Challenges in Enforcement of Tobacco Control Legislation

Laura Garvey

Acting Manager National Tobacco Control Office

The Law/MOU

Legal Challenges

Specific court cases Section 47 – smokefree Section 45 – sales to

minors Section 36 – promotion

Issues “Dark Market” Promotion New/“Novel” tob. product Penalties/ removals

Overview - Challenges in TC Enforcement

Memorandum of Understanding

Health Services Executive and Health and Safety Authority

Prevention and control of exposure of ETS Section 47 PHTA Health safety welfare at work at 1989 Avoid duplication of inspection

Smokefree – PHTA Section 4716.—The Principal Act is amended by the substitution of the following section for section 47:

‘‘47.—(1) Subject to subsection (7), the smoking of a tobacco product in a specified place is prohibited.

(7) This section shall not apply to— (c) subject to paragraph (d), a place or premises, or a part of a place or premises, that is wholly uncovered by any roof, whether fixed or movable,

(d) an outdoor part of a place or premises covered by a fixed or movable roof, provided that not more than 50 per cent of the perimeter of that part is surrounded by one or more walls or similar structures inclusive of windows, doors, gates or other means of access to or egress from that part),

Smokefree Workplace Implementation

Active enforcement by Environmental Health Officers under the National Inspection Programme in the last 10 years has played a hugely important role in bedding in the smoke-free workplace legislation

At the introduction of the ban 35,000+ inspections carried out annually by EHOs

98% compliance

266 cases 275 convictions

Fibber Magees Bar, Eyre Square, Galway

Fibber Magee’s – Case Study Major challenge / Potential to undermine success Orchestrated – Other pubs involved & potential to

mushroom Inspectors confronted with PHOTOGRAHER & FILM

CREW !!! (TV footage used in evidence) Night inspections – large numbers smoking Legal proceedings

Notice of intent to seek HC Injunction Separate District Court cases Objection to

licences Involved preparation of sworn statements by

EHO’s

What are the Challenges/Difficulties which arise in Enforcement?

Smoking Areas 85% of cases relate to pubs, night clubs or hotels In recent years > 50% of cases relate to smoking areas Exemptions set out in Section 47 No provision for approval of exempted areas / smoking

areas Thus HSE/EHOs do not have legal authority to give

approval Interpretation a matter for the Courts 3 High Court Judgements that have clarified &

restricted the exemptions in Section 47(c)&(d) with negative consequences for some structures.

Freshwall (2005)

Brookshore Ltd (2009)

Johnston Taverns (2012)

In Summary

The closer a structure is to the limit of compliance the more likely it will be deemed non-compliant by the court.

Enforcement Priority Smoking areas in licensed premises in

Environmental Health Service Business Plan for 2014

Sales to Minors – PHTA Section 45

It is an offence for a person to sell a tobacco product a person who has not attained the age of 18 years.

Defense.....to prove -made all reasonable efforts that the person

has attained the age of 18 years, -age card provided

Court may have regard to a person’s physical appearance or attributes for the purpose of determining whether that person is under the age of 18 years or was

Prosecutions Section 45

Year Cases Convictions

Probation Act

Dismissed/SO

2013 17 16 5 3

2012 5 2 2 6

2011 1 1

2010 12 8 1 6

2009 8 6 1 4

2008 23 19 1 4

Total 63 54 10 23

High Court - Case Stated Murphy V HSE

Consultative case stated arising out of the prosecution under the Health (Miscellaneous Provisions) Act 2001.

The District Court Judge referred the case to the High Court as a number of points of law including whether the use of minors to detect the illegal sale of tobacco to underage customers constitutes entrapment and was contrary to public policy.

High Court Found:

Not entrapment.

Not contrary to public policy.

Reinforces the Test Purchase Protocol.

“Test purchase was necessary for the protection of children themselves”, subject to the protocol

Promotion and Sponsorship -Section 36 PHTA

Section 36(2) Offence for a person to give financial or other assistance, or cause financial or other assistance to be given, to or for the benefit of a person, or for or in relation to an event or activity, in consideration of the—

(a) use, display or advertising by the person, or at the eventor activity concerned,(b) association with the person, event or activity, or(c) promotion,of a tobacco product, the name of a tobacco manufacturer or importer, the name of a brand of tobacco product or a trademark, emblem, marketing image or logo used in the marketing of a tobacco product.

Principal Findings of Judge Kearns in the High Court:

The Pall Mall “Pocket a Packet Mystery Shopper ” was a promotion within the ordinary and natural meaning of that term.

The addition of the word ‘promotion’ in Section 36 may simply be seen as widening the range of activities coming under the prohibition.

‘Financial Assistance’ in Section 36 is not a term of art although the words are ambiguous. If it was intended to prohibit ‘any kind of payment’ the Oireachtas would have done so expressly.

The words ‘financial assistance’ do not sit logically or sensibly with a once off prize or reward of a small sum, in this case €30. Financial Assistance is a question of degree. ‘Financial Assistance’ does not include a gift, prize or reward so as to include a monetary payment or cash voucher redeemable for money or value worth from the scope of the definition.

‘Financial Assistance’ must assist a particular event or activity

Innovation to increase Sales

1st Gemini pack Lucky strike And Now B&H slide Ice Capsule Only place left to advertise is on or

in packs Leaflet inside pack

Combi Packs

Penalties and Removals

Person convicted under the PHTA subject to fine up to €4,000 and or 3 months in prison

Upon conviction a registered person shall be removed from the register for a period of up to 3 months

Fines ranging from €50 – €4,000

Removals from the Retail Register range from 1hour to 3 months the maximum suspension

Thank You