Frequently asked questions - Tobacco Retailing Legislation

The Public Health (Tobacco) Act 2008 and Public Health (Tobacco) Regulation 2009 commenced on 1 July 2009.

In recognition that the new legislation will require changes for businesses selling tobacco, a range of phase-in periods have been provided to allow businesses time to make the necessary changes (e.g. moving tobacco products out of sight of customers). For the effective implementation dates of each provision, see Phase-in periods.

New requirements affecting tobacco retailers which commenced on 1 July 2009 are:

• Single point of sale for tobacco products, non-tobacco smoking products and smoking accessories (defined in the Act) - see Factsheet;
• Tobacco retailer notification via the Government Licensing Service - see Factsheet; and
• Removal of tobacco products and non-tobacco smoking products from shopper loyalty programs- see Factsheet.

Smoking by a driver or passenger in a car with a child under the age of 16 is present became an offence on 1 July 2009 punishable by a $250 on-the-spot fine by NSW Police. Click here for more information about this offence.

Phase-in periods apply to a range of other reforms to allow retailers the necessary time to prepare and implement the changes in retail environments.  These reforms include changes to the provisions affecting vending machines; the implementation of the ban on the display of tobacco products at point of sale; and provisions relating to the display of tobacco products by specialist tobacconists. 

From 1 July 2009, tobacco retailers are restricted to selling tobacco products, non-tobacco smoking products and smoking accessories from a single point of sale in each retail outlet. This means that these products can only be sold from one cash register in each premise (although it does not mean that the same cash register must be used all the time). Tobacco vending machines do not constitute a point of sale, but may only be placed in liquor licensed premises that are restricted to over 18s.

For more information, see Factsheet - Single point of sale.

Retailers can put up signs to inform customers of the cash register that is being used for tobacco sales as long as:

• they sell products other than tobacco products, non tobacco smoking products or smoking accessories; and
• the shop or retail outlet has more than one cash register.

The sign must conform to the following requirements: wording of "Tobacco sold at this cash register only", black lettering on a white background and be no larger in size than 60 point type, and the total sign size no larger than 21cm high X 30 cm wide (A4).  Signs will be provided free of charge to retailers following notification via the Government Licensing Service or by contacting the Resource Distribution Unit.

Retailers can make their own signs as long as they meet the requirements set out in Clause 19 of the Public Health (Tobacco) Regulation 2009. Retailers can download a copy of the (conforming) sign for use in retail outlets.

Retailers may put up more than one such sign (for example to aid in queue formation) but alongside each such sign the retailer must also display a sign of the form prescribed in Form 1, Schedule 1 of the Public Health (Tobacco) Regulation 2009 (Smoking Kills Call the Quitline).

For more information, see Factsheet - Single point of sale and Factsheet - Signage.

Tobacco vending machines do not constitute a point of sale, but may only be placed in liquor licensed premises that are restricted to over 18s.

Retailers need to notify the Department of Health via the online Government Licensing Service before commencing tobacco retailing.

You are a tobacco retailer if:

• You sell tobacco products in your store
• Your business is a NSW liquor licensed premises with a vending machine (whether you are the owner of the vending machine or not)
• Your business supplies tobacco vending machines to NSW liquor licensed premises
• You are a tobacconist.

If your business is retailing tobacco products and you have not made your notification on the Government Licensing Service, you need to do so immediately.

Tobacco retailers operating in NSW are required to register their business details on the free, online Government Licensing Service. Retailers can access this site with relevant instructions from 1 July 2009 at: www.licence.nsw.gov.au.

Once you have successfully completed this process you will receive a confirmation (on screen and by email) that you have notified the Department of your tobacco retailing activities.

The confirmation will include a Tobacco Retail Notification (TRN) number for your business and information about how to amend your details if they change in the future.

During the period 1 July 2009 to 1 October 2009, all existing tobacco retailers were required to notify the Department of Health through the online Government Licensing Service.

Failure to notify the Department prior to commencing tobacco retailing activities is now an offence.

You will not need to renew your notification on a regular basis. However, if the details relating to your business change, you will need to update the notification.

Where any of the details relating to your business change, you will need to update the notification.

In particular, the Public Health (Tobacco) Act 2008 requires tobacco retailers to notify the Department, through this online system, within 7 days of a change to the:

• business address;
• address where tobacco retailing takes place;
• name and address of any owner or director of the tobacco retailing business; or
• ownership of the tobacco retailing business.

Changes to the notification, other than a change in ownership of the tobacco retailing business, need to be notified to the Department by contacting the Tobacco Information Line on 1800 357 412 and quoting the TRN number. In the future, changes will be able to be made using the online Government Licensing Service www.licence.nsw.gov.au. At any time, a change in ownership of the tobacco retailing business will require a new notification to be made through the Government Licensing Service.

"Specialist retail tobacconist" means a business which had a gross turnover at least 80% of which was obtained from the sale of tobacco products, non-tobacco smoking products or smoking accessories during the twelve month period before 25 September 2008 (the date of the introduction of the Public Health (Tobacco) Bill 2008).

If a business was engaged in tobacco retailing for only part of the year between 26 September 2007 and 25 September 2008, the 80% rule applies on a pro-rata basis.

See the factsheet for more information.

Specialist tobacconists must comply with the requirements in the Public Health (Tobacco) Act 2008 and the Public Health (Tobacco) Regulation 2009.

The Act provides for an extended phase-in period for approved specialist tobacconists to display tobacco and non-tobacco smoking products in recognition of the status of tobacconists and the increased impact of the display ban on these retailers.

Specialist tobacconists will be entitled to the 12 month phase-in period from 1 July 2009 to 1 July 2010, which also applies to retailers with 50 or less employees.

As well, for a further three year period, from 1 July 2010 to 30 June 2013, approved specialist tobacconists will be able to display tobacco products according to the following requirements:

• not more than one package facing for each product line of tobacco products and non-tobacco smoking products may be displayed;
• no cartons may be displayed;
• the total area of the package facings of tobacco products and non-tobacco smoking products displayed must be no more than 3 square metres; and
• the display of tobacco products and non-tobacco smoking products must be at least two metres from any door or window that opens or looks out on to a public place.

Specialist Tobacconists will be subject to the total display ban from 1 July 2013.

Applications to be considered a Specialist Tobacconist can be made through the online Government Licensing Service following a successful notification as a tobacco retailer.

You will need the Tobacco Retail Notification (TRN) number - which is issued on successful notification as a tobacco retailer - to make a Specialist Tobacconist application.

To complete the application, businesses will need to submit online documented evidence which demonstrates that 80% or more of that business's gross turnover was derived from the sale of tobacco products, non-tobacco smoking products and tobacco accessories for the year prior to 25 September 2008.

A non-refundable application fee of $250 applies to cover the costs of assessing these applications.

Tobacco retailers can submit an online application through the Government Licensing Service between 1 July 2009 and 1 July 2010 to be classed as a specialist tobacconist. However, to access the additional implementation time in relation to the display ban, specialist tobacconist applications must have been determined, and if eligible, approved, by the Director-General of the NSW Department of Health before 1 July 2010. The onus is therefore on retailers to submit their applications well in advance of 1 July 2010 to enable adequate time to process applications. Applicants whose applications are not submitted with adequate time to allow assessment will not receive any concessional treatment between 1 July 2010 and the date on which any application is approved.

This means that while the application time is extended for specialist tobacconists to 1 July 2010, the display ban is effective from 1 July 2010 with no additional implementation time for retailers without determined applications.

Under the Public Health (Tobacco) Act 2008, employees under 18 years of age are allowed to sell tobacco products in NSW retail outlets.

In April 2008, the NSW Government released Protecting Children from Tobacco: A NSW Government Discussion Paper on the Next Steps to Reduce Tobacco-Related Harm which sought feedback on a range of tobacco control measures, including restrictions on employees under 18 years of age from selling tobacco products.

Over 11,900 submissions were received from the community and key stakeholders in response to the Discussion Paper. The majority of tobacco control measures proposed in the discussion paper was reflected in the Public Health (Tobacco) Bill 2008 introduced to Parliament on 25 September 2008. However, the proposed restriction on employees under 18 years of age from selling tobacco products was not reflected in the Bill.

Employers should ensure that all employees involved in selling tobacco products are aware of their obligations under the Public Health (Tobacco) Act 2008. This includes the restriction on selling tobacco products to people under 18 years of age. A brochure is available to help employees understand their roles and responsibilities when selling tobacco products.

The Public Health (Tobacco) Act 2008 introduces tough new penalties for selling tobacco and non-tobacco smoking products to minors, representing a tenfold increase from the Public Health Act 1991. The maximum penalty for selling tobacco products to minors is $11,000 for an individual for a first offence ($55,000 for a second or subsequent offence) and $55,000 for a corporation for a first offence ($110,000 for a second or subsequent offence).

Some of the reforms within the Act will have phase-in periods allowing you time to make the changes.  See Phase-in periods for a quick reference guide for key date changes.  If changes are not in place by these dates, penalties may apply.  See Enforcement and Penalties for a list of penalties and enforcements. 

Tobacco retailers that employed 50 or less employees as at 25 September 2008 (the date of the introduction of the Public Health (Tobacco) Bill 2008) have until 1 July 2010 to comply with the display ban. Retailers that employed greater than 50 employees as at 25 September 2008 have until 1 January 2010 to be compliant. Tobacco vending machines are subject to a display ban from 1 January 2010.

Retailers classified as "Speciality Tobacconists" through the Government Licensing Service (supporting evidence required) have a longer phase-in period in view of the increased impact of the display ban on these retailers.

From 1 January 2010

Tobacco vending machines will no longer be allowed in staff amenity areas.  This change has been made as these areas are open to workers who are under the age of 18 years. 

Vending machines with tobacco products will only be allowed in licensed premises restricted to over 18s - in bar areas and gaming machine areas of hotels, clubs and the casino.  These venues will be permitted to have one vending machine only.

Tobacco vending machines will be subject to the display ban such that tobacco products are not displayed to the public - however the name, description and price of products may be displayed in black letters on a white background.

From 1 July 2010

Tobacco vending machines will be required to have a staff intervention mechanism to ensure that minors cannot access the tobacco products in the machines. A staff intervention mechanism could involve a staff member activating a vending machine by way of a remote control or being required to supply the customer with a specific token.

Occupier liability

The occupier of a premises in which a vending machine is placed (whether the occupier is the owner of the machine or not) is responsible for complying with the Act's requirements in relation to the vending machine.  The owner of the machine is also equally responsible.

See the factsheet for more information.

Yes. But from 1 January 2010, there can only be one vending machine per premises, and it can only be located in the restricted areas of pubs and clubs, and must comply with the display ban. From 1 July 2010, it must be operated by staff intervention.

Inspectors in Public Health Units in the eight Area Health Services will monitor compliance with the Public Health (Tobacco) Act 2008 and the Public Health (Tobacco) Regulation 2009.

A comprehensive compliance monitoring program is already in place for existing tobacco control legislation, and officers will now also enforce the Public Health (Tobacco) Act 2008 and Regulation.

NSW Police will enforce the ban on smoking in cars with children.

Individuals are encouraged to take up complaints about non-compliance with the legislation directly with the manager of the retail or shop outlet.

Alternatively individuals can contact their local Public Health Unit or the NSW Department of Health Tobacco Information Line on 1800 357 412 or email: tobacco@doh.health.nsw.gov.au.

NSW Health will be closely monitoring compliance with the Act and Regulation to ensure that retailers understand and comply with the new requirements.

As well, NSW Health regularly undertakes rigorous population health surveys to monitor the health of the people of NSW.

NSW Health will also evaluate the effectiveness of its communications with the community and retailers.