Information for Tobacco Retailers and Consumers

The Public Health (Tobacco) Act 2008 brought into effect from 1 July 2009 new requirements for tobacco retailers and the community, and incorporates provisions of the Public Health Act 1991 relating to tobacco control. 

This new legislation aims to reduce the incidence of smoking and other consumption of tobacco products and non-tobacco smoking products, particularly by young people, in recognition of the fact that the consumption of those products adversely impacts on the health of the people of New South Wales and places a substantial burden on the State’s health resources. 

The Act includes provisions relating to:

• Regulating the packaging, advertising and display of tobacco products and non-tobacco smoking products
• Prohibiting the supply of those products to children
• Reducing the exposure of children to environmental tobacco smoke. 

The new provisions in this legislation:

• Ban smoking in cars in which a person under 16 years is present
• Prohibit the display of tobacco products - see Factsheet
• Limit outlets to one point of sale for tobacco products - see Factsheet
• Introduce a notification scheme for tobacco retailers - see Factsheet
• Change the law about tobacco vending machines - see Factsheet
• Increase penalties for tobacco-related offences - see Factsheet
• Require tobacco products to be removed from all shopper-loyalty programs - see Factsheet.

The Public Health (Tobacco) Regulation 2009 has been prepared to support the Act.

The Public Health (Tobacco) Act 2008 commences on 1 July 2009 with a range of phase-in periods for some of the provisions.

These new reforms included under the Act are:

• Banning the display of tobacco products, non-tobacco smoking products and smoking accessories in shops, with a phase-in approach to implementation giving businesses the time to plan for the changes - see Factsheet;
• Restricting the sale of tobacco products and non-tobacco smoking products to a single point of sale on premises - see Factsheet;
• Banning smoking in cars when children under the age of 16 years are present, attracting an on-the-spot fine of $250;
• A notification and negative licensing scheme for tobacco retailers - see Factsheet. This means that a person or company which has been convicted of two offences against the same provision of the Act or regulations within any three year period on the same business premises will be prohibited from selling tobacco for a three month period.  A person or company which has been convicted of three offences against the same provision of the Act or regulations within any three year period on the same business premises will be prohibited from selling tobacco for 12 months. 
• Allowing cigarette vending machines only in licensed venues restricted to over 18s, must be activated by a staff member or by a token which is only available from a staff member and will be subject to the same product display bans as all other retail environments - see Factsheet;
• Removing tobacco products from all shopper-loyalty programs - see Factsheet; and
• Increasing by up to ten-fold the penalties applying for tobacco-related offences such as selling cigarettes to children - see Factsheet.

Some of the new reforms apply to all retailers from 1 July 2009 with no phase-in period. Other reforms are subject to phase-in periods to provide retailers with sufficient time to prepare for the required changes.

Different phase-in periods apply to different types of businesses for one of the new provisions, which involves a ban on display of tobacco products, non-tobacco smoking products and smoking accessories. 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.

Tobacco retailers need to plan for the commencement dates for the new Act provisions. Retailers also need to ensure the necessary changes for selling tobacco are in place for the effective commencement dates, taking into account the respective phase-in periods, shown in the table.

The Public Health (Tobacco) Act 2008 recreates a number of offences that previously existed within Part 6 of the Public Health Act 1991.  These offences include the offences of

• selling tobacco to minors;
• advertising tobacco products;
• sale of novelty items and confectionary that resembles a tobacco product; and
• sale of fruit or confectionary flavoured cigarettes.

Breaches of the relevant provisions of the Public Health (Tobacco) Act 2008 and the Public Health (Tobacco) Regulation 2009 that recreate these offences will continue to be handled in accordance with the Department of Health - Prosecution Policy and Guidelines. 

The Public Health (Tobacco) Act 2008 also creates a number of new offence provisions that commence on 1 July 2009 including:

• selling tobacco products from more than one point of sale on retail premises; and
• failing to display new signage required by the Public Health (Tobacco) Regulation 2009.

The Department of Health - Prosecution Policy and Guidelines provides for the issuing of a warning letter in appropriate circumstances and provides that prosecution will only be considered where it is in the public interest to do so.  The Policy sets out a number of factors which will be considered in assessing the public interest.

It is acknowledged that during the first three months of operation of the single point of sale provisions retailers will need to consider how best to apply the new rules in their specific premises and operating environment. This factor will therefore also be considered as additional and significant public interest issue in determining whether to proceed with compliance activity over the first three months after commencement.  Proprietors will however also be expected to act in good faith and make all reasonable efforts to seek to comply with the new laws over that period.

Some retailers have not yet obtained the prescribed signs (see Factsheet - Signage) required by the Public Health (Tobacco) Regulation 2009.  During the three month period in which tobacco retailers are required to notify their business details to the Director-General of Health NSW Health inspectors will not take enforcement activity against retailers who comply with the signage requirements under the Public Health (Tobacco) Regulation 1999 which applied immediately before 1 July 2009. 

Penalties apply under the Public Health (Tobacco) Act 2008. Click here for information on what types of penalties apply to both individual retailers and corporations for non-compliance of sections of the Act.

From 1 October 2009, tobacco retailers operating in NSW must not engage in tobacco retailing unless they have notified the Director-General that they intend to engage in tobacco retailing.  Retailers can register their business details on the free on-line Government Licensing Service from 1 July 2009 at http://www.licence.nsw.gov.au.

The maximum penalty for not registering is 100 penalty units, or $11,000. 

The legislation also includes a negative licensing scheme, such that retailers who are convicted of selling cigarettes to children or breaching other regulations on two or more occasions in any three year period will automatically be prohibited from selling tobacco for specified periods.  On a second conviction the ban will be three months, for a third conviction the ban will be for 12 months.

Retailers must provide the following business details when registering on the Government Licensing Service:

• The business address of the person intending to engage in tobacco retailing
• The address of the premises at which the person intends to engage in tobacco retailing
• The registered business name (if any) of the relevant business and, if the business is incorporated, the ACN
• The names and addresses of the owners and directors of the tobacco retailing business

Following a successful notification on the Government Licensing Service, a confirmation email will be sent to the primary contact of the business, containing a Tobacco Retailer Number.

See the Factsheet for more information.