Public Health (Standardised Packaging of Tobacco) Act 2015
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Number 4 of 2015 | ||
PUBLIC HEALTH (STANDARDISED PACKAGING OF TOBACCO) ACT 2015 | ||
CONTENTS | ||
Preliminary and General | ||
Section | ||
Retail Packaging and Presentation of Tobacco Products | ||
Offences, Proceedings and Penalties | ||
Miscellaneous | ||
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Acts Referred to | ||
Finance Act 2005 (No. 5) | ||
Public Health (Tobacco) Act 2002 (No. 6) | ||
Public Health (Tobacco) Acts 2002 to 2013 | ||
Trade Marks Act 1996 (No. 6) | ||
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Number 4 of 2015 | ||
PUBLIC HEALTH (STANDARDISED PACKAGING OF TOBACCO) ACT 2015 | ||
An Act to provide for standardised packaging of tobacco and tobacco products; to give effect in part to Directive No. 2014/40/EU of the European Parliament and of the Council of 3 April 2014 1 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC; and to provide for related matters. | ||
[10 th March, 2015] | ||
Be it enacted by the Oireachtas as follows: | ||
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PART 1 Preliminary and General | ||
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Short title, collective citation and commencement | ||
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1. (1) This Act may be cited as the Public Health (Standardised Packaging of Tobacco) Act 2015. | ||
(2) The Public Health (Tobacco) Acts 2002 to 2013 and this Act may be cited as the Public Health (Tobacco) Acts 2002 to 2015. | ||
(3) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions. | ||
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Interpretation | ||
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2. (1) In this Act— | ||
“Act of 2002” means Public Health (Tobacco) Act 2002 ; | ||
“affixed item” means anything affixed or otherwise attached to the retail packaging of a tobacco product other than a tax stamp or the lining of a unit packet of a tobacco product; | ||
“cigarette packet” means a unit packet of cigarettes; | ||
“Directive” means the Directive No. 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC; | ||
“filter tip”, in relation to a cigarette, means the part of the end of the cigarette that acts as a filter or purports to act as a filter; | ||
“inserted item” means any item placed inside the retail packaging of a tobacco product, other than a tobacco product or the lining of a unit packet of a tobacco product; | ||
“mark” includes any line, letter, number, symbol, graphic or image, other than a trademark; | ||
“Minister” means the Minister for Health; | ||
“prescribed” means prescribed by regulations made by the Minister under section 3 ; | ||
“retail packaging”, in relation to a tobacco product, means the outside packaging of the tobacco product, any lining contained therein and any wrapper that covers such outside packaging; | ||
“sell”, in relation to tobacco products, means sell by wholesale or retail and includes— | ||
(a) offer or expose for sale, | ||
(b) invite the making by a person of an offer to purchase, | ||
(c) distribute free of charge, and | ||
(d) supply for any of these purposes (whether or not for profit); | ||
“tax stamp” has the same meaning as it has in Chapter 3 of Part 2 of the Finance Act 2005 ; | ||
“tobacco product” means a product— | ||
(a) that can be consumed and consists, even partly, of tobacco, whether genetically modified or not and includes a cigarette paper, tube or filter manufactured for use in the smoking of tobacco, and | ||
(b) that is intended for sale by retail in the State; | ||
“trade mark” has the same meaning as it has in the Trade Marks Act 1996 ; | ||
“variant name”, in relation to a tobacco product, means the name used to distinguish that tobacco product from other tobacco products of the same brand name. | ||
(2) (a) A reference to the outer surface of outside packaging is a reference to the entire outer surface of that packaging, including, where the outside packaging is a cigarette packet, the outer surface of a flip-top lid. | ||
(b) Where outside packaging has a flap with a surface that is visible only when the packaging is opened, that surface is an inner surface of the packaging. | ||
(3) Subject to subsection (1), a word or expression that is used in this Act and is also used in the Directive has, unless the context otherwise requires, the same meaning in this Act as it has in the Directive. | ||
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Orders and regulations | ||
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3. (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed or for the purposes of enabling any provision of this Act to have full effect. | ||
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations. | ||
(3) Every order (other than an order under section 1 (3)) or regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. | ||
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Expenses | ||
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4. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of monies provided by the Oireachtas. | ||
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Restriction of Act | ||
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5. (1) Nothing in this Act shall operate to— | ||
(a) prohibit the registration of a trade mark under the Trade Marks Act 1996 , or | ||
(b) be grounds for the revocation of the registration of a trade mark under that Act. | ||
(2) Nothing in this Act shall operate to affect the law in relation to tax stamps. | ||
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Transitional provisions | ||
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6. (1) This Act shall not apply to the sale, before 20 May 2017, of tobacco products manufactured or released for circulation before 20 May 2016, provided that on the date of their sale those tobacco products comply with the European Communities (Manufacture, Presentation and Sale of Tobacco Products) Regulations 2003 ( S.I. No. 425 of 2003 ) and the Public Health (Tobacco) (General and Combined Warnings) Regulations 2011 ( S.I. No. 656 of 2011 ). | ||
(2) For the purposes of this section, the Regulations referred to in subsection (1) shall continue to apply until 20 May 2017 notwithstanding any revocation of those Regulations by any subsequent enactment. | ||
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PART 2 Retail Packaging and Presentation of Tobacco Products | ||
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Retail packaging of cigarettes | ||
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7. (1) Subject to subsection (2) , a cigarette packet shall— | ||
(a) in respect of the outer surface thereof, be of a prescribed colour with a matt finish; | ||
(b) in respect of the inner surface thereof, be of a prescribed colour; | ||
(c) not bear a mark or trade mark other than in accordance with subsections (3) and (4); | ||
(d) not have any decorative ridges, embossing or other embellishments on the outer surface thereof; | ||
(e) not contain an adhesive that is coloured or non-transparent; | ||
(f) not contain any inserted items or affixed items other than as provided for by law. | ||
(2) Paragraphs (a) and (c) of subsection (1) shall not apply to the following: | ||
(a) health warnings; | ||
(b) a bar-code or other similar identification mark that is in accordance with regulations under subsection (5); | ||
(c) such other items as are provided for by law. | ||
(3) Subject to subsection (4) , the following may be printedon a cigarette packet: | ||
(a) a brand name or business name or company name, and | ||
(b) a variant name for the cigarettes concerned. | ||
(4) A name referred to in subsection (3) shall be printed in accordance with regulations under subsection (10) and may be printed— | ||
(a) once on the front outer surface of the cigarette packet, | ||
(b) once on the top outer surface of the cigarette packet, and | ||
(c) once on the bottom outer surface of the cigarette packet, | ||
provided that the name does not obscure or interfere with health warnings on the cigarette packet. | ||
(5) A bar-code or other similar identification mark may be printed once on a cigarette packet in such form and manner as may be prescribed by the Minister, including the colour, dimensions, specifications and positioning of such bar-code or mark, provided that the bar-code or mark does not convey any information to the consumer (including any information conveyed by means of electronic communication). | ||
(6) A cigarette packet shall— | ||
(a) be cuboid in shape, the edges of which may be rounded or bevelled; | ||
(b) be made of carton or soft material; | ||
(c) not contain an opening that can be re-closed or re-opened after it is first opened other than— | ||
(i) a flip-top lid provided the lid is hinged at the back of the packet, or | ||
(ii) a shoulder-box hinged-lid. | ||
(7) Subsections (1) to (5) shall apply with all necessary modifications to any other form of outside packaging of cigarettes. | ||
(8) A wrapper that covers a cigarette packet or any other form of outside packaging of cigarettes shall— | ||
(a) be transparent; | ||
(b) not be coloured; | ||
(c) not have any decorative ridges, embossing or other embellishments; | ||
(d) not bear a trade mark or mark other than a tear-strip that is in accordance with regulations under subsection (9); | ||
(e) not have any affixed item, other than as provided for by law. | ||
(9) The Minister may prescribe the manner in which a tear-strip may be printed on a wrapper under subsection (8)(d), including the colour, dimensions, specifications, and positioning of a tear-strip on the wrapper. | ||
(10) The Minister may prescribe the manner in which a name referred to in subsection (3) may be printed on a cigarette packet or any other form of outside packaging of cigarettes, including the colour, font type, font size, positioning and appearance of such a name. | ||
(11) In prescribing matters referred to in subsection (1)(a) or (b) or subsection (10), the Minister shall have regard to— | ||
(a) the need to decrease the appeal of cigarettes, | ||
(b) the need to increase the effectiveness of health warnings on retail packaging of cigarettes, and | ||
(c) the need to reduce the ability of retail packaging of cigarettes to mislead consumers about the harmful effects of smoking. | ||
(12) This section applies to the retail packaging of cigarettes that are intended for sale by retail in the State. | ||
(13) Subsection (6) applies to the retail packaging of cigarettes that are intended to be placed on the market. | ||
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Appearance of cigarettes | ||
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8. (1) Subject to subsection (2), a cigarette shall comply with the following requirements: | ||
(a) the paper covering the cigarette shall, subject to paragraph (b)(ii), be white in colour; | ||
(b) where the cigarette has a filter tip— | ||
(i) the filter tip shall be white in colour, and | ||
(ii) the part of the cigarette paper that covers the filter tip may be white in colour or have an imitation cork tip. | ||
(2) The following may be printed, in accordance with regulations under subsection (3), on a cigarette: | ||
(a) a brand name or business name or company name; and | ||
(b) a variant name for the cigarettes concerned. | ||
(3) The Minister may prescribe the form and manner in which a name referred to in subsection (2) may be printed on a cigarette, including the colour, font type, font size, positioning and appearance of such a name, and in doing so the Minister shall have regard to— | ||
(a) the need to ensure that an erroneous impression is not created in relation to the characteristics, health effects, hazards or emissions of cigarettes, and | ||
(b) the need to reduce the ability of cigarettes to mislead consumers in relation to the harmful effects of smoking. | ||
(4) In this section, “an imitation cork tip”, in relation to a cigarette, means the part of the paper covering the filter tip of the cigarette that is printed so as to resemble cork. | ||
(5) It shall be an offence for a person to manufacture, import or sell cigarettes that do not comply with the requirements of this section. | ||
(6) This section applies to cigarettes that are intended for sale by retail in the State. | ||
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Retail packaging of roll-your-own tobacco | ||
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9. (1) Subject to subsection (2), a unit packet of roll-your-own tobacco shall— | ||
(a) in respect of the outer surface thereof, be of a prescribed colour with a matt finish; | ||
(b) in respect of the inner surface thereof, be of a prescribed colour; | ||
(c) not bear a mark or trade mark other than in accordance with subsections (3) and (4); | ||
(d) not bear any decorative ridges, embossing or other embellishments; | ||
(e) not contain an adhesive that is coloured or non-transparent; | ||
(f) not contain any inserted item or affixed item other than as provided for by law. | ||
(2) Paragraphs (a) and (c) of subsection (1) shall not apply to the following: | ||
(a) health warnings; | ||
(b) a bar-code or other similar identification mark that is in accordance with regulations under subsection (5); | ||
(c) such other items as are provided for by law. | ||
(3) Subject to subsection (4), the following may be printed on a unit packet of roll-your-own tobacco: | ||
(a) a brand name or business name or company name, and | ||
(b) a variant name for the roll-your-own tobacco concerned. | ||
(4) A name referred to in subsection (3) shall be printed in accordance with regulations under subsection (10) and may be printed— | ||
(a) where the packet is cuboid in shape— | ||
(i) once on the front outer surface of the packet, | ||
(ii) once on the top outer surface of a cuboid packet, and | ||
(iii) once on the bottom outer surface of a cuboid packet, or | ||
(b) where the packet is other than cuboid in shape, twice on the outer surface of the packet but not more than once on any one surface, | ||
provided that the name does not obscure or interfere with health warnings on the packet. | ||
(5) A bar-code or other similar identification mark may be printed once on a unit packet of roll-your-own tobacco in such form and manner as may be prescribed by the Minister, including the colour, dimensions, specifications and positioning of the bar-code, provided that the bar-code or mark does not convey any information to the consumer (including any information conveyed by means of electronic communication). | ||
(6) A unit packet of roll-your-own tobacco shall— | ||
(a) be cuboid in shape, the edges of which may be rounded or bevelled, | ||
(b) be cylindrical in shape, or | ||
(c) have the form of a pouch. | ||
(7) Subsections (1) to (5) shall apply with all necessary modifications to any other form of outside packaging of roll-your-own tobacco. | ||
(8) A wrapper that covers a unit packet or any other form of outside packaging of roll-your-own tobacco shall— | ||
(a) be transparent; | ||
(b) not be coloured; | ||
(c) not have any decorative ridges, embossing or other embellishments; | ||
(d) not bear a mark or trade mark other than a tear-strip that is in accordance with regulations under subsection (9); | ||
(e) not have any affixed item, other than as provided for by law. | ||
(9) The Minister may prescribe the manner in which a tear-strip may be printed on a wrapper under subsection (8)(d), including the colour, dimensions, specifications, and positioning of a tear-strip on the wrapper. | ||
(10) The Minister may prescribe the manner in which a name referred to in subsection (3) may be printed on a unit packet of roll-your-own tobacco, including the colour, font type, font size, positioning and appearance of such a name. | ||
(11) In prescribing matters referred to in subsection (1)(a) or (b) or subsection (10), the Minister shall have regard to— | ||
(a) the need to decrease the appeal of roll-your-own tobacco, | ||
(b) the need to increase the effectiveness of health warnings on retail packaging of roll-your-own tobacco, and | ||
(c) the need to reduce the ability of retail packaging of tobacco products to mislead consumers in relation to the harmful effects of smoking. | ||
(12) This section applies to the retail packaging of roll-your-own tobacco that is intended for sale by retail in the State. | ||
(13) Subsection (6) applies to the retail packaging of roll-your-own tobacco that is intended to be placed on the market. | ||
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Retail packaging of other tobacco products | ||
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10. (1) Subject to subsection (2), a unit packet of tobacco products other than cigarettes and roll-your-own tobacco shall— | ||
(a) in respect of the outer surface thereof, be of a prescribed colour with a matt finish; | ||
(b) in respect of the inner surface thereof, be of a prescribed colour; | ||
(c) not bear a mark or trade mark other than in accordance with subsections (3) and (4); | ||
(d) not bear any decorative ridges, embossing or other embellishments; | ||
(e) not contain an adhesive that is coloured or non-transparent; | ||
(f) not contain any inserted items or affixed items other than as provided for by law. | ||
(2) Paragraphs (a) and (c) of subsection (1) shall not apply to the following: | ||
(a) health warnings; | ||
(b) a bar-code or other similar identification mark that is in accordance with regulations under subsection (5); | ||
(c) such other items as are provided for by law. | ||
(3) Subject to subsection (4), the following may be printed on a unit packet of tobacco products other than cigarettes and roll-your-own tobacco: | ||
(a) a brand name or business name or company name, and | ||
(b) a variant name for the tobacco product concerned. | ||
(4) A name referred to in subsection (3) shall be printed in accordance with regulations under subsection (9) and may be printed— | ||
(a) where the packet is cuboid in shape— | ||
(i) once on the front outer surface of the packet, | ||
(ii) once on the top outer surface of a cuboid packet, and | ||
(iii) once on the bottom outer surface of a cuboid packet, | ||
or | ||
(b) where the packet is other than cuboid in shape, twice on the outer surface of the packet but not more than once on any one surface, | ||
provided that the name does not obscure or interfere with health warnings on the packet. | ||
(5) A bar-code or similar identification mark may be printed once on a unit packet of tobacco products other than cigarettes or roll-your-own tobacco in such form and manner as may be prescribed by the Minister, including the colour, dimensions, specifications and positioning of the bar-code, provided that the bar-code or mark does not convey any information to the consumer (including any information conveyed by means of electronic communication). | ||
(6) Subsections (1) to (5) shall apply with all necessary modifications to any other form of outside packaging of tobacco products other than cigarettes and roll-your-own tobacco. | ||
(7) A wrapper that covers a unit packet or any other form of outside packaging of tobacco products other than cigarettes and roll-your-own tobacco shall— | ||
(a) be transparent; | ||
(b) not be coloured; | ||
(c) not have any decorative ridges, embossing or other embellishments; | ||
(d) not bear a mark or trade mark other than a tear-strip that is in accordance with regulations under subsection (8); | ||
(e) not have any affixed item, other than as prescribed by law. | ||
(8) The Minister may prescribe the manner in which a tear-strip may be printed on a wrapper under subsection (7)(d), including the colour, dimensions, specifications, and positioning of a tear-strip on the wrapper. | ||
(9) The Minister may prescribe the manner in which a name under subsection (3) may be printed on a unit packet or any other form of outside packaging of tobacco products other than cigarettes and roll-your-own tobacco, including the colour, font type, font size, positioning and appearance of such a name. | ||
(10) In prescribing matters referred to in subsection (1)(a) or (b) or subsection (9), the Minister shall have regard to— | ||
(a) the need to decrease the appeal of tobacco products other than cigarettes and roll-your-own tobacco, | ||
(b) the need to increase the effectiveness of health warnings on retail packaging of tobacco products other than cigarettes and roll-your-own tobacco, | ||
(c) the need to reduce the ability of retail packaging of tobacco products other than cigarettes and roll-your-own tobacco to mislead consumers in relation to the harmful effects of smoking. | ||
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Linings of tobacco products | ||
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11. Where a unit packet of cigarettes, roll-your-own tobacco or any other tobacco product contains a lining, the lining shall be of such colour and material as may be prescribed. | ||
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Tar, nicotine and carbon monoxide yields | ||
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12. (1) The tar, nicotine and carbon monoxide content of a tobacco product shall not be printed on a unit packet or any other form of retail packaging of a tobacco product. | ||
(2) In this section “tobacco product” includes a tobacco product intended to be placed on the market. | ||
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Presentation of tobacco products | ||
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13. (1) A tobacco product, any retail packaging of a tobacco product, including any brand name, business name or company name printed thereon, or any bar-code or similar identification mark printed on the outside packaging of a tobacco product shall not— | ||
(a) promote a tobacco product or encourage its consumption by containing information or statements that create an erroneous impression in relation to the characteristics, health effects, hazards or emissions of the tobacco product, | ||
(b) contain information or statements that suggest a tobacco product is less harmful than other tobacco products or that it reduces the effect of some of the harmful components of smoke, | ||
(c) contain information or statements that suggest that a tobacco product has a vitalising, energetic, healing, rejuvenating, natural or organic properties, or that it has lifestyle benefits, | ||
(d) make any reference to the taste, smell, flavouring of the tobacco product or other additives contained in the product or the absence thereof, | ||
(e) contain any element or feature that resembles a food or a cosmetic product, | ||
(f) suggest that the tobacco product has improved biodegradability or other environmental advantages. | ||
(2) It shall be an offence for a person to manufacture, import or sell tobacco products in relation to which there is a contravention of this section. | ||
(3) In this section “tobacco product” includes a tobacco product intended to be placed on the market. | ||
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Features of retail packaging of tobacco products | ||
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14. Any retail packaging of a tobacco product or any bar-code or similar identification mark printed on the outside packaging of a tobacco productshall not— | ||
(a) contain any audio effects or scents that have the effect of promoting the tobacco product, or | ||
(b) contain any features designed to alter the retail packaging after sale by retail, including the following: | ||
(i) heat-activated inks; | ||
(ii) inks designed to appear gradually over time; | ||
(iii) inks that appear fluorescent in certain light; | ||
(iv) panels designed to be scratched or rubbed to reveal an image; | ||
(v) removable tabs; | ||
(vi) fold-out panels. | ||
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PART 3 Offences, Proceedings and Penalties | ||
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Offences in relation to retail packaging | ||
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15. (1) It shall be an offence for a person to package tobacco products with retail packaging in relation to which there is a contravention of section 7 , 9 , 10 , 11 , 12 , 13 or 14 . | ||
(2) It shall be an offence for a person to manufacture retail packaging of tobacco products in relation to which there is a contravention of section 7 , 9 , 10 , 11 , 12 , 13 or 14 . | ||
(3) It shall be an offence for a person to import or sell tobacco products the retail packaging of which contravenes section 7 , 9 , 10 , 11 , 12 , 13 or 14 . | ||
(4) In proceedings for an offence under this Act, it shall be a defence for a person against whom such proceedings are brought to show that he or she made all reasonable efforts to ensure compliance with such provisions of this Act as are alleged to have been contravened. | ||
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Penalties | ||
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16. (1) A person who is guilty of an offence under this Act— | ||
(a) shall be liable, on summary conviction— | ||
(i) in the case of a first offence, to a class B fine or to imprisonment for a term not exceeding 6 months, or to both, | ||
(ii) in the case of any subsequent offence, to a class A fine or to imprisonment for a term not exceeding 12 months, or to both, | ||
or | ||
(b) shall be liable, on conviction on indictment, to a fine or to imprisonment for a term not exceeding 8 years, or to both. | ||
(2) Unless it is satisfied that there are special and substantial reasons for not so doing, the court shall, where the person is convicted of an offence, order a person to pay to the prosecution the costs and expenses, measured by the court, incurred by the prosecution in relation to the prosecution of the offence. | ||
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Offences by bodies corporate | ||
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17. (1) Where an offence under this Act is committed by a body corporate and it is proved that the offence was committed with consent or connivance, or was attributable to any wilful neglect of a person who was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person, as well as the body corporate, shall be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence. | ||
(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate. | ||
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Proceedings | ||
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18. Summary proceedings for an offence under this Act may be brought and prosecuted by the Health Service Executive. | ||
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Evidence in proceedings for an offence | ||
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19. (1) In proceedings for an offence under this Act, a tobacco product, or packaging of a tobacco product, that purports to bear the name of the importer of that product, shall, unless the contrary is proved, be evidence that the tobacco product was imported by the person concerned. | ||
(2) In proceedings for an offence under this Act, a tobacco product, or retail packaging of a tobacco product, that purports to bear the name of the manufacturer of that product, shall, unless the contrary is proved, be evidence that— | ||
(a) the tobacco product was manufactured by the person concerned, | ||
(b) the retail packaging of the tobacco product was manufactured by the person concerned, or | ||
(c) that the person concerned packaged the tobacco product with retail packaging, | ||
as the case may be. | ||
(3) In proceedings for an offence under this Act, a tobacco product, or retail packaging of a tobacco product, that bears a trade mark shall, unless the contrary is proved, be evidence that the product or the retail packaging, as the case may be, was manufactured by the person who at the time of the alleged commission of the offence owned that trade mark. | ||
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PART 4 Miscellaneous | ||
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Amendment of section 2 of Act of 2002 | ||
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20. Section 2(1) of the Act of 2002 is amended by inserting the following definition: | ||
“ ‘Act of 2015’ means the Public Health (Standardised Packaging of Tobacco) Act 2015;”. | ||
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Amendment of section 5A of Act of 2002 | ||
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21. Section 5A (inserted by section 3 of the Public Health (Tobacco) (Amendment) Act 2009 ) of the Act of 2002 is amended— | ||
(a) in subsection (1), by inserting “or an offence under the Act of 2015” after “an offence under this Act”, | ||
(b) in subsection (2), by inserting “or an offence under the Act of 2015” after “an offence under this Act”, and | ||
(c) in subsection (3), by inserting “or an offence under the Act of 2015” after “an offence under this Act”. | ||
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Amendment of section 37 of Act of 2002 | ||
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22. Section 37 of the Act of 2002 is amended in subsection (9) by inserting “or under the Act of 2015” after “an offence under this Act”. | ||
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Amendment of section 48 of Act of 2002 | ||
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23. The Act of 2002 is amended by substituting the following section for section 48: | ||
“48. (1) The Health Service Executive shall appoint such one or more persons, as it considers appropriate, to be an authorised officer or authorised officers for the purposes of this Act and the Act of 2015. | ||
(2) A person appointed to be an authorised officer under this section shall, on his or her appointment, be furnished by the Health Service Executive with a warrant of his or her appointment, and when exercising a power conferred by this Act shall, if requested by any person thereby affected, produce such warrant to that person for inspection. | ||
(3) An appointment under this section as an authorised officer shall cease— | ||
(a) if the Health Service Executive revokes the appointment, | ||
(b) if the appointment is for a fixed period, on expiry of that period, or | ||
(c) in the case of a person who is a member of staff of the Health Service Executive, if he or she ceases to be a member of staff. | ||
(4) For the purposes of this Act and the Act of 2015, an authorised officer may— | ||
(a) subject to subsection (6), enter (if necessary by the use of reasonable force), at all reasonable times, any premises at which he or she has reasonable grounds for believing that— | ||
(i) any trade, business or activity connected with the manufacture, processing, disposal, export, import, distribution, sale, storage, packaging, labellin g or retail packaging of a tobacco product is or has been carried on, or | ||
(ii) books, records or other documents (including documents stored in non-legible form) relating to such trade, business or activity are kept, | ||
(b) at all reasonable times enter (if necessary by the use of reasonable force) any specified place, | ||
(c) at such premises inspect and take copies of, any labels, retail packaging of tobacco products, books, records, other documents (including documents stored in non-legible form) or extracts therefrom, which he or she finds in the course of his or her inspection, | ||
(d) remove any such labels, retail packaging, books, records or documents from such premises and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act or the Act of 2015, | ||
(e) carry out, or have carried out, such examinations, tests, inspections and checks of— | ||
(i) the premises, | ||
(ii) any tobacco product, retail packaging of tobacco products or any article or substance used in the manufacture, processing, labelling, retail packaging or storage of tobacco products, at the premises, or | ||
(iii) any equipment, machinery or plant at the premises, as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act or the Act of 2015, | ||
(f) require any person at the premises or the owner or person in charge of the premises and any person employed there to give to him or her such assistance and information and to produce to him or her such labels, retail packaging of tobacco products, tobacco products, books, documents or other records (and in the case of documents or records stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s power or procurement, as he or she may reasonably require for the purposes of his or her functions under this Act or the Act of 2015, | ||
(g) take samples of any tobacco product, retail packaging of tobacco products or any article or substance used in the manufacture, processing, labelling, retail packaging or storage of tobacco products found at the premises for the purposes of analysis and examination, | ||
(h) direct that such tobacco products or retail packaging of tobacco products found at the premises as he or she, upon reasonable grounds, believes contravene a provision of this Act or the Act of 2015 not be sold or distributed or moved from the premises, without his or her consent, | ||
(i) secure for later inspection any premises or part of any premises in which a tobacco product, retail packaging of tobacco products, substance or article used in the manufacture, processing, labelling, retail packaging or storage of tobacco products is found or ordinarily kept, or records, labels, retail packaging of tobacco products, tobacco products books or documents are found or ordinarily kept, for such period as may reasonably be necessary for the purposes of his or her functions under this Act or the Act of 2015, or | ||
(j) take possession of and remove from the premises for examination and analysis any tobacco product, retail packaging of tobacco products or any substance or article used in the manufacture, processing, labelling, retail packaging or storage of tobacco products found there, and detain them for such period as he or she considers reasonably necessary for the purposes of his or her functions under this Act or the Act of 2015. | ||
(5) When performing a function under this Act, an authorised officer may, subject to any warrant under subsection (7), be accompanied by such number of authorised officers, members of the Garda Síochána or officers of the Revenue Commissioners as he or she considers appropriate. | ||
(6) An authorised officer shall not enter a dwelling, other than— | ||
(a) with the consent of the occupier, or | ||
(b) in accordance with a warrant issued undersubsection (7). | ||
(7) Upon the application of an authorised officer, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that— | ||
(a) a tobacco product, retail packaging of tobacco products or any substance or article used in the manufacture, processing, labelling, retail packaging or storage of a tobacco product is to be found in any dwelling or premises, or is being or has been subjected to any process or stored in any dwelling or premises, | ||
(b) labels, books, records or other documents (including documents stored in non-legible form) referred to insubsection (4)(a)(ii) are being stored or kept in any dwelling or premises, or | ||
(c) a dwelling is occupied in whole or in part by an undertaking engaged in any trade, business or activity referred to in subsection (4)(a)(i), | ||
issue a warrant authorising a named authorised officer accompanied by such other authorised officers, members of the Garda Síochána or officers of the Revenue Commissioners as may be necessary, at any time or times, within one month of the date of issue of the warrant, to enter the dwelling or premises (as the case may be) and perform the functions of an authorised officer under paragraphs (c), (d), (e), (f), (g), (h), (i) and (j) of subsection (4). | ||
(8) Any person who obstructs or interferes with an authorised officer, a member of the Garda Síochána or officers of the Revenue Commissioners in the course of exercising a power conferred on him or her by this Act or a warrant under subsection (7) or impedes the exercise by the officer or member, as the case may be, of such power or fails or refuses to comply with a request or requirement of, or to answer a question asked by, the officer or member pursuant to this section, or in purported compliance with such request or requirement or in answer to such question gives information to the officer or member that he or she knows to be false or misleading in any material respect, shall be guilty of an offence. | ||
(9) Where an authorised officer, upon reasonable grounds, believes that a person has committed an offence under this Act or under the Act of 2015, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides and, if the authorised officer thinks it necessary, to produce corroborative evidence of his or her name and address. | ||
(10) Where an authorised officer has— | ||
(a) directed that tobacco products or retail packaging of tobacco products not be sold, distributed or moved, pursuant tosubsection (4)(h), or | ||
(b) taken possession of and removed any tobacco product or retail packaging of tobacco products pursuant to subsection (4)(j), | ||
he or she may apply to the District Court for an order that any such tobacco product or retail packaging be destroyed, and the judge of the District Court may grant such an order if he or she is satisfied that such product or retail packaging contravenes a provision of this Act or the Act of 2015. | ||
(11) A statement or admission made by a person pursuant to a requirement under subsection (4)(f) shall not be admissible as evidence in proceedings brought against that person for an offence (other than an offence under subsection (8)). | ||
(12) A person who falsely represents himself or herself to be an authorised officer shall be guilty of an offence. | ||
(13) The costs (including ancillary costs) of any possession, detention or destruction carried out by the Health Service Executive under subsections (4) and (10) shall be recoverable as a simple contract debt in any court of competent jurisdiction from a person convicted of an offence under this Act or the Act of 2015. | ||
(14) In this section— | ||
“premises” means any place, ship or other vessel, aircraft, railway wagon or other vehicle, and includes a container used to transport tobacco products or retail packaging of tobacco products or any article or substance used in the manufacture, processing or storage of tobacco products or retail packaging of tobacco products; | ||
“record” includes, in addition to a record in writing— | ||
(a) a disc, tape, sound-track or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form, | ||
(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and | ||
(c) a photograph, | ||
and any reference to a copy of a record includes— | ||
(i) in the case of a record to which paragraph (a) applies, a transcript of the sounds or signals embodied therein, | ||
(ii) in the case of a record to which paragraph (b) applies, a still reproduction of the images embodied therein, and | ||
(iii) in the case of a record to which paragraphs (a) and (b) apply, such a transcript together with such a still reproduction; | ||
“retail packaging” has the same meaning as it has in section 2 of the Act of 2015; | ||
“tobacco product” includes a tobacco product within the meaning of section 2 of the Act of 2015.”. | ||
