Arrangement

A LAW to amend the Restriction on Smoking (Jersey) Law 1973 and to provide for related matters.

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

“A1   Interpretation

In this Law, unless the context otherwise requires –

‘advertisement’, in relation to smoking or tobacco (or a tobacco product) includes every form of recommendation of smoking or tobacco (or a tobacco product) to the public including –

(a)     a statement of the name of a manufacturer or importer of a tobacco (or a tobacco product);

(b)     the name of any brand of tobacco (or a tobacco product);

(c)     a statement of any trade description or designation or the display or other publication or a trademark, emblem, marketing image or logo, by reference to which the tobacco (or tobacco product) is marketed or sold, in circumstances where such statement, display or publication may reasonably be regarded as a recommendation to the public;

(d)     a statement of the properties of the tobacco on a label, container, wrapper, package, circular, pamphlet or brochure issued to the public or given to a purchaser with the public;

‘authorized officer’ shall be construed in accordance with Article 1F;

‘brandsharing’ includes the use by a person of any feature that does not relate to tobacco (or a tobacco product) but which is the same as, or is so similar as to be likely to be mistaken for, any feature that is connected to tobacco (or a tobacco product) for the purpose of promoting tobacco (or a tobacco product);

‘cigarette’ includes cut tobacco rolled in paper, tobacco leaf or other material in such form as to be capable of immediate use for smoking;

‘coupon’ means a document or other thing which (whether by itself or not) can be redeemed for a product, service, cash or other benefit;

‘Committee’ means the Health and Social Services Committee;

‘Law of 1974’ means the Licensing (Jersey) Law 1974;[2]

‘Law of 2005’ means the States of Jersey Law 2005;[3]

‘licence’ has the meaning assigned to it by the Law of 1974 and ‘holder of a licence’ shall be construed accordingly;

‘licensed premises’ has the meaning assigned to it by the Law of 1974;

‘point of sale’ means a point within any fixed or movable premises at which a gantry or display unit that is –

(a)     fixed to one place within fixed or movable premises; and

(b)     primarily used for the display of tobacco to customers;

‘public’ means the public generally or any section of the public, however selected;

‘public transport’ means the classes of public service vehicles as defined in Article 5(1) of the Motor Traffic (Jersey) Law 1935;[4]

‘smoking’ means –

(a)     being in possession of ignited tobacco; or

(b)     being in possession of a pipe or other smoking equipment in which tobacco is ignited,

and ‘smoke’ shall be construed accordingly;

‘sold’ includes offered for sale (or offered for sale and sold) whether by retail or otherwise and cognate words shall be construed accordingly;

‘sponsorship agreement’ is an agreement under which, in the course of a business, a party to it makes a contribution towards something, whether the contribution is in money or takes some other form including the provision of services or of contributions in kind that promotes tobacco in Jersey;

‘tobacco’ means all or any of the following items derived from the tobacco plant –

(a)     a cigarette;

(b)     tobacco leaf;

(c)     cut tobacco (including hand-rolling tobacco);

(d)     any thing that consists in whole or in part of tobacco, including cut tobacco, hand-rolling tobacco and tobacco leaf or any of them;

(e)     tobacco to which paragraph 5 of Part II of the First Schedule of the Customs and Excise (Jersey) Law 1999[5] applies,

but does not include a product that contains nicotine for use in the treatment of addiction to tobacco or any other medicinal purpose;

‘tobacco product’ means any of the following –

(a)     any cigarette paper, tube or filter or other thing manufactured for use in smoking;

(b)     any thing on which an emblem, symbol, logo, image or name of tobacco or a manufacturer of tobacco is printed or affixed;

(c)     a coupon used for promotion of tobacco;

‘use of tobacco’ means sucking, sniffing or chewing tobacco;

‘vending machine’ includes a machine –

(a)     that sells or offers cigarettes for sale; and

(b)     in respect of which a purchaser is permitted to supply himself or herself, either on or before payment, with tobacco whether by means of the depositing of money or a token (that is used as a substitute for money) in that machine or otherwise.”.

“(iv)   the promotion of tobacco or a tobacco product (or both of them) including, without prejudice to the generality of the foregoing, promotion by distribution of tobacco or a tobacco product (or both of them) with or without charge, making available any product, coupon or thing (whether with or without charge, or at a discount) in any circumstances as may be specified in the Regulations, and any agreement relating to the promotion,

(v)     the promotion of tobacco or a tobacco product (or both of them) by means of brandsharing, and any agreement relating to the promotion,

(vi)     the promotion of tobacco or a tobacco product (or both of them) by means of sponsorship, and any sponsorship agreement relating to the promotion.”;

“(2)    Without prejudice to the generality of paragraph (1)(b)(ii), the Regulations may provide for –

(a)     the electronic means of transmitting an advertisement where it is transmitted in electronic form;

(b)     the display of an advertisement for tobacco (or an advertisement specifying the price of tobacco) in a place or on a website where tobacco is offered for sale;

(c)     the prohibition or restriction of the publication of such an advertisement in a newspaper, periodical, magazine (including a magazine that is made available on an airplane or a vessel) or class of newspaper, periodical or magazine;

(d)     persons or classes of person participating in the distribution of the advertisement; and

(e)     an advertisement that is contained in any form of communication whether using printed or written words, designs, still or moving pictures or images or any other devices, and whether the medium of communication is tangible by way of image projection or sound reproduction, computer communication and radio, television or similar broadcast or other medium.

(3)     Without prejudice to the generality of paragraphs (1)(b)(ii) and (1)(b)(iv) to (vi), Regulations made under any of those paragraphs may –

(a)     make different provision in respect of the prohibition or restriction for persons involved in the tobacco trade and specialist tobacconists;

(b)     make different provision for persons (or classes of persons) to whom contractual relationships that arise out of a promotion to which paragraph (b)(iv), (b)(v) or (b)(vi) applies, or otherwise have effect, on the date on which the Regulations come into force;

(c)     make different provision for different types and classes of tobacco or tobacco product;

(d)     require notices or warnings of the danger to health of smoking and use of tobacco, as are specified in the Regulations, to be printed on the packaging or container of the tobacco or inserted into the container of the tobacco or printed on or inserted into any thing connected with the promotion; and

(e)     provide for a duty on any person concerned with the advertisement or promotion (including any distribution or publication) to which the Regulations have effect, to take all reasonable steps to ensure compliance with the Regulations, including compliance by other persons concerned with the advertisement, promotion, distribution and publication to which the Regulations apply.

(4)     Regulations under this Article may provide for a duty on any of the following –

(a)     an occupier (or a person concerned in the management) of a place of public entertainment in respect of which the Regulations have effect;

(b)     the proprietor of public transport in respect of which the Regulations have effect;

(c)     an occupier of premises in which tobacco is sold (including a premises in which tobacco is sold by means of a vending machine) in respect of which the Regulations have effect;

(d)     a person who imports into, or manufactures in, Jersey a packet or container referred to in paragraph (1)(a) and a person who sells tobacco in respect of which the Regulations have effect,

to take all reasonable steps to ensure compliance with the Regulations, including compliance by other persons on or in those premises, the place of public entertainment or the public transport, as the case may be, to which the Regulations apply.

(5)     The Committee may prescribe by Order the content and publication requirements for a notice or warning in respect of which provision has been made in Regulations made under paragraph (1)(a) or (3)(d) including the size of such notice and the information, warning, words, images or symbols to be specified on it.”.

“1A   Regulations for public eating premises

(1)     The States may make Regulations to prohibit or restrict smoking and the use of tobacco in premises (or a part of premises) –

(a)     in which food is sold, or is supplied otherwise than by sale, to members of the public for consumption on those premises (or that part); and

(b)     to which members of the public have access (whether on payment of a charge or otherwise) or are invited to for any purpose or by virtue of membership of any club or society,

and without prejudice to the generality of the foregoing, such premises (or part) includes licensed premises but does not include a dwelling.

(2)     The Regulations may make different provision for different parts of premises or classes of premises, including classes of premises selling, or supplying otherwise than for sale, different food or classes of food.

(3)     Without prejudice to the generality of paragraph (1), Regulations made under this Article –

(a)     may make provision in respect of the prohibition or restriction for premises registered under the Places of Refreshment (Jersey) Law 1967[6] and a proprietor to whom that Law applies;

(b)     may make provision for premises registered under the Tourism (Jersey) Law 1948[7] and a proprietor to whom that Law applies;

(c)     may, where premises referred to in paragraph (1) are licensed premises –

(i)      make provision for a holder of a licence granted in respect of licensed premises, and

(ii)      make different provision for licensed premises having regard to the different categories of licence granted under the Law of 1974;

(d)     may specify a period or periods in which the prohibition or restriction is to apply in those premises (or part of those premises) and make different provision for that period or periods for different premises (or parts of premises) or classes of premises (or parts of premises); and

(e)     may make provision for a duty on an occupier of premises, a proprietor, holder of a licence and the person having ownership of the business that is carried on in premises to which this Article applies, including a duty on any of them to take all reasonable steps to ensure compliance with the Regulations including compliance by other persons in premises to which the Regulations apply.

(4)     Without prejudice to the generality of paragraph (1), Regulations may make provision for premises (or a part of premises) in which food is –

(a)     sold for consumption in those premises (or that part); or

(b)     supplied otherwise than by sale for consumption on those premises (or that part),

and the food is sold or supplied in a different part of those premises to the part in which it is consumed.

1B     Regulations for sale of tobacco by vending machines

(1)     Without prejudice to the generality of Article 1(1)(b)(iii), the States may by Regulations, make provision for any of the following in respect of the sale of tobacco by means of a vending machine –

(a)     the position in which a vending machine from which tobacco is sold shall be located in premises to which a person who is under the age of 18 years has access (whether by virtue of membership of any club or society or otherwise, whether on payment of a fee or otherwise and whether accompanied by a person of or over that age or otherwise);

(b)     the position in which a vending machine from which tobacco is sold shall be located in licensed premises to which a person who is under the age of 18 years is permitted access in accordance with the Law of 1974 (whether by virtue of membership of any club or society or otherwise, and whether on payment of a fee or otherwise);

(c)     the installation of a vending machine from which tobacco is sold in a manner and location that permit –

(i)      the occupier of premises referred to in sub-paragraph (a), (or a person having ownership of the business that is carried on in premises to which this Article applies) or persons employed by the occupier (or the person having ownership of the business), to supervise and observe all persons using that machine, and

(ii)      in the case of licensed premises referred to in sub-paragraph (b), the holder of the licence granted in respect of those licensed premises, or persons employed by the holder of the licence, to supervise and observe all persons using that machine;

(d)     the prohibition or restriction of the installation of a vending machine from which tobacco is sold in any part of premises referred to in sub-paragraph (a), or licensed premises referred to in sub-paragraph (b), in which a person using that machine cannot be supervised or observed; and

(e)     a duty on a person referred to in sub-paragraph (c) to take all reasonable steps to ensure compliance with the Regulations, including compliance by other persons in premises (including licensed premises) in respect of which the Regulations have effect.

(2)     Regulations made under this Article may prohibit or restrict the operation of a vending machine from which tobacco is sold and that is located on –

(a)     premises to which a person who is under the age of 18 years has access (whether by virtue of membership of any club or society or otherwise, whether on payment of a fee or otherwise and whether accompanied by a person of or over that age or otherwise); or

(b)     licensed premises to which a person who is under the age of 18 years is permitted access in accordance with the Law of 1974 (whether by virtue of membership of any club or society or otherwise, and whether on payment of a fee or otherwise),

during any period in which an event is held exclusively for persons who are under the age of 18 years on those premises and may provide for any of the following –

(i)      an occupier of premises referred to in sub-paragraph (a),

(ii)      a person having ownership of a business that is carried on in premises referred to in sub-paragraph (a),

(iii)     a holder of a licence in respect of licensed premises referred to in sub-paragraph (b),

to ensure that the vending machine concerned does not operate during that period.

1C     Regulations to amend Article A1

The States may, by Regulations, amend the definitions in Article A1.

1D     Articles 1, 1A and 1B: supplemental provisions

(1)     Without prejudice to the generality of Articles 1, 1A and 1B, Regulations made under any of those Articles may provide for any of the following –

(a)     a requirement to display notices in respect of the prohibition or restriction on smoking in premises (or a part of premises), a place of public entertainment, or any public transport, to which the Regulations have effect and, where appropriate, to display notices specifying where or when the prohibition or restriction on smoking does not apply; and

(b)     such incidental, consequential and transitional provisions as the States consider to be necessary or expedient for the Regulations.

(2)     Without prejudice to the generality of paragraph (1)(a), Regulations made under Article 1A may make different provision for notices to be displayed in different classes of premises (or a part of those premises).

(3)     Without prejudice to the generality of Articles 1(1)(b)(i) and 1A, Regulations made under –

(a)     Article 1A may make provision for the liability of any person who contravenes the Regulations to pay for any food or beverages supplied to or ordered by those persons in premises to which the Regulations apply; and

(b)     Article 1(1)(b)(i) make provision for the liability of any person who contravenes the Regulations to pay for any thing or service provided in the place of public entertainment or public transport to which the Regulations apply.

1E     Orders in relation to notices

(1)     The Committee may prescribe by Order the requirements for a notice in respect of which provision has been made in Regulations under this Law, including the size of, and any symbols to be displayed on, such notice.

(2)     A person who contravenes a provision of an Order made under this Article shall be guilty of an offence and liable to a fine of level 3 on the standard scale.

1F     Authorized officers

(1)     The Committee may authorize one or more persons to whom paragraph (6) applies to be authorized officers for the purpose of ensuring compliance with Regulations (other than Regulations referred to in paragraph (2)) made under this Law and an Order made under Article 1E.

(2)     A Traffic Officer appointed as such under the Motor Traffic (Jersey) Law 1935 shall, by virtue of that appointment, be an authorized officer for the purposes of ensuring compliance with Regulations made under Article 1(1)(b)(i) that relate to public transport and for that purpose may at all reasonable times –

(a)     enter and inspect any public transport in respect of which the Regulations have effect; and

(b)     examine any documents relating to the public transport in respect of which the Regulations have effect,

and, where the authorized officer reasonably suspects that a provision of the Regulations is being or has been contravened, he or she may require any person on the public transport to state his or her name and address.

(3)     An authorization under paragraph (1) shall be in writing and an authorized officer shall –

(a)     prior to exercising his or her functions under this Law, state his or her name and produce the authorization (or in the case of an authorized officer referred to in paragraph (2), produce evidence of his or her appointment as a Traffic Officer); and

(b)     when exercising his or her functions under this Law, cite the power under this Law that he or she proposes to exercise and the provision of this Law in which that power is specified.

(4)     For the purposes of ensuring compliance with –

(a)     Regulations made under Article 1A, an authorized officer may at all reasonable times –

(i)      enter and inspect premises or a part of premises (other than a dwelling) in respect of which the Regulations have effect,

(ii)      take samples of articles or substances found in premises in respect of which the Regulations have effect, and

(iii)     where the authorized officer reasonably suspects that a provision of the Regulations is being or has been contravened, require any person on those premises to state his or her name and address;

(b)     Regulations made under Article 1B, an authorized officer may at all reasonable times –

(i)      enter premises (other than a dwelling) in respect of which the Regulations have effect,

(ii)      where the Regulations require, ensure that a vending machine selling tobacco does not operate during an event to which Article 1B(2) applies,

(iii)     inspect any vending machines in respect of which the Regulations have effect,

(iv)     examine any documents connected with the vending machine in respect of which the Regulations have effect, and

(iv)     where the authorized officer reasonably suspects that a provision of the Regulations is being or has been contravened, may require any person on those premises to state his or her name and address;

(c)     Regulations made under Article 1(1)(b)(i) that relate to a place of public entertainment, an authorized officer may at all reasonable times –

(i)      enter and inspect any place of public entertainment to which the Regulations have effect,

(ii)      take samples of any articles or substances in any place of public entertainment in respect of which the Regulations have effect, and

(iii)     where the authorized officer reasonably suspects that a provision of the Regulations is being or has been contravened, require any person on the place of public entertainment to state his or her name and address;

(d)     Regulations made under Articles 1(1)(b)(ii), (iii), (iv), (v) or (vi) (or any combination of them), an authorized officer may at all reasonable times –

(i)      enter premises (other than a dwelling) in respect of which the Regulations have effect,

(ii)      inspect any goods or other things used in the sale, advertising or promotion of tobacco (or a tobacco product), in respect of which the Regulations have effect,

(iii)     examine any documents connected with the sale, advertising or promotion of tobacco (or a tobacco product) in respect of which the Regulations have effect, and

(iv)     take samples of any articles, goods, or other things used in the sale, advertising or promotion of tobacco (or tobacco product) in respect of which the Regulations have effect,

and where the authorized officer reasonably suspects that a provision of the Regulations is being or has been contravened he or she may –

(A)    require the occupier of those premises or connected with the sale of tobacco (or a tobacco product), advertising or promotion, to produce any records that relate to the goods, sale, advertising, promotion, sponsorship or brandsharing, as the case may be, to which the Regulations apply,

(B)     inspect and take copies of those records, or of any entry in, those records, and

(C)     require any person on those premises to state his or her name and address.

(5)     A person –

(a)     who gives information to an authorized officer when the officer is exercising his or her functions, being information which that person knows to be false or misleading; or

(b)     who obstructs or impedes an authorized officer when the officer is exercising his or her functions,

shall be guilty of an offence and liable to a fine of level 4 on the standard scale.

(6)     This paragraph applies to a person who is –

(a)     an inspecteur sanitaire within the meaning of the Loi (1934) sur la Santé Publique;[8]

(b)     an authorized officer within the meaning of the Food and Drugs (Jersey) Law 1966;[9]

(c)     an authorized person within the meaning of the Statutory Nuisances (Jersey) Law 1999;[10] or

(d)     a designated officer within the meaning of the Piercing and Tattooing (Jersey) Law 2002.[11]

1G     Regulations generally

The power to make Regulations under this Law may be exercised –

(a)     either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case; and

(b)     so as to make, as respects the cases in relation to which it is exercised –

(i)      the full provision to which the power extends or any lesser provision (whether by way of exception or otherwise),

(ii)      the same provision for all cases in relation to which the power is exercised, or different provision for different cases or classes of case, or different provision as respects the same case or class of case for different purposes of the enactment, and

(iii)     any such provision either unconditionally or subject to any specified condition.”.

“2      Offences, defences and penalties

(1)     Regulations under this Law may provide that a person who contravenes a specified provision of the Regulations shall be guilty of an offence and liable –

(a)     in the case of Regulations made under Article 1(1)(a), 1(1)(b)(i) or (b)(iii), 1A or 1B (or any combination of them), to a fine that does not exceed level 4 on the standard scale; and

(b)     in the case of Regulations made under Article 1(1)(b)(ii), (b)(iv), (b)(v) or (b)(vi) (or any combination of them), to a fine.

(2)     Regulations under this Law may provide for a defence in proceedings for an offence under the Regulations either generally or in specified circumstances and offences by a limited liability partnership and body corporate.”.

“2A   Service of documents

(1)     Any notice or other document required under this Law, or under Regulations or an Order made under this Law, to be given to or served on any person may be given or served on the person in question –

(a)     by delivering it to the person;

(b)     by leaving it at the proper address of the person; or

(c)     by sending it by post to the person at that address.

(2)     Any such notice or other document may –

(a)     be given to or served on a company incorporated in Jersey by being delivered to the company’s registered office; or

(b)     be given to or served on a partnership, company incorporated outside Jersey, or unincorporated association –

(i)      by being given to or served (in any case) on a person who is a principal person in relation to it, or on its secretary, clerk or other similar officer or any person who purports to act in any such capacity, by whatever name called, or (in the case of a partnership) on the person having the control or management of the partnership business, or

(ii)      by being delivered to the registered or administrative office of any such person.

(3)     For the purposes of this Article and of Article 12 of the Interpretation (Jersey) Law 1954,[12] the proper address of any person to or on whom a document is to be given or served by post shall be the person’s last known address, except that –

(a)     in the case of a company (or person referred to in paragraph (2)(b)(i) in relation to a company incorporated outside Jersey), it shall be the address of the registered or principal office of the company in Jersey; and

(b)     in the case of a partnership (or person referred to in paragraph (2)(b)(i)), it shall be the address of the principal office of the partnership in Jersey.”.

“ ‘Minister’ means the Minister for Health and Social Services;”.