Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill 2013

Transcription

1 Digest N Smke-free Envirnments (Tbacc Plain Packaging) Amendment Bill 2013 Date f Intrductin: 17 December 2013 Prtfli: Select Cmmittee: Published: 15 January 2014 by Jhn McSriley BA LL.B, Barrister Legislative Analyst P: (04) (Ext. 9626) Health As at 15 January, 1st Reading nt held. Cautin: This Digest was prepared t assist cnsideratin f the Bill by members f Parliament. It has n fficial status. Althugh every effrt has been made t ensure accuracy, it shuld nt be taken as a cmplete r authritative guide t the Bill. Other surces shuld be cnsulted t determine the subsequent fficial status f the Bill. Purpse The main aim f this Bill is t intrduce a plain packaging regime fr tbacc prducts. Backgrund In a recent media release, Assciate Minister f Health Hn Tariana Turia annunced that this Bill was designed t remve tbacc cmpany clurs, lgs and ther marketing plys designed t make tbacc prducts glamrus and attractive and that it is an imprtant step in reducing the uptake f smking and a really imprtant step n ur path t being a Smke-free cuntry by She said that plain packaging, tgether with bigger health warnings, will send a clear message that tbacc causes serius illness and death. She pinted ut that Australia s plain packaging regime had prmpted Wrld Trade Organizatin (WTO) challenges against it by five cuntries (Ukraine, Hnduras, Dminican Republic, Cuba and Indnesia) and that the New Zealand Gvernment wuld cntinue t watch [the] prgress [f 1

2 thse actins] clsely. She said that: Internatinally agreed guidelines fr implementing the UN Tbacc Treaty recmmend that cuntries cnsider plain packaging as part f their cmprehensive tbacc cntrl prgrammes. Australia has shwn the way, and New Zealand will fllw. Ireland has recently apprved its draft plain packaging legislatin fr cnsultatin, and the United Kingdm has als annunced it will put regulatry pwers in place s that it is able t prceed with plain packaging after it cmpletes an independent review due t reprt back in March Departmental disclsure statement: Regulatry impact statement: Main Prvisins Purpse The purpse f Part 2 f the Act ( Cntrl f smking prducts ) is, amngst ther things, t reduce the scial apprval f tbacc use, particularly amng yung peple, by impsing cntrls n the marketing, advertising, r prmtin f tbacc prducts and their assciatin thrugh spnsrship with ther prducts and events; and requiring health messages and ther infrmatin t be displayed n, r included with, packages cntaining tbacc prducts, and n autmatic vending machines; and prhibiting the sale f ty tbacc prducts t peple yunger than 18 years (Sectin 21(a) f the Act). The Bill adds a new additinal purpse which is t require standardised tbacc prducts and plain packages (including messages and infrmatin) fr tbacc prducts in rder t: reduce the appeal f smking and tbacc prducts, particularly fr yung peple; and further reduce any scial acceptance and apprval f smking and tbacc prducts; and make warning messages and images mre nticeable and effective; and reduce the likelihd f cnsumers acquiring false perceptins abut the harmful effects f tbacc prducts (Part 1, Clause 6, amending Sectin 21 by inserting new paragraph (aa)). Use f trade marks The Act, in general terms, limits the use f a tbacc prduct trade mark n any article ther than a tbacc prduct r a cntainer in which a tbacc prduct is sld r shipped. 1 Media release, Hn Tariana Turia, Assciate Minister f Health, First Reading Fr Tbacc Plain Packaging Bill Early 2014, 17 December,

3 The Bill replaces the term any article where it ccurs in this prvisin with the term nn-tbacc prduct which is defined as a tbacc prduct r a package r cntainer in which a tbacc prduct is sld r shipped (Part 1, Clause 7, amending Sectin 24). Cmment The intentin f the amendment is t remve any suggestin that a trade mark may be used n a tbacc prduct, package, r cntainer. 2 Sale f lse cigarettes and lse tbacc prhibited The Bill repeals the prvisin which allws lse cigarettes (in amunts f at least 20 cigarettes) and lse tbacc (in weight f at least 30 grams) and prvides that a tbacc prduct must cmply with regulatins and, if sld r ffered fr sale, must be cntained in a package and must be packaged in a quantity that cmplies with regulatins (Part 1, Clause 9, repealing Sectin 30A; Clause 10 inserting New Sectin 31A, new subsectin (1)). Plain packaging f tbacc prducts The Bill prvides that the package fr a tbacc prduct must cmply with the labelling and health messages prvisins f the Bill (described belw). Other than part f the package that is wrapping r lining, the package may display the brand r cmpany name fr the prduct, but nly in accrdance with regulatins and the package must cmply with regulatins in all respects (Part 1, Clause 10, inserting New Sectin 31A, subclause (2)). Labelling f, and health messages n, tbacc prducts and herbal smking prducts The Bill amends the existing law relating t labelling and health messages intrducing the fllwing differences: the new prvisin relates t tbacc prducts generally and nt just t their sale; the message which at present relates simply t the effects f [the tbacc prduct s] use n health is expanded t require a message relating t bth: the harmful health, scial, r ecnmic effects, r ther harmful effects, f using the prduct; the beneficial effects f stpping the use f the prduct r f nt using the prduct. This same requirement is applied t pictures, and infrmatin that can be required n packages. Similar amendments are made in relatin t herbal smking prducts (Part 1, Clause 11, amending Sectin 32; Clause 12, amending Sectin 32AA). Offences and penalties The Bill increases the penalties in respect f the fllwing : 2 Smke-free Envirnments (Tbacc Plain Packaging) Amendment Bill, 2013 N 186-1, Explanatry nte, clause by clause analysis, p. 6. 3

4 a persn wh, withut reasnable excuse, publishing any advertisement fr a tbacc prduct in cntraventin f Sectin 22 ( Advertising f tbacc prducts ) ; a persn wh, withut reasnable excuse, uses any trade mark r cmpany name in cntraventin f Sectin 24 (1)-(2) ( Use f trade marks, etc., n gds ther than tbacc prducts, r in relatin t spnsred events ), r wh distributes, sells, r ffers r expses fr sale any article in cntraventin f subsectin (3) f that sectin; a manufacturer, imprter, distributr, r retailer f tbacc prducts wh, in cntraventin f Sectin 25 ( Spnsring activity invlving use f trade mark, etc., f tbacc prducts ), spnsrs (within the meaning f Sectin 25(2)) an rganised activity; a manufacturer, imprter, distributr, r retailer f tbacc prducts wh, in cntraventin f sectin 25A( Spnsring activity invlving exclusive supply arrangement ), spnsrs (within the meaning f Sectin 25(2)) any rganised activity The maximum fine fr a manufacturer, an imprter, r a distributr is increased frm $50,000 t $600,000, fr a large retailer frm $10,000 t $200,000, and fr any ther persn frm $10,000 t $50,000). The Bill prvides a definitin f the new term large retailer which reads: in relatin t a persn that is alleged t have cmmitted an ffence in a certain accunting perid, means a retailer whse ttal turnver in the prir accunting perid exceeded $50 millin (as accunting perid and turnver are defined by sectin 2(1) f the Cmmerce Act 1986, except that in thse definitins bdy crprate is t be read as any retailer) (Part 1, Clause 13, amending Sectin 36). New ffence in respect f plain packaging f tbacc prducts The Bill prvides that an ffence is cmmitted by: a persn wh manufactures, distributes, sells, ffers fr sale, r therwise supplies a tbacc prduct knwing that the prduct cntravenes New Sectin 31A(1) (i.e. breaching the plain packaging regulatins and sld r ffered fr sale unpackaged r in illegal quantities see abve); r a persn wh distributes, sells, ffers fr sale, r therwise supplies a tbacc prduct in a package knwing that the package cntravenes New Sectin 31A(2) (i.e. cntrary t the plain packaging regulatins); r a persn wh des the fllwing knwing that a package fr a tbacc prduct cntravenes New Sectin 31A(2) (i.e. cntrary t the plain packaging regulatins): manufactures, distributes, sells, ffers fr sale, r therwise supplies the package; r packages, r arranges fr the packaging f, a tbacc prduct in the package. The maximum penalties are as described abve in respect f ther ffences and detailed abve. The Bill prvides fr a presumptin that a defendant (wh is nt a manufacturer, an imprter, r a distributr) (subject t any defendant s evidence t the cntrary) is a large retailer. The Bill prvides fr an infringement ffence (strict liability (i.e. des nt need evidence f intentin fr a cnvictin t be entered) in respect f distributing, selling, r ffering fr sale r therwise supplying a tbacc prduct in a package knwing that the package cntravenes Sectin 31(2)). This carries a maximum infringement fee f $1,000 (Part 1, Clause 14, inserting New Sectins 36AA and 36AAB; Clause 15 ameding Sectin 38A by inserting new paragraph (j)). 4

5 Regulatins The Bill prvides fr regulatins t be made relating t plain packaging. The regulatins can impse requirements r permit ptins fr tbacc prducts and fr packages fr tbacc prducts. Mst f the prvisins relate t restrictive requirements abut the appearance f the prducts and packages. 3 The term appearance is defined t include anything that may affect a persn's senses (Part 1, Clause 17, inserting New Sectin 39A). Search warrants The Bill prvides that an enfrcement fficer may apply (in the manner prvided in the Search and Surveillance Act 2012) fr a search warrant which may be issued if there are reasnable grunds t suspect an ffence an ffence has been, is being, r will be cmmitted and t believe that there is evidential material in the relevant place. The Bill amends the Schedule f the Search and Surveillance Act 2012 t insert the new pwer under the Smke-free Envirnments Act 1990, t btain and execute a search warrant t search fr evidential material in relatin t a suspected ffence (Part 1, Clause 18, inserting New Sectin 41BA; Part 2, Clause 22, amending the Schedule f the Search and Surveillance Act 2012). Cpyright: NZ Parliamentary Library, 2014 This wrk is licensed under the Creative Cmmns Attributin 3.0 New Zealand licence. In essence, yu are free t cpy, distribute and adapt the wrk, as lng as yu attribute the wrk t the Parliamentary Library and abide by the ther licence terms. T view a cpy f this licence, visit: 3 Ibid., pp. 7 and 8. 5