a package containing 2 or more items described in any of paragraphs (a) to (c)

vaping substance means a substance or mixture of substances that is intended to be aerosolised with a vaping device

(3)

In section 2(1), definition of Internet sale, replace “tobacco product or herbal smoking product” with “regulated product”.

(4)

After section 2(3), insert:

(4)

For the purposes of this Act,—

(a)

a vaping product that contains tobacco is not a tobacco product:

(b)

a vaping device is not a medical device within the meaning of the Medicines Act 1981:

(c)

a vaping substance is not a medicine within the meaning of the Medicines Act 1981.

6 Section 3A replaced (Purposes of this Act)

Replace section 3A with:

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 prevent the normalisation of vaping; and

(c)

to regulate and control the marketing, advertising, and promotion of regulated products (whether directly, including through the appearance of regulated products and packages, or through the sponsoring of other products, services, or events) in order to improve public health by—

(i)

discouraging people, especially children and young people, from taking up smoking; and

(ii)

discouraging non-smokers, especially children and young people, from taking up vaping or using smokeless tobacco products; and

(iii)

encouraging people to stop smoking, vaping, or otherwise using regulated products; and

(iv)

discouraging people who have stopped smoking, vaping, or otherwise using regulated products from resuming smoking, vaping, or using regulated products; and

(d)

to regulate the safety of vaping products and smokeless tobacco products; and

(e)

to monitor and regulate the presence of harmful constituents found in regulated products and their emissions; and

(f)

to give effect to certain obligations and commitments that New Zealand has as a party to the WHO Framework Convention on Tobacco Control, done at Geneva on 21 May 2003.

(2)

Subsection (1) does not limit or affect the particular purposes of Parts 1, 2, 3, and 4.

7 New section 3B inserted (Transitional, savings, and related provisions)

After section 3A, insert:

3B Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

8 Part 1 heading replaced

Replace the Part 1 heading with:

Part 1 Smoking and vaping prohibited in workplaces and public areas

9 Section 4 amended (Purposes of this Part)

(1)

After section 4(a), insert:

(aa)

to prevent the normalisation of vaping; and

(2)

In section 4(b), after “smoke”, insert “or vape”.

10 Section 5 amended (Smoking in workplaces prohibited)

(1)

In the heading to section 5, after Smoking, insert and vaping.

(2)

In section 5(1), after “smokes”, insert “or vapes”.

(3)

In section 5(1)(a) and (2), after “smoking”, insert “or vaping”.

(4)

In section 5(1)(b), replace “smoking room in which smoking” with “room in which smoking or vaping”.

(5)

In section 5(2), after “smoke”, insert “or vape”.

11 Section 5A amended (Employer may permit smoking in vehicle with consent of users)

(1)

In the heading to section 5A, after smoking, insert or vaping.

(2)

In section 5A, after “smoking”, insert “or vaping” in each place.

12 Section 6 amended (Dedicated smoking rooms in hospital care institutions, residential disability care institutions, and rest homes)

(1)

In the heading to section 6, delete smoking.

(2)

In section 6, replace “dedicated smoking room” with “dedicated room” in each place.

(3)

Replace section 6(1)(a) with:

(a)

the smoking takes only place in 1 or more dedicated rooms for smoking; and

(aa)

the vaping takes place only in 1 or more dedicated rooms for vaping; and

(4)

In section 6(1), after “smoking”, insert “or vaping” in each place.

(5)

In section 6(1)(c) and (2)(a), replace “smoke” with “emissions”.

(6)

In section 6(1)(c), replace “dedicated smoking rooms” with “dedicated rooms”.

(7)

Replace section 6(1)(d) with:

(d)

for each dedicated room, an adequate equivalent room is available for patients or residents who wish to socialise in an atmosphere without emissions.

(8)

In section 6(2)(a)(ii), replace “dedicated smoking rooms” with “dedicated rooms”.

(9)

In section 6(3)(a) and (b), after “smoke”, insert “or vape”.

13 Section 7A amended (Smoking prohibited at schools and early childhood education and care centres)

(1)

In the heading to section 7A, after Smoking, insert and vaping.

(2)

In section 7A(1)(a), after “smokes”, insert “or vapes”.

(3)

In section 7A(1)(b) and (3)(b), after “smoking”, insert “and vaping”.

(4)

In section 7A(3), after “smokes”, insert “or vapes”.

(5)

In section 7A(3)(b), replace “smoke” with “emissions”.

14 Section 8 amended (Smoking prohibition on aircraft)

(1)

In the heading to section 8, replace prohibition with and vaping prohibited.

(2)

In section 8(1), replace“ shall not permit any person to smoke” with “must not permit any person to smoke or vape”.

15 Section 9 amended (Smoking restricted in passenger service vehicles)

(1)

In the heading to section 9, after Smoking, insert and vaping.

(2)

In section 9(2) and (3), after “smoke”, insert “or vape”.

16 Section 11 amended (Smoking prohibited in certain travel premises

(1)

In the heading to section 11, after Smoking, insert and vaping.

(2)

In section 11(2) and (3), after “smoke”, insert “or vape”.

17 Section 12 amended (Smoking on licensed premises)

(1)

In the heading to section 12, after Smoking, insert and vaping.

(2)

In section 12(1), after “smokes”, insert “or vapes”.

(3)

In section 12(2), after “smoking”, insert “or vaping”.

(4)

In section 12(3), after “smoke”, insert “or vape”.

18 Section 13 amended (Smoking in restaurants)

(1)

In the heading to section 13, after Smoking, insert and vaping.

(2)

In section 13(1), after “smokes”, insert “or vapes”.

(3)

In section 13(2), after “smoking”, insert “or vaping”.

(4)

In section 13(3), after “smoke”, insert “or vape”.

19 Section 13A amended (Smoking in casinos)

(1)

In the heading to section 13A, after Smoking, insert and vaping.

(2)

In section 13A(1), after “smokes”, insert “or vapes”.

(3)

In section 13A(2), after “smoking”, insert “or vaping”.

(4)

In section 13A(3), after “smoke”, insert “or vape”.

20 Section 13B amended (Smoking in certain gaming machine venues)

(1)

In the heading to section 13B, after Smoking, insert and vaping.

(2)

In section 13B(1), after “smokes”, insert “or vapes”.

(3)

In section 13B(2), after “smoking”, insert “or vaping”.

(4)

In section 13B(3), after “smoke”, insert “or vape”.

21 Section 14 replaced (Enforcement officers)

Replace section 14 with:

14 Specialist vape retailers and vaping in approved vaping premises exempt

(1)

This Part does not apply to—

(a)

a person who vapes in any approved vaping premises of a specialist vape retailer; and

(b)

the specialist vape retailer who allows the person to vape in those premises.

(2)

A specialist vape retailer must take all practicable steps to prevent a person under the age of 18 years from entering the retailer’s approved vaping premises.

(3)

A specialist vape retailer who contravenes subsection (2) commits an offence and is liable,—

(a)

in the case of a body corporate, to a fine not exceeding $10,000; or

(b)

in any other case, to a fine not exceeding $5,000.

14A Application for approval as specialist vape retailer

(1)

A person who sells vaping products from retail premises may apply to the Director-General for approval to be a specialist vape retailer in relation to specified retail premises.

(2)

The Director-General must not give a person approval to be a specialist vape retailer unless satisfied that—

(a)

the retail premises in which the vaping products are or will be sold are a fixed permanent structure; and

(b)

at least 85% of the person’s total sales from the retail premises are or will be from the sale of vaping products; and

(c)

any requirements in regulations have been met.

(3)

It is a condition of an approval that the criteria in subsection (2)(a) and (c) continue to be complied with.

(4)

The Director-General may, in accordance with regulations, impose any other conditions on the approval.

(5)

The Director-General may suspend an approval if the Director-General has reasonable grounds to suspect that any condition of the approval is not being complied with.

(6)

The Director-General may cancel an approval if the Director-General is satisfied that any condition of the approval is not being complied with.

(7)

A person who provides false or misleading information in an application for approval to be a specialist vape retailer commits an offence and is liable to a fine not exceeding $10,000.

(8)

In making an assessment under subsection (2)(b), the Director-General may take into account the person’s total sales from the retail premises for the previous 12 months (if any) and any other information that the Director-General considers relevant.

22 Section 15 amended (Complaints relating to workplace smoking)

In the heading to section 15, replace workplace smoking with smoking or vaping in workplace.

23 Section 17 amended (Offences in respect of smoking)

(1)

In the heading to section 17, after smoking, insert and vaping.

(2)

In section 17(3), (4), and (6), replace “smoke” with “smoke or vape”.

(3)

Repeal section 17(9).

24 Section 17A amended (Penalties)

(1)

In section 17A(2), replace “subsection (2A), (8C), subsection (9), and subsection (10” with “and subsections (2A) and (8C)”.

(2)

Repeal section 17A(4).

25 Section 18 amended (Prosecution of offences)

In section 18(1), replace “section 14” with section 85.

26 Parts 2 to 3 replaced

Replace Parts 2 to 3 with:

Part 2 Restrictions on advertising, promotion, sale, and distribution of regulated products

21 Outline of this Part

(1)

Subpart 1 contains restrictions on the advertising of regulated products.

(2)

Subpart 2 contains restrictions on sponsorship and related activities involving the use of a regulated product trade mark or a related company name.

(3)

Subpart 3 contains prohibitions relating to the supply and distribution of regulated products.

(4)

Subpart 4 contains prohibitions relating to inducements and rewards involving regulated products.

(5)

Subpart 5 restricts the visibility of a regulated product from the place from which it is sold.

(6)

Subpart 6 contains requirements relating to point-of-sale health information or warnings.

(7)

Subpart 7 prohibits the sale, delivery, and supply of regulated products and toy regulated products to people younger than 18 years.

(8)

Subpart 8 contains provisions relating to the sale of regulated products by way of automatic vending machines.

22 Purposes of this Part

(1)

The purposes of this Part are—

(a)

to reduce the social approval of smoking, particularly among children and young people; and

(b)

to discourage non-smokers, particularly children and young people, from vaping and using tobacco products.

(2)

To achieve those purposes, this Part—

(a)

imposes controls on the marketing, advertising, and promotion of regulated products and their association through sponsorship with other products and events; and

(b)

requires health messages and other information to be displayed on automatic vending machines; and

(c)

prohibits the sale of regulated products and toy regulated products to people younger than 18 years.

Subpart 1—Restrictions on advertising of regulated products

23 Publishing regulated product advertisement prohibited

(1)

A person must not publish a regulated product advertisement in New Zealand, or arrange for another person to publish it in New Zealand, unless the person is authorised by or under this subpart or subpart 2.

(2)

A notice or sign must be treated as a regulated product advertisement if the notice or sign—

(a)

communicates information that is or includes product health information or warnings, 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 the products for sale (whether by retail or wholesale); and

(c)

is not required or permitted by this Act or regulations.

(3)

A message must be treated as a regulated product advertisement if the message—

(a)

communicates information that is or includes product health information or warnings, 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 or regulations.

(4)

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

(5)

A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable,—

(a)

in the case of a manufacturer, an importer, or a distributor,—

(i)

to a fine not exceeding $600,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $200,000; and

(b)

in the case of a large retailer,—

(i)

to a fine not exceeding $200,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $70,000; and

(c)

in any other case,—

(i)

to a fine not exceeding $50,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $15,000.

24 Specified publications exempt from advertising prohibition

(1)

Section 23 does not apply to—

(a)

any price list given to retailers of regulated products if the price list—

(i)

complies with regulations; and

(ii)

includes the health messages required by or under Part 3:

(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 regulated 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)

any regulated product advertisement published by a regulated products manufacturer in a magazine intended for distribution only to the manufacturer’s employees:

(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 regulated 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:

(f)

a public health message approved by the Director-General for the purposes of this Act or any of its Parts:

(g)

the following activities:

(i)

the display, in accordance with any regulations, of vaping products within any retail premises or on any Internet site; and

(ii)

the provision, in accordance with any regulations, of information (in any medium) relating to vaping products within those premises or on that Internet site:

(h)

the giving of advice and recommendations by a specialist vape retailer about vaping products to customers who are inside the retailer’s approved vaping premises:

(i)

any advice or message given by a suitably qualified health worker to an individual for the purpose of supporting the individual to switch from smoking to vaping.

(2)

In subsection (1)(i), suitably qualified health worker means—

(a)

a registered health practitioner; or

(b)

a person specified by the Director-General by notice in the Gazette for the purpose of subsection (1)(i).

25 Retailers, vending machines, and Internet sellers exempt from advertising prohibition in certain circumstances
Retailer exemption

(1)

A retailer of regulated products may do all or any of the following things:

(a)

in response to a product request, provide, inside that retailer’s place of business, information (in any medium) that—

(i)

is in the form of printed, written, or spoken words; and

(ii)

does no more than identify the regulated products available for purchase in that place and indicate their price; and

(iii)

complies with any requirements in regulations:

(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 regulated products in general are available for purchase in that place and the location or locations where they may be purchased; and

(ii)

complies with any requirements in regulations:

(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—

(i)

any word or expression signifying that a regulated product is available for purchase in that place; or

(ii)

the trade mark of a regulated product; or

(iii)

the company name of a manufacturer or an importer of regulated products.

(2)

Subsection (1)(c)(i) does not apply to a specialist vape retailer whose name or trade name includes the word “vape”, “vaping”, or any name derived from the word “vape”.

Vending machine exemption

(3)

A person who offers regulated 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—

(i)

identify (using only printed or written words) the regulated products; and

(ii)

indicate (using only printed or written words) their prices; and

(b)

complies with any requirements in regulations.

Internet seller exemption

(4)

A person who offers regulated products for Internet sale (whether by retail or wholesale) may, in response to a product request, allow to be visible on the person’s Internet site when people browse, enter, or otherwise access the site, information that—

(a)

is in the form of printed or written words; and

(b)

does no more than identify the regulated product and indicate its price; and

(c)

complies with any requirements in regulations.

(5)

Subsections (1)(a) and (b) and (4) do not limit the exemption in section 24(1)(g) relating to the display of, and provision of information relating to, vaping products.

(6)

In this section, product request means a request (however expressed) made for the purpose by another person who has asked to purchase a specified, or any available, regulated product.

26 Liability of employees, employers, agents, and principals

For the purposes of this Act, every person is deemed to publish a regulated product advertisement whether the person does so on the person’s own account or as the agent or employee of any other person.

Subpart 2—Restrictions on sponsorship and related activities

27 Defined terms in this subpart

In this subpart, unless the context otherwise requires,—

organised activity means a cultural, educational, sporting, or recreational activity or event that is to take place, is taking place, or has taken place, in whole or in part, in New Zealand

sponsor, in relation to an organised activity, means to do all or any of the following:

(a)

to organise or promote, before the activity is to take place, or during the time that it takes place, some or all of the activity:

(b)

to make, before the activity is to take place, or during or after the time that it takes place, a financial or non-financial contribution towards some or all of the activity:

(c)

to make, before the activity is to take place, or during or after the time that it takes place, a financial or non-financial contribution to a person—

(i)

in respect of that person’s organisation or promotion of some or all of the activity; or

(ii)

in respect of that person’s participation in some or all or the activity.

28 Sponsoring activity involving use of trade mark, etc, of regulated products

(1)

A manufacturer, importer, distributor, or retailer of regulated products must not sponsor an organised activity that involves the use, in the name of that activity, or on or through any thing other than a regulated product, of all or any of the following:

(a)

a regulated product trade mark:

(b)

all or any part of a company name included in a regulated product trade mark:

(c)

1 or more words, logos, colours, shapes, sounds, smells, or other elements of a regulated 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 who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable,—

(a)

in the case of a manufacturer, an importer, or a distributor,—

(i)

to a fine not exceeding $600,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $200,000; and

(b)

in the case of a large retailer,—

(i)

to a fine not exceeding $200,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $70,000; and

(c)

in any other case,—

(i)

to a fine not exceeding $50,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $15,000.

29 Sponsoring activity involving exclusive supply arrangement

(1)

A manufacturer, importer, distributor, or retailer of regulated products must not sponsor an organised activity that involves an arrangement for the person to be the only person supplying regulated products at, or for the purposes of, some or all of the activity.

(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 is not subject to, and does not override, the Commerce Act 1986.

(5)

A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable,—

(a)

in the case of a manufacturer, an importer, or a distributor,—

(i)

to a fine not exceeding $600,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $200,000; and

(b)

in the case of a large retailer,—

(i)

to a fine not exceeding $200,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $70,000; and

(c)

in any other case,—

(i)

to a fine not exceeding $50,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $15,000.

30 Use of trade marks, etc, on goods other than regulated products or in relation to sponsored events

(1)

A person must not use a regulated product trade mark—

(a)

on a non-regulated article; or

(b)

for the purpose of advertising or identifying to the public—

(i)

any non-regulated article; or

(ii)

any service, activity, or event; or

(iii)

any scholarship, fellowship, or other educational benefit,—

even though that person would be, but for this Act, entitled to use the trade mark on that article or for that purpose.

(2)

If a trade mark includes the company name, or part of the company name, of a manufacturer, importer, or distributor in New Zealand of any regulated product, no person may use that company name for the purpose of advertising or identifying to the public—

(a)

any non-regulated article; or

(b)

any service, activity, or event; or

(c)

any scholarship, fellowship, or other educational benefit,—

even though that person would be, but for this Act, entitled to use that trade mark or company name for that purpose.

(3)

A person must not distribute, sell, or offer or expose for sale any non-regulated article that bears a trade mark of a regulated product that is sold in New Zealand.

(4)

In this section, non-regulated article means an article that is not—

(a)

a regulated product; or

(b)

a package in which a regulated product is sold or shipped.

(5)

A person who, without reasonable excuse, contravenes subsection (1), (2), or (3) commits an offence and is liable,—

(a)

in the case of a manufacturer, an importer, or a distributor,—

(i)

to a fine not exceeding $600,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $200,000; and

(b)

in the case of a large retailer,—

(i)

to a fine not exceeding $200,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $70,000; and

(c)

in any other case,—

(i)

to a fine not exceeding $50,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $15,000.

31 Exemption for craft in emergencies

(1)

In this section, craft with a prohibited display means a craft on which is displayed the trade mark of a regulated product or the company name of a regulated product manufacturer.

(2)

If a craft with a prohibited display is compelled to enter New Zealand by reason of health or safety, or for the preservation of life or property, nothing in sections 23, 29, and 30 applies to that craft as long as it is in New Zealand for any of those reasons.

Subpart 3—Prohibited ways of supplying and distributing regulated products

32 Free distribution of regulated product prohibited

(1)

A manufacturer, distributor, importer, or retailer of regulated products must not do either of the following free of charge or at a reduced charge:

(a)

distribute any regulated product:

(b)

supply any regulated product to any person for subsequent distribution.

(2)

A retailer of regulated products must not supply free of charge, or at a reduced charge, any regulated product to any person for the purpose of that retailer’s business.

(3)

For the purposes of this section, a regulated product is distributed or supplied at a reduced charge if—

(a)

the charge for the product itself is reduced; or

(b)

the charge for distribution or supply of the product is not reduced or purports not to be reduced, but some other item is supplied free of charge or at a reduced charge, together with the product.

(4)

Subsection (1)(a) does not apply to the distribution of vaping products by a specialist vape retailer.

(5)

A person who, without reasonable excuse, distributes or supplies any regulated product in contravention of subsection (1) or (2) commits an offence and is liable,—

(a)

in the case of a manufacturer, an importer, or a distributor,—

(i)

to a fine not exceeding $600,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $200,000; and

(b)

in the case of a large retailer,—

(i)

to a fine not exceeding $200,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $70,000; and

(c)

in any other case,—

(i)

to a fine not exceeding $50,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $15,000.

(6)

It is a defence to a charge in respect of a contravention of subsection (1) if the person charged proves that they were merely giving a normal trade discount or normal trade rebate.

33 Distribution and supply of regulated products with other products prohibited

(1)

A manufacturer, distributor, importer, or retailer of regulated products must not—

(a)

distribute an accompanied regulated product; or

(b)

supply an accompanied regulated product to another person for later distribution.

(2)

A retailer of a regulated product must not supply an accompanied regulated product to another person for the purpose of that retailer’s business.

(3)

In this section, accompanied regulated product means a regulated product that is—

(a)

packed together with a product that is not a regulated product; or

(b)

distributed or supplied, together with a product that is not a regulated product, at a single price.

(4)

A person who, without reasonable excuse, contravenes subsection (1) or (2) commits an offence and is liable,—

(a)

in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $10,000; and

(b)

in any other case, to a fine not exceeding $5,000.

Subpart 4—Inducements and rewards involving regulated products prohibited

34 Rewards involving regulated product prohibited

(1)

A person must not offer any gift or cash rebate, or the right to participate in any contest, lottery, or game, to—

(a)

the purchaser of a regulated product in consideration for the purchase of that product; or

(b)

any person in consideration for the provision of evidence of the purchase of a regulated product.

(2)

A person must not offer to any retailer any gift or cash rebate, or the right to participate in any contest, lottery, or game, as an inducement or reward in relation to—

(a)

the purchase or sale of regulated products by that retailer; or

(b)

the advertising of regulated products inside that retailer’s place of business; or

(c)

the location of regulated products in a particular part of that retailer’s place of business.

(3)

Subsections (1) and (2) do not apply in respect of any payment or reward to a person who—

(a)

purchases or attempts to purchase a regulated product for the purpose of monitoring compliance with this Part; and

(b)

is authorised—

(i)

by the Director-General for that purpose; or

(ii)

by a person authorised by the Director-General for that purpose.

(4)

Subsection (1) does not apply a specialist vape retailer who offers any gift or cash rebate, or the right to participate in any contest, lottery, or game in the manner described in subsection (1) with respect to vaping products.

(5)

A person who, without reasonable excuse, contravenes subsection (1) or (2) commits an offence and is liable,—

(a)

in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $10,000; or

(b)

in any other case, to a fine not exceeding $5,000.

35 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 32 or 33.

(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 party to the arrangement (or a person who is claiming through or under that party) may seek relief under subpart 5 of Part 2 of the Contract and Commercial Law Act 2017 (which applies with all necessary modifications),—

(a)

regardless of whether the arrangement is a contract:

(b)

as if compliance with the term were performance, in a way that gives rise to illegality, of a provision of a contract.

Subpart 5—Visibility of regulated products

36 Regulated product (other than vaping product) must not be visible from place of business

(1)

A person who offers a regulated product other than a vaping product for sale (whether by retail or wholesale) must not allow any part of the regulated product or package—

(a)

to be visible from outside the person’s place of business; or

(b)

to be visible from an area inside the person’s place of business to which members of the public are allowed access.

(2)

Subsection (1) does not apply to a regulated product or package that is being delivered if—

(a)

the product or package is visible only to the extent that is necessary for it to be delivered—

(i)

to the person at the place; or

(ii)

to its purchaser at or from the place; and

(b)

the form of its delivery complies with any regulations made under section 75(h) that are in force.

(3)

Subsection (1) does not apply to a regulated product or package that is visible in a way that complies with any relevant temporary transitional exemption regulations in force under section 75(i).

(4)

A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable to a fine not exceeding $10,000.

Subpart 6—Information and warnings at point of sale and on Internet

37 Point-of-sale health information or warning signs

(1)

This section applies if regulations made under section 75(j) requiring point-of-sale health information or warnings are in force.

(2)

A person to whom those regulations apply who offers a regulated product for sale (by retail or wholesale) must—

(a)

display a sign for the public that—

(i)

does no more than communicate health information or warnings; and

(ii)

complies with those regulations; and

(b)

display the sign clearly at each point of sale at the outside of or inside the person’s place of business.

(3)

A person who, without reasonable excuse, contravenes subsection (2) commits an offence and is liable to a fine not exceeding $2,000.

38 Internet-sales health information or warnings

(1)

This section applies if regulations made under section 75(k) are in force requiring sales health information or warnings to be visible on a person’s Internet site when people access it.

(2)

A person to whom those regulations apply who offers a regulated product for Internet sale (by retail or wholesale) must comply with those regulations.

(3)

A person who, without reasonable excuse, contravenes subsection (2) commits an offence and is liable to a fine not exceeding $2,000.

Subpart 7—Sale of regulated products and toy regulated products to people under 18 years

39 Sale and delivery of regulated product to people younger than 18 years prohibited

(1)

A person—

(a)

must not sell a regulated product to a person younger than 18 years; or

(b)

having sold a regulated product to a person of any age, must not deliver it, or arrange for it to be delivered, to a person younger than 18 years.

(2)

A person who contravenes subsection (1)(a) or (b) commits an offence and is liable,—

(a)

in the case of a body corporate, to a fine not exceeding $10,000; and

(b)

in any other case, to a fine not exceeding $5,000.

(3)

It is a defence to a charge under subsection (2) if the person charged proves that—

(a)

the contravention occurred without the person’s knowledge; and

(b)

the person took reasonable precautions and exercised due diligence to prevent the contravention.

(4)

A person charged with contravening subsection (1)(a) satisfies the requirements of subsection (3)(a) and (b) if the person proves that they have sighted an evidence of age document of the person to whom the product was sold that indicated that the person was of or over the age of 18 years.

(5)

Subsection (4) does not affect the generality of subsection (3).

(6)

It is not a defence to a charge under subsection (2)

(a)

that the person to whom the product was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years; or

(b)

that the person charged believed on reasonable grounds that the person to whom the product was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years.

(7)

Anything done by a person (A) as the employee of another person (B) is, for the purposes of an offence against subsection (2), to be treated as done by B as well as by A, whether or not it was done with B’s knowledge or approval.

(8)

Anything done by a person (A) as the agent of another person (B) is, for the purposes of an offence against subsection (2), to be treated as done by B as well as by A, unless it is done without B’s express or implied authority, precedent or subsequent.

40 Supplying regulated product to people younger than 18 years prohibited

(1)

A person must not, in a public place,—

(a)

supply a regulated product to a person younger than 18 years; or

(b)

supply a regulated product to a person with the intention that it be supplied (directly or indirectly) to a person younger than 18 years.

(2)

A person who contravenes subsection (1) commits an offence and is liable to a fine not exceeding $2,000.

(3)

It is a defence to a charge under subsection (2) if the person charged proves that—

(a)

the contravention occurred without the person’s knowledge; and

(b)

the person took reasonable precautions and exercised due diligence to prevent the contravention.

(4)

A person charged with contravening subsection (1)(a) satisfies the requirements of subsection (3)(a) and (b) if the person proves that they have sighted an evidence of age document of the person to whom the product was supplied that indicated that the person was of or over the age of 18 years.

(5)

It is not a defence to a charge under subsection (2)

(a)

that the person younger than 18 years was acquiring the product for or on behalf of, or as agent for, a person of or over the age of 18 years; or

(b)

that the person charged believed on reasonable grounds that the person younger than 18 years was acquiring the product for or on behalf of, or as agent for, a person of or over the age of 18 years.

(6)

Subsection (1) applies irrespective of any liability that may attach to a person who has sold the product to any other person.

(7)

In this section, public place has the meaning given to it in section 2(1) of the Summary Offences Act 1981.

41 Sale of toy regulated products to people younger than 18 years prohibited

(1)

A person must not sell a toy regulated product to a person younger than 18 years.

(2)

A person who contravenes subsection (1) commits an offence, and is liable to a fine not exceeding $2,000.

(3)

It is a defence to a charge under subsection (2) if the person charged proves that—

(a)

the contravention occurred without the person’s knowledge; and

(b)

the person took reasonable precautions and exercised due diligence to prevent the contravention.

(4)

The person charged satisfies the requirements of subsection (3)(a) and (b) if the person proves that they have sighted an evidence of age document of the person to whom the product was sold that indicated that the person was of or over the age of 18 years.

(5)

Subsection (4) does not affect the generality of subsection (3).

(6)

It is not a defence to a charge under subsection (2) that—

(a)

the person to whom the product was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years; or

(b)

the person charged believed on reasonable grounds that the person to whom the product was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years.

42 Point-of-sale purchase age information

(1)

This section applies if regulations made under section 75(l) requiring point-of-sale purchase age information or warnings are in force.

(2)

A person to whom those regulations apply who offers a regulated product for sale by retail must 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 regulated products to people who are younger than 18 years is prohibited; and

(b)

complies with any requirements of those regulations.

(3)

A person who, without reasonable excuse, contravenes subsection (2) commits an offence and is liable to a fine not exceeding $2,000.

43 Internet-sales purchase age information or warnings

(1)

This section applies if regulations made under section 75(g) are in force requiring purchase age information or warnings to be visible on a person’s Internet site when people access it.

(2)

A person to whom those regulations apply who offers regulated products for sale must comply with those regulations.

(3)

The health warning information or warnings that are required to be visible must—

(a)

do no more than communicate information or warnings to the effect that the sale of regulated products to people who are younger than 18 years is prohibited; and

(b)

comply with the applicable requirements of those regulations.

(4)

A person who, without reasonable excuse, contravenes subsection (2) commits an offence and is liable to a fine not exceeding $2,000.

44 Court may order certain repeat offenders not to sell regulated product

(1)

In this section, a repeat offence means an offence against section 39(2) that a person has committed within 2 years of being convicted of—

(a)

another offence against section 39(2); or

(b)

an offence against section 30(1) of this Act before it was amended by the Smokefree Environments and Regulated Products (Vaping) Amendment Act 2020.

(2)

When sentencing a person for a repeat offence or an offence against subsection (4), the court may (in addition to any sentence it might impose and any other order in the nature of a penalty it might make) make an order—

(a)

prohibiting either or both of the following:

(i)

the sale of regulated products by or on behalf of the person:

(ii)

the sale of regulated products at a shop at which the offence occurred; or

(b)

prohibiting either or both of the following:

(i)

the sale of regulated products of a stated kind by or on behalf of the person:

(ii)

the sale of regulated products of a stated kind in the place in which the offence occurred; or

(c)

imposing any conditions or restrictions (or both) that it thinks fit on either or both of the following:

(i)

the sale of regulated products by or on behalf of the person:

(ii)

the sale of regulated products at a shop at which the offence occurred.

(3)

The order must state—

(a)

the date on which it takes effect (which may be the date on which it is made or a later date); and

(b)

the date on which it expires (which must be a date at least 4 weeks and no more than 3 months after the date on which it takes effect).

(4)

A person who fails to comply with an order under subsection (2) commits an offence and is liable,—

(a)

in the case of a body corporate, to a fine not exceeding $10,000; and

(b)

in any other case, to a fine not exceeding $5,000.

Subpart 8—Sale of regulated products by way of automatic vending machines

45 Regulated products must not be visible from outside automatic vending machines

(1)

A person who offers a regulated product for sale by way of an automatic vending machine must not allow any part of a regulated product or package to be visible from outside the machine.

(2)

However, subsection (1) does not apply to a regulated product or package that is being delivered if—

(a)

the product or package is visible only to the extent that is necessary for it to be delivered to or from the machine; and

(b)

the form of its delivery complies with regulations made under section 75(h) that are in force.

(3)

A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable to a fine not exceeding $10,000.

(4)

Subsection (1) does not apply to a regulated product or package that is visible in a way that complies with any relevant temporary transitional exemption regulations in force under section 75(i).

46 Automatic vending machines must not be located where public have access

(1)

A person must not—

(a)

permit an automatic vending machine that dispenses or is capable of dispensing regulated products to be located in a place to which members of the public have access; or

(b)

permit a regulated product to be sold by way of an automatic vending machine in a place to which members of the public have access.

(2)

Subsection (1) does not apply to an automatic vending machine if—

(a)

no individual sale can occur unless the machine is activated by the person who would otherwise be in breach of that subsection (or an employee or agent of that person); and

(b)

the device used to activate the machine is permanently located in a place from which any person using it can see the person to whom the sale is to be made.

(3)

For the purposes of this Act, a person who activates an automatic vending machine so that the sale of a regulated product to another person occurs is a party to the sale of that product to the other person.

(4)

A person who, without reasonable excuse, contravenes subsection (1)(a) or (b) commits an offence and is liable to a fine not exceeding $2,000.

47 Automatic vending machines must display health messages required by or under this Act

(1)

A person who sells a regulated product from an automatic vending machine that can be seen from a place to which members of the public have access—

(a)

must display on the machine any health message required by or under this Act (even if the machine is accessible only by the person or their employees or agent); and

(b)

must display the health message in accordance with regulations.

(2)

A person commits an offence if the person—

(a)

offers for sale a regulated product by way of an automatic vending machine; and

(b)

fails, without reasonable excuse, to display on that machine any health message required by or under this Act.

(3)

A person who commits an offence against subsection (2) is liable to a fine not exceeding $5,000.

(4)

Subsection (1) does not authorise or excuse a contravention of section 46.

Part 3 Packaging, labelling, and constituents of regulated products

48 Purposes of this Part

The purposes of this Part are—

(a)

to reduce the social approval of smoking, particularly among children and young people:

(b)

to reduce the appeal of vaping and the use of heated tobacco products for non-smokers, particularly children and young people:

(c)

to require the standardised appearance of regulated products and their packages (including messages and information) in order to—

(i)

reduce the appeal of smoking, particularly for young people; and

(ii)

further reduce any social and cultural acceptance and approval of smoking; and

(iii)

reduce the appeal of vaping and use of heated tobacco products for non-smokers, particularly for children and young people; and

(iv)

make warning messages and images more noticeable and effective; and

(v)

reduce the likelihood of consumers acquiring false perceptions about the harmful effects of smoked tobacco products, vaping products, and heated tobacco products:

(d)

to discourage non-smokers, particularly children and young people, from vaping and using heated tobacco products:

(e)

to reduce some of the harmful effects of tobacco products on the health of users by monitoring and regulating the presence of harmful substances in the products and in tobacco emissions:

(f)

to facilitate the harmonisation of the laws of New Zealand and Australia relating to the labelling of smoked tobacco products (including, without limitation, requirements relating to the display of health messages).

Subpart 1—Packaging and labelling requirements

49 Standardised packaging of regulated products

(1)

A regulated product—

(a)

must comply with the requirements in regulations that apply to that product; and

(b)

if sold or offered for sale,—

(i)

must be contained in a package; and

(ii)

must be packaged in a quantity that complies with regulations.

(2)

The package for a regulated product—

(a)

must comply with section 51 (which relates to messages and information); and

(b)

other than part of the package that is wrapping or lining, may display the brand or company name for the product, but only in accordance with regulations; and

(c)

must comply with regulations in all other respects.

50 Offence in respect of standardised packaging of regulated products

(1)

This section applies to—

(a)

a person who manufactures, distributes, sells, offers for sale, or otherwise supplies a regulated product knowing that the product contravenes section 49(1); or

(b)

a person who distributes, sells, offers for sale, or otherwise supplies a regulated product in a package knowing that the package contravenes section 49(2); or

(c)

a person who does the following knowing that a package for a regulated product contravenes section 49(2):

(i)

manufactures, distributes, sells, offers for sale, or otherwise supplies the package; or

(ii)

packages, or arranges for the packaging of, a regulated product in the package.

(2)

The person commits an offence and is liable on conviction,—

(a)

in the case of a manufacturer, an importer, or a distributor,—

(i)

to a fine not exceeding $600,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $200,000; and

(b)

in the case of a large retailer,—

(i)

to a fine not exceeding $200,000; but

(ii)

if the contravention relates to a vaping product or a smokeless tobacco product, to a fine not exceeding $70,000; and

(c)

in any other case,—

(i)

to a fine not exceeding $50,000; but

(ii)

if the contravention relates to a vaping product or smokeless tobacco product, to a fine not exceeding $15,000.

(3)

However, the person does not commit an offence against this section in relation to a regulated product or a package if—

(a)

the product or package is intended for export; and

(b)

the product or package has not been sold or supplied at retail, or offered for retail sale, in New Zealand.

51 Messages and information required for regulated product package

(1)

A package must display, in accordance with regulations, as many of the following things as regulations require:

(a)

a message relating to—

(i)

the harmful health, social, cultural, or economic effects, or other harmful effects, of using the regulated product:

(ii)

the beneficial effects of stopping the use of the product or of not using the regulated product:

(b)

if the product is intended for smoking, a list of the harmful constituents, and their respective quantities, present in its emissions:

(c)

whether as part of or in addition to any message about effects, a photograph or picture relating to—

(i)

the harmful health, social, cultural, or economic effects, or other harmful effects, of using the regulated product:

(ii)

the beneficial effects of stopping the use of the product or of not using the regulated product.

(2)

A package must, if required by regulations, contain a leaflet with—

(a)

information (prescribed by regulations for regulated products generally, or regulated products of a class to which the product belongs) relating to—

(i)

the harmful health, social, cultural, or economic effects, or other harmful effects, of using the product:

(ii)

the beneficial effects of stopping the use of the product or of not using the product; and

(b)

if the regulated product is intended for smoking, as much of the following information (stated, as regulations may require, by reference to the class of regulated product to which the product belongs, or to the product’s brand as a regulated product of any class or variant of a brand of a regulated product of any class) as regulations require:

(i)

a list of the harmful constituents, and their respective quantities, present in the product:

(ii)

a list of the additives, and their respective quantities, present in the product:

(iii)

a list of the harmful constituents, and their respective quantities, present in the product’s emissions.

52 Restrictions on sale of certain regulated products in small quantities

(1)

A manufacturer, importer, distributor, or retailer must not sell or offer for sale—

(a)

cigarettes in a package that contains fewer than 20 cigarettes; or

(b)

loose tobacco in a package that contains less than 30 grams of loose tobacco; or

(c)

any other regulated product in a package that contains fewer than the number (if any) prescribed in regulations for that product.

(2)

In this section, unless the context otherwise requires,—

cigarette includes the tobacco product commonly known as a cigarillo

loose tobacco means—

(a)

tobacco prepared for smoking in hand-rolled cigarettes:

(b)

pipe tobacco.

(3)

Nothing in subsection (1)(a) applies in respect of cigars (other than cigarillos).

(4)

A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable to a fine not exceeding $2,000.

53 Regulated product not to be advertised or labelled as suitable for chewing, etc

(1)

A person must not publish a regulated product advertisement that directly or indirectly states or suggests that a regulated product is suitable for chewing or for any other oral use.

(2)

A person must not import for sale, sell, pack, or distribute any regulated product labelled or otherwise described as suitable for chewing, or for any other oral use.

(3)

A person who, without reasonable excuse, contravenes subsection (1) or (2) commits an offence and is liable,—

(a)

in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $10,000; or

(b)

in any other case, to a fine not exceeding $5,000.

(4)

In this section, oral use, in relation to a product, means the absorption of the product primarily through the oral mucosa.

Subpart 2—Constituents of regulated products

54 Limits on harmful constituents of tobacco products and herbal smoking products

(1)

A manufacturer or an importer must not offer for sale or export any tobacco product or herbal smoking product that—

(a)

contains, or generates in its emissions, a harmful constituent prohibited by regulations; or

(b)

contains, or generates in its emissions, harmful constituents in excess of any limits prescribed by regulations, as determined in accordance with any tests so prescribed.

(2)

A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable to a fine not exceeding $10,000.

55 Annual testing for constituents of prescribed regulated products

(1)

This section applies to a regulated product specified in regulations as a product to which this section applies.

(2)

Every manufacturer and every importer of the regulated product must conduct, either or both of the following tests (as regulations require):

(a)

a test for the constituents of each brand of the product sold by the manufacturer or importer, and the respective quantities of those constituents:

(b)

a test for the constituents of any emissions.

(3)

The tests must be conducted each year by 31 December in accordance with any requirements in regulations.

(4)

If regulations require it, each variant of the brand must be tested separately.

56 Director-General may require testing or further testing

(1)

The Director-General may, by written notice, require a manufacturer or an importer of a regulated product to conduct tests of the product.

(2)

Any tests required under this section may be in addition to any tests required under section 55.

(3)

The tests must be conducted—

(a)

in accordance with regulations; and

(b)

in a laboratory nominated by the Director-General; but

(c)

at the expense in all respects of the manufacturer or importer.

(4)

In any year, the Director-General must not require tests to be conducted under this section in respect of more than one of the brands of regulated products to which section 55 applies sold by a particular manufacturer or importer.

(5)

However, subsection (4) does not apply to vaping products.

(6)

A person commits an offence if the person, without reasonable excuse,—

(a)

fails to conduct any tests required under this section; or

(b)

fails to conduct those tests in accordance with regulations.

(7)

A person who commits an offence under subsection (6) is liable,—

(a)

in the case of a body corporate, to a fine not exceeding $10,000; or

(b)

in any other case, to a fine not exceeding $5,000.

Part 4 Regulated products that must be notified

57 Purpose of this Part

The purpose of this Part is to regulate the safety of notifiable products.

58 Defined terms

In this Part, unless the context otherwise requires,—

database means the database established under section 73

notifiable product means a—

(a)

vaping product; or

(b)

smokeless tobacco product

notifier means the manufacturer or importer of a notifiable product

product safety requirements means safety requirements prescribed in regulations for a notifiable product

prohibited flavour means a flavour listed in Part 2 of Schedule 2

prohibited ingredient means a substance declared under section 67.

59 Notifier must not sell product unless it has been notified

(1)

A notifier of a notifiable product must not sell the product in New Zealand unless it—

(a)

has been notified in accordance with this Part; and

(b)

complies with product safety requirements.

(2)

A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable to a fine not exceeding $400,000.

60 Notifier must be New Zealand resident or company registered in New Zealand

A notifier of a notifiable product must be a New Zealand resident or a company registered in New Zealand.

61 Pre-notification requirements

Before notifying a notifiable product that is intended for sale in New Zealand, the notifier must ensure that the product complies with—

(a)

product safety requirements; and

(b)

section 66; and

(c)

any applicable requirements in regulations.

62 How to notify product

(1)

A notifier must notify the notifiable product by entering on the database—

(a)

the notifier’s contact details; and

(b)

a description of the product and its parts (including its ingredients) in accordance with regulations; and

(c)

a declaration by the notifier that the product complies with the requirements referred to in section 61.

(2)

A person who, without reasonable excuse, provides false or misleading information in notifying a notifiable product commits an offence and is liable to a fine not exceeding $50,000.

63 Obligations of retailers

(1)

A retailer must not—

(a)

sell a notifiable product in New Zealand unless it has been notified in accordance with this Part; or

(b)

sell a notifiable product that does not comply with product safety requirements; or

(c)

sell a notifiable product for which notification has been cancelled or suspended.

(2)

A retailer must not, unless subsection (3) applies, sell a vaping product that contains a flavour that is not listed in Part 1 of Schedule 2.

(3)

A specialist vape retailer—

(a)

may sell a vaping product that contains any flavour except a prohibited flavour; but

(b)

if the vaping product contains a flavour that is not listed in Part 1 of Schedule 2, must sell the product only from the retailer’s approved vaping premises or the retailer’s Internet site.

(4)

A person who, without reasonable excuse, contravenes subsection (1), (2), or (3) commits an offence and is liable to a fine not exceeding $400,000 in the case of a large retailer, or $50,000 in any other case.

64 Obligation to notify adverse reaction

(1)

A notifier must advise the Director-General as soon as practicable after the notifier becomes aware of any adverse reaction to the notifiable product.

(2)

A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable to a fine not exceeding $400,000.

(3)

In this section, adverse reaction means an unwanted or harmful reaction—

(a)

that is experienced by an individual who has used the product; and

(b)

that is suspected to have been caused (wholly or partly) by the use of the product.

65 When notifiable product must be renotified

(1)

If, after a notifiable product has been notified, the product or any part of the product undergoes a significant change, the notifier must, as soon as practicable,—

(a)

withdraw the product notification for the product; and

(b)

complete a new product notification that accurately reflects the change to the product.

(2)

In this section, significant change means any of the following changes (as applicable):

(a)

a change to the composition or strength of the product’s vaping substance:

(b)

a change to the composition or strength of the product’s tobacco component:

(c)

a change to the product’s atomiser:

(d)

a change to any other part or component of the product that is specified in regulations.

66 Substances that notifiable product must not contain

(1)

A notifiable product must not contain a prohibited ingredient.

(2)

A notifiable product must not contain a prohibited flavour.

(3)

A notifiable product that is a vaping substance, or any part of the product that is vaping substance, must not contain a colouring substance.

67 Declaration of prohibited ingredient

(1)

The Director-General may declare a substance to be a prohibited ingredient if satisfied that the substance is unsafe for use in a notifiable product.

(2)

A declaration must be in writing and published on an Internet site maintained by or on behalf of the Ministry of Health.

68 Director-General may require notifier to provide information about safety of notifiable product

(1)

The Director-General may, by written notice, require a notifier of a notifiable product to provide information relating to the safety of the notifiable product.

(2)

The notifier must provide the information within the period specified in the notice.

(3)

A notifier who knowingly provides false or misleading information in response to the notice commits an offence and is liable to a fine not exceeding $50,000.

(4)

A notifier who fails to comply with subsection (2) commits an offence and is liable to a fine not exceeding $1,000.

69 Director-General may issue warning

(1)

If the Director-General has reasonable grounds to believe that the continued availability of a notifiable product poses a risk of harm to people, the Director-General may issue a public warning to that effect.

(2)

A public warning issued under subsection (1) is protected by qualified privilege.

70 Recall

(1)

If the Director-General is satisfied that the continued availability of a notifiable product poses an unacceptable risk of harm to people, the Director-General may—

(a)

issue a public statement to that effect; and

(b)

by written notice, require the notifier to arrange for the recall of the product.

(2)

The notice may specify when and how the notifier must comply with the notice.

(3)

The notifier must advise the Director-General as soon as practicable when the notice has been complied with.

(4)

A notifier who, without reasonable excuse, fails to comply with the notice commits an offence and is liable to a fine not exceeding $400,000.

(5)

A public statement issued under subsection (1) is protected by qualified privilege.

71 Director-General may suspend product notification

(1)

The Director-General may suspend a product notification of a notifiable product for 1 month if—

(a)

the Director-General has reasonable grounds to believe that the continued availability of a notifiable product poses an unacceptable risk of harm to people; or

(b)

the Director-General has reasonable grounds to believe the notifier has provided false, misleading, or incomplete information in the product notification or in response to a requirement under section 68; or

(c)

the Director-General has reasonable grounds for concern because of new information about the safety of the product; or

(d)

the Director-General has reasonable grounds to believe that the product contains a prohibited ingredient, a prohibited flavour, or a colouring substance.

(2)

The Director-General may extend the period of suspension—

(a)

for a further month:

(b)

more than once.

(3)

The Director-General must tell the notifier in writing of the suspension and give reasons.

(4)

Before the period of suspension ends, the Director-General must—

(a)

decide whether to cancel or reinstate the product notification for the product; and

(b)

tell the notifier in writing of the decision and give reasons.

(5)

A cancellation or reinstatement takes effect immediately after the end of the period of suspension.

(6)

If a product notification of a notifiable product is cancelled, the notifier must comply with section 72(3).

72 Cancellation of product notification

(1)

The Director-General may cancel a product notification of a notifiable product without any prior suspension if—

(a)

the Director-General has reasonable grounds to believe that the continued availability of the product poses an unacceptable risk of harm to people; or

(b)

the Director-General has reasonable grounds to believe the notifier has provided false, misleading, or incomplete information in the product notification or in response to a requirement under section 68; or

(c)

the Director-General has reasonable grounds for concern because of new information about the safety of the product; or

(d)

the Director-General has reasonable grounds to believe that the product contains a prohibited ingredient, a prohibited flavour, or a colouring substance.

(2)

The Director-General must tell the notifier in writing of the cancellation and give reasons.

(3)

If a product notification of a notifiable product is cancelled under this section or section 71, the notifier—

(a)

must ensure that the product is not sold by any person on and from the date on which the cancellation takes effect; and

(b)

must not complete another product notification for the product unless the Director-General is satisfied, on application by the product notifier, that—

(i)

the grounds for cancellation no longer apply; or

(ii)

any concerns of the Director-General leading to the cancellation have been addressed appropriately.

(4)

A person who, without reasonable excuse, contravenes subsection (3)(a) commits an offence and is liable to a fine not exceeding $400,000.

(5)

A person who, without reasonable excuse, contravenes subsection (3)(b) commits an offence and is liable to a fine not exceeding $10,000, in the case of a body corporate, or to a fine not exceeding $5,000, in any other case.

73 Establishment of database and confidentiality of certain information

(1)

The Director-General must establish and maintain a database for the purpose of this Part.

(2)

The database may be in any form that the Director-General thinks fit.

(3)

The Director-General must protect the confidentiality of any information that—

(a)

is entered by a notifier on the database; and

(b)

may reasonably be regarded as confidential or commercially sensitive.

Part 5 Regulations, enforcement, and other matters

74 Outline

(1)

Subpart 1 provides for regulations that may be made for the purposes of this Act.

(2)

Subpart 2 provides for infringement offences.

(3)

Subpart 3 relates to the appointment and powers of enforcement officers.

(4)

Subpart 4 relates to annual returns and reports that must be supplied by a manufacturers and importers of regulated products and specialist vape retailers.

Subpart 1—Regulations

75 Regulations

The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

Forms, registers, and other documents

(a)

prescribing forms, certificates, notices, leaflets, signs, particulars, and notifications, and the persons by whom and the persons to whom any of them must be supplied:

(b)

prescribing records and registers for the purposes of this Act or any of its Parts, including—

(i)

prescribing the manner in which and the period during which any such records and registers must be kept; and

(ii)

prescribing the persons to whom, and the conditions on which, any such records and registers may be available for searching, inspection, and copying:

Health messages on automatic vending machines

(c)

prescribing for the purposes of section 47

(i)

the form, size, and content of messages to be displayed on automatic vending machines that dispense regulated products:

(ii)

the circumstances and manner in which the messages must be displayed:

Exemptions

(d)

prescribing for the purposes of the exemption in section 25(1)(a)(ii) (relating to retailers) requirements with which regulated product and price information under section 25(1)(a) must comply:

(e)

prescribing for the purposes of the exemption in section 25(1)(b)(ii) (relating to retailers) requirements with which a regulated product availability and locations notice under section 25(1)(b) must comply:

(f)

prescribing for the purposes of the exemption in section 25(3)(b) (relating to vending machines) requirements with which a regulated product and price notice under section 25(3) must comply:

(g)

prescribing for the purposes of the exemption in section 25(4)(c) (relating to Internet sales) requirements with which a regulated product and price information under section 25(4) must comply:

Acceptable forms of delivery and visibility

(h)

prescribing for the purposes of section 36(2) acceptable forms of visible delivery in relation to a regulated product or package:

(i)

prescribing for the purposes of section 36(3) ways in which a class or classes of people who offer regulated products for sale may allow a regulated product or package to be visible:

Health information and warnings at point-of-sale and on Internet

(j)

prescribing for the purposes of section 37 requirements relating to point-of-sale health information or warnings:

(k)

requiring sales health information or warnings to be visible on an Internet site of a person who offers regulated products for Internet sale (by retail or wholesale), including—

(i)

prescribing information or warnings that must be made visible; and

(ii)

prescribing the requirements with which the information or warnings must comply:

(l)

prescribing for the purposes of section 42(2)(b) requirements with which a notice for the public (to the effect that the sale of regulated products to people who are younger than 18 years is prohibited) under section 42(2) must comply:

(m)

requiring purchase age information or warnings to be visible on an Internet site of a person who offers regulated products for Internet sale (by retail or wholesale), including—

(i)

prescribing information or warnings that must be made visible; and

(ii)

prescribing the requirements with which the information or warnings must comply:

(n)

prescribing for the purposes of section 81 the infringement fee or infringement fees payable in respect of different kinds of infringement offences:

(o)

prescribing for the purposes of section 83 (and for the purposes of the procedure in section 21 of the Summary Proceedings Act 1957 as modified and applied by section 83) the form of infringement notices and reminder notices for infringement offences, and any other particulars to be contained in infringement notices and reminder notices:

(p)

for the purpose of regulating harmful constituents of tobacco products or herbal smoking products,—

(i)

specifying what those harmful constituents are:

(ii)

prohibiting harmful constituents for the purpose of section 54(1)(a):

(iii)

prescribing limits for harmful constituents in those products or their emissions and a method of determining whether those limits have been exceeded:

(q)

specifying the class or classes of regulated products to which section 55 is to apply:

(r)

prescribing for the purposes of section 93

(i)

sales-related information that manufacturers, importers, and specialist vape retailers must provide in the annual return required under that section:

(ii)

the form and manner in which returns and reports required under that section must be prepared and filed:

(s)

providing for any other related matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

76 Regulations under section 75

(1)

Regulations made under section 75(d), (e), (j), (k), (l), or (m) must come into force no earlier than the day that is 6 months after the date on which they are made.

(2)

Regulations under all or any of paragraphs (d), (e), (f), (j), (k), (l), and (m) of section 75 may (without limitation) prescribe different requirements for all or any of the following:

(a)

different classes of people who offer regulated 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.

(3)

Regulations under section 75(h) may (without limitation)—

(a)

apply to specified classes of regulated products or packages or all regulated products or packages:

(b)

prescribe for different classes of people who offer regulated products for sale different acceptable forms of visible delivery of all or any of regulated products and packages:

(c)

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.

(4)

Regulations under section 75(i) may (without limitation) do either or both of the following:

(a)

prescribe for different classes of people who offer regulated products for sale different ways of allowing a regulated product or package to be visible:

(b)

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

(5)

Regulations under section 75(j) may (without limitation) prescribe requirements relating to all or any of the following matters relating to signs under section 37:

(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, and 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.

(6)

Regulations under section 75(k) 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 38:

(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, and other aspects of the format or layout, or of the clarity and legibility, 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.

Information that must be contained in annual returns

(7)

Regulations made under section 75(r) may (without limitation)—

(a)

require the return to—

(i)

show the quantity of each brand, and of each variant of a brand, of regulated product sold during the previous year; and

(ii)

show the recommended price of each brand, and of each variant of a brand, of regulated product sold during the previous year; and

(iii)

show any other information about the regulated product in respect of the previous year; and

(b)

specify different requirements for different kinds or classes of regulated product.

77 Regulations for standardised packaging (including messages and information)

(1)

The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:

(a)

prescribing for the purposes of section 49(1)(a) requirements, or options permitted, for all or any aspects of the appearance of a regulated product:

(b)

prescribing for the purposes of section 49(1)(b)(ii) the quantity or quantities in which a regulated product must be packaged:

(c)

prescribing for the purposes of section 51(1)

(i)

the form, size, and content of messages and information to be displayed with, on, or in the package for a regulated product:

(ii)

the photographs and pictures to be displayed as part of or in addition to messages about effects relating to a regulated product:

(iii)

the circumstances and manner in which the messages, information, photographs, and pictures must be displayed:

(d)

prescribing for the purposes of section 49(2)(b) requirements, or options permitted, for the display of the brand or company name on the package for a regulated product, including the circumstances and manner in which the name is to be displayed:

(e)

prescribing for the purposes of section 49(2)(c) requirements, or options permitted, for all or any other aspects of the appearance of the package for a regulated product:

(f)

providing for any other related matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.

(2)

Regulations under subsection (1)(a) or (e) may (without limitation) do all or any of the following:

(a)

require a regulated product, or the package for a regulated product, to be a prescribed size and shape:

(b)

prohibit a regulated product, or the package for a regulated product, from displaying any words or other marks unless they are permitted by section 49(2)(b) or the regulations:

(c)

specify types of words or other marks that are permitted to be displayed on a regulated product or the package for a regulated product (for example, bar codes or marks used to record manufacturing information or to detect legitimate products or packages):

(d)

specify requirements for the display of the permitted words or marks, including the circumstances and manner in which the words or marks are to be displayed (for example, the typeface or font, size, colour, and position of the words or marks):

(e)

prohibit any type of feature from forming part of a regulated product or its package (for example, any feature designed to promote the product by changing the appearance of the product or package after retail sale or by making a noise or smell).

(3)

Regulations under subsection (1)(b)

(a)

may, for example, prescribe the number of cigarettes or the weight of loose regulated product that must be contained in a package; but

(b)

must not prescribe a quantity that does not comply with section 49(2).

(4)

Regulations under subsection (1) may (without limitation) prescribe—

(a)

requirements or options for all parts of a product or a package (for example, that all surfaces of a package must be a consistent drab brown colour with a matt finish):

(b)

separate requirements or options for different parts of a product or a package (for example, that any plastic or other wrapping must be consistently transparent, uncoloured, and unmarked):

(c)

separate requirements or options for—

(i)

different classes of regulated product:

(ii)

the packages for different classes of regulated product.

(5)

In this section, appearance includes—

(a)

anything that may affect a person’s senses; and

(b)

any aspect of design, such as shape, size, colour, texture, or material.

Notifiable products

78 Regulations relating to notifiable products

The Governor-General may, by Order in Council, make regulations—

(a)

prescribing safety requirements for regulated products that are notifiable products:

(b)

specifying changes to the parts or components of a notifiable product for the purpose of the definition of significant change in section 65(2):

(c)

amending the list of vaping product flavours in Part 1 or 2 of Schedule 2.

79 Regulations imposing fees

(1)

The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:

(a)

requiring the payment to the Director-General of fees—

(i)

by a notifier in respect of products that must be notified under Part 4; and

(ii)

by a notifier in connection with the performance or exercise by the Director-General of any function, power, or duty under Part 4; and

(iii)

by an applicant in relation to an application for approval as a specialist vape retailer under Part 1; and

(b)

prescribing the amounts of those fees and charges or the manner in which those fees are to be calculated.

(2)

Any Order in Council made under subsection (1) may authorise the Director-General to refund or waive, in whole or in part and on any conditions as may be prescribed, payment of any fee, charge, or cost payable in relation to a notifier or a class of notifier.

(3)

Any fee prescribed under this section is recoverable in any court of competent jurisdiction as a debt due to the Crown.

80 Regulations imposing levies

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing for the levies that must be paid by a notifier under Part 4.

(2)

Levies may be prescribed on the basis of—

(a)

the costs of the Director-General in performing or exercising the Director-General’s functions, powers, and duties under Part 4, where the size of the portion to be met by levies under that Part is determined by the Minister; and

(b)

the costs of collecting the levy money.

(3)

Levies may be prescribed on the basis that any actual cost that could have been, but has not been, recovered as a levy shortfall for a year may be recovered (along with any financing charge) over any period of up to 5 years.

(4)

The regulations may—

(a)

specify the class or classes of notifiers that are required to pay a levy:

(b)

specify the amount of levies, or method of calculating or ascertaining the amount of levies:

(c)

include in levies, or provide for the inclusion in levies of, any shortfall in recovering the actual costs:

(d)

provide for refunds of any over-recovery of the actual costs:

(e)

provide for the payment and collection of levies:

(f)

provide different levies for different classes of notifiers:

(g)

specify the financial year or part financial year to which a levy applies, and apply that levy to that financial year or part financial year and each subsequent financial year until the levy is revoked or replaced:

(h)

for the first financial year to which a levy applies, include in a levy amount or method the costs relating to establishing the database and performing or exercising the functions, duties, and powers of the Director-General that relate to Part 4:

(i)

require payment of a levy for a financial year or part financial year, irrespective of the fact that the regulations may be made after that financial year has commenced:

(j)

provide for waivers or refunds of the whole or any part of a levy for any case or class of cases.

(5)

If a person is in 2 or more classes of notifiers in respect of which different levies have been prescribed, the person must pay each of those levies (unless the regulations provide otherwise).

(6)

Any levy prescribed under this section is recoverable in any court of competent jurisdiction as a debt due to the Crown.

Subpart 2—Infringement offences

81 Infringement offences

In this subpart,—

infringement fee,—

(a)

in relation to an infringement offence against sections 37(3), 38(3), 40(2), 41(2), 42(3), 43(4), 46(4), and 50(2), means an amount not exceeding $2,000 prescribed in regulations; and

(b)

in relation to an infringement offence against sections 33(4), 39(2), and 53(3) means an amount not less than $5,000 and not exceeding $10,000 prescribed in regulations

infringement offence means an offence against any of sections 33(4), 37(3), 38(3), 39(2), 40(2), 41(2), 42(3), 43(4), 46(4), 50(2), and 53(3).

82 Commission of infringement offences

A person who is alleged to have committed an infringement offence may—

(a)

be proceeded against for the alleged offence by the filing of a charging document under the Criminal Procedure Act 2011; or

(b)

be served with an infringement notice as provided for in section 83.

83 Infringement notices

(1)

An enforcement officer may issue an infringement notice on a person if the officer believes on reasonable grounds that the person is committing or has committed an infringement offence.

(2)

An enforcement officer may deliver the infringement notice (or a copy of it) to the person alleged to have committed the infringement offence—

(a)

by delivering it personally or by post addressed to that person’s last known place of residence or business; and

(b)

regardless of whether the enforcement officer issued the infringement notice.

(3)

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)

An 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.

84 Payment of infringement fees

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

Subpart 3—Enforcement officers

85 Appointment of enforcement officers

(1)

The Director-General must appoint to enforce this Act people who are—

(a)

employees of the Ministry of Health, a local authority under the Local Government Act 2002, or a District Health Board under the New Zealand Public Health and Disability Act 2000; or

(b)

employees or officers of some other person or body; or

(c)

officers designated under section 7A of the Health Act 1956; or

(d)

inspectors appointed under section 163 of the Health and Safety at Work Act 2015.

(2)

A person may be appointed by name, or as the holder for the time being of a particular position.

(3)

The Director-General must not appoint a person under subsection (1)(b) unless satisfied,—

(a)

in the case of a named person, that the person is suitably qualified and trained:

(b)

in the case of the holder for the time being of a particular position, that holders of the position are likely to be suitably qualified and trained.

(4)

Every enforcement officer must have an instrument of appointment identifying the holder as an enforcement officer appointed under this section.

(5)

The Director-General may do any or all of the following:

(a)

appoint people to enforce only some of the provisions of this Act:

(b)

appoint people to exercise only some of the powers given to enforcement officers under this Act (enforcement powers):

(c)

appoint people subject to limitations or restrictions on their exercise of enforcement powers.

(6)

An instrument of appointment must state—

(a)

the provisions of this Act that an enforcement officer is appointed to enforce (whether all or stated provisions); and

(b)

enforcement powers that the enforcement officer is appointed to exercise (whether all enforcement powers or stated powers); and

(c)

all limitations and restrictions on the enforcement officer’s exercise of enforcement powers.

86 Protection of people acting under authority of this Act

No enforcement officer who does an act or omits to do an act when carrying out a duty, performing a function, or exercising a power conferred on that person by or under this Act is under any civil or criminal liability in respect of that act or omission unless the person has acted or omitted to act in bad faith or without reasonable care.

87 Powers of entry and inspection

(1)

This section applies to a place if—

(a)

this Act imposes duties, restrictions, or prohibitions in respect of places of a kind to which it belongs; or

(b)

there is carried out in it, regularly or from time to time, an activity in respect of which this Act imposes duties, restrictions, or prohibitions.

(2)

An enforcement officer may at any reasonable time enter a place if—

(a)

the officer believes on reasonable grounds that it is a place to which this section applies; and

(b)

it is not a dwelling house or other residential accommodation.

(3)

An enforcement officer who enters a place under subsection (2) may do any or all of the following things:

(a)

inspect the place, including any regulated products for sale at the place:

(b)

take photographs, videos, or other recordings with any device brought by the officer:

(c)

take samples of the air in the place with any device that the officer brings for that purpose:

(d)

if the officer believes on reasonable grounds that the place is a place where regulated products are sold from time to time,—

(i)

exercise the powers given by section 88:

(ii)

inspect any advertising or display material relating to regulated products on display in the place, or on the outside of a building containing the place.

(4)

An enforcement officer exercising powers under this section may be accompanied by a constable.

(5)

Subsection (2) does not prevent an enforcement officer from entering a dwelling house or other residential accommodation—

(a)

under authority given by or under an enactment other than this section; or

(b)

with the consent of an occupier.

88 Enforcement officer may require identifying information

(1)

An enforcement officer may at any time require information under subsection (2) if the officer believes on reasonable grounds that within the previous 14 days—

(a)

regulated products have been sold to a person younger than 18 years in and from a place where regulated products are sold; or

(b)

regulated products have, after they are sold, been delivered to a person younger than 18 years in and from the place where they are sold; or

(c)

regulated products have been delivered to a person younger than 18 years after being sold at that place (where the regulated products were sold) or at another place.

(2)

The enforcement officer may—

(a)

require the person that the officer believes on reasonable grounds to have sold, delivered, or arranged for the delivery of the regulated product to, while the person is at the place where the regulated product was sold, give the officer their name and address; and

(b)

require the person who appears to be in charge of that place, or part of that place, to give the officer—

(i)

the name and address of the person described in paragraph (a); or

(ii)

if that information is not within the person’s knowledge, the name or any other identifying information within the person’s knowledge relating to the person described in paragraph (a).

(3)

An enforcement officer who suspects that the person described in subsection (2)(a) is younger than 18 years must not require information under subsection (2)(a)) unless—

(a)

there is no other person in the place who appears to be in charge of the place; or

(b)

there is another person in the place who appears to be in charge of it, but the enforcement officer suspects that person is also younger than 18 years.

(4)

An enforcement officer who suspects that the person in charge of the place is younger than 18 years must not require the person to provide information under subsection (2)(b) in relation to a person who is at the place and appears to be 18 years old or older.

89 Search warrant

(1)

An enforcement officer may apply for a search warrant in respect of any place.

(2)

The enforcement officer must apply in the manner provided in subpart 3 of Part 4 of the Search and Surveillance Act 2012.

(3)

An issuing officer may issue a search warrant in respect of the place if satisfied that there are reasonable grounds—

(a)

to suspect that an offence has been, is being, or will be committed against this Act; and

(b)

to believe that there is evidential material in the place.

(4)

The provisions of Part 4 of the Search and Surveillance Act 2012 (except sections 118 and 119) apply.

(5)

In this section, evidential material and issuing officer have the meanings given by section 3(1) of the Search and Surveillance Act 2012.

90 Purposes for which powers may be used

(1)

The powers given by section 87 must be used only for, and only to the extent necessary for, the following purposes:

(a)

finding out whether this Act is being complied with in and in respect of the place entered:

(b)

finding out the extent to which this Act is not being complied with in or in respect of the place entered:

(c)

exercising the powers given by section 91.

(2)

The powers given by section 88 must be used only for, and only to the extent necessary for, the purpose of obtaining the information referred to in section 88(2).

(3)

This section does not prevent an enforcement officer from using in proceedings for an offence against this Act evidence obtained during the lawful exercise of any of the powers given by sections 87 and 88.

91 Duties of enforcement officers

(1)

When an enforcement exercises any power under section 87 in respect of a place where there is a person in charge, the enforcement officer must—

(a)

identify themselves as an enforcement officer to the person in charge; and

(b)

if asked by the person in charge to do so, produce to the person evidence of identity, their instrument of appointment as an enforcement officer, or both.

(2)

When an enforcement officer exercises any power under section 88 in respect of a person, the enforcement officer must—

(a)

identify themselves as an enforcement officer to the person; and

(b)

if asked by the person to do so, produce to the person evidence of identity, their instrument of appointment as an enforcement officer, or both.

92 Offence to obstruct enforcement officers, intentionally fail to comply with section 87, or give false and misleading information

A person commits an offence, and is liable on conviction to a fine not exceeding $10,000, if the person—

(a)

intentionally obstructs, hinders, or resists an enforcement officer exercising or attempting to exercise powers under section 87 or 88; or

(b)

intentionally fails to comply with a requirement under section 87; or

(c)

when required to give information by or under this Act, gives information that the person knows to be false or misleading.

93 Enforcement

(1)

It is the Director-General’s duty to enforce this Act.

(2)

Every prosecution for an offence against this Act must be commenced by the Director-General or a person authorised by the Director-General.

(3)

Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011, the limitation period in respect of an offence against this Act ends on the date that is 12 months after the date on which the offence was committed.

Subpart 4—Annual returns and reports

94 Annual reporting requirements for manufacturers, importers, and specialist vape retailers

(1)

Each year a person who is a manufacturer of regulated products or an importer of regulated products must, in accordance with regulations,—

(a)

prepare—

(i)

a return showing sales-related information required by regulations in respect of the regulated products manufactured or imported by the person; and

(ii)

a report of the results of all tests (if any) that the person conducted during the previous year for the purposes of section 55 or 56; and

(b)

file the return and the report with the Director-General no later than 31 January.

(2)

Each year a specialist vape retailer must, in accordance with regulations,—

(a)

prepare a return showing sales-related information required by regulations in respect of the regulated products or class of regulated products sold by the retailer; and

(b)

file the return with the Director-General no later than 31 January.

(3)

The Director-General—

(a)

must take all practicable steps to ensure that all returns and reports received under this section are publicly available on an Internet site under the Director-General’s control; and

(b)

may publish or make publicly available in any other way all or any part of any such return or report.

(4)

A person who fails to comply with subsection (1) or (2) commits an offence and is liable,—

(a)

in the case of a body corporate, to a fine not exceeding $10,000; or

(b)

in any other case, to a fine not exceeding $5,000.

27 Schedule amended

(1)

Replace the Schedule heading with:

Schedule 1 Transitional, savings, and related provisions

s 3B

Part 1 Smoke-free Environments (Tobacco Standardised Packaging) Amendment Act 2016

(2)

In the Schedule, clause 1, replace “this schedule” with “this Part”.

(3)

In the Schedule, after clause 4, insert the Part 2 as set out in Schedule 1 of this Act.

28 New Schedule 2 inserted

After the Schedule, insert as Schedule 2 the schedule set out in Schedule 2 of this Act.

Part 2 Amendments to other enactments

29 Enactments amended

Amend the enactments specified in Schedule 3 as set out in that schedule.

Schedule 1 New Part 2 inserted into Schedule

s 27

Part 2 Provisions relating to Smokefree Environments and Regulated Products (Vaping) Amendment Act 2020

5 Interpretation

In this Part, amendment Act means the Smokefree Environments and Regulated Products (Vaping) Amendment Act 2020.

6 Continued application of sections 23A and 36(1A)

Sections 23A and 36(1A) of this Act (as they were immediately before the commencement of the amendment Act) continue to apply in respect of tobacco products, tobacco packages, and tobacco cartons until the date section 36 of this Act comes into force.

Schedule 2 New Schedule 2 inserted

s 28

Schedule 2 Vaping product flavours

ss 63, 66, 78

Part 1 Flavours that may be contained in vaping products sold by any retailer

Tobacco

Menthol

Mint

Part 2 Prohibited flavours for all vaping products

Schedule 3 Enactments amended

s 29

Part 1Amendments to Acts

Civil Aviation Act 1990 (1990 No 98)

In the heading to section 65N, after smoking, insert or vaping.

In section 65N(1), after “smokes”, insert “or vapes”.

In section 65N(1)(a), after “smoke”, insert “or vape”.

Replace section 65N(3) with:

(3)

In subsection (1), to smoke and to vape have the meanings set out in section 96A(1).

In the heading to section 96A, after smoking, insert or vaping.

In section 96A(1), after the definition of to smoke, insert:

to vape means to inhale using a vaping device or a heated tobacco product, and vaping has a corresponding meaning

In section 96A(4)(a) and (b), replace “smoking” with “smoking or vaping”.

In section 96A(5) and (6), replace “smoke” with “smoke or vape”.

Corrections Act 2004 (2004 No 50)

In section 3(1), definition of unauthorised item, after paragraph (bb), insert:

(bc)

any vaping product or smokeless tobacco product within the meaning of section 2 of the Smokefree Environments and Regulated Products Act 1990:

In the heading to section 129, replace and smoking with smoking, and vaping.

In section 129(aa), after “substance”, insert “, or vapes within the meaning of section 2 of the Smokefree Environments and Regulated Products Act 1990,”.

Designs Act 1953 (1953 No 65)

In section 51(2), replace “Smoke-free Environments Act 1990” with “Smokefree Environments and Regulated Products Act 1990”.

Psychoactive Substances Act 2013 (2013 No 53)

In section 9(3)(h), replace “Smoke-free Environments Act 1990” with “Smokefree Environments and Regulated Products Act 1990”.

After section 9(3)(h), insert:

(ha)

any regulated product (other than a tobacco product) within the meaning of section 2(1) of the Smokefree Environments and Regulated Products Act 1990, unless the regulated product contains a psychoactive substance as defined in subsection (1) or (2):

Search and Surveillance Act 2012 (2012 No 24)

In the Schedule, replace the item relating to the Smoke-free Environments Act 1990 with:

ActSectionBrief description of powerWhich provisions in Part 4 apply
Smokefree Environments and Regulated Products Act 1990s 89Enforcement officer may obtain and execute search warrant to search for evidential material in relation to suspected offence against Smokefree Environments and Regulated Products Act 1990 All (except sections 118 and 119)
Trade Marks Act 2002 (2002 No 49)

In section 17(3), replace “Smoke-free Environments Act 1990” with “Smokefree Environments and Regulated Products Act 1990”.

Part 2Amendments to legislative instruments

Civil Aviation (Offences) Regulations 2006 (SR 2006/168)

In Schedule 4, under the heading Request, item 13, after “smoked”, insert “or vaped”.

Gambling (Prohibited Property) Regulations 2005 (SR 2005/299)

Replace regulation 4(c) with:

(c)

a regulated product as defined in the Smokefree Environments and Regulated Products Act 1990: