Smoking
Public Health (Tobacco) Act 2002
AN ACT TO PROVIDE FOR THE ESTABLISHMENT OF A BODY TO BE KNOWN AS THE OFFICE OF TOBACCO CONTROL, TO PROVIDE FOR THE REGISTRATION OF PERSONS ENGAGED IN THE BUSINESS OF SELLING TOBACCO PRODUCTS BY RETAIL, TO PROVIDE FOR A PROHIBITION ON THE ADVERTISING OF TOBACCO PRODUCTS. A PROHIBITION ON SPONSORSHIP BY MANUFACTURERS AND IMPORTERS OF TOBACCO PRODUCTS AND PROHIBITIONS ON CERTAIN MARKETING PRACTICES IN RELATION TO TOBACCO PRODUCTS, TO PROVIDE FOR THE PROHIBITION OR RESTRICTION OF TOBACCO SMOKING IN CERTAIN PLACES, TO REPEAL THE TOBACCO PRODUCTS (CONTROL OF ADVERTISING, SPONSORSHIP AND SALES PROMOTION) ACT, 1978, AND THE TOBACCO (HEALTH PROMOTION AND PROTECTION) ACT, 1988, AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH. [27th March, 2002]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART 1
Preliminary and General
Short title and commencement.
1.—(1) This Act may be cited as the Public Health (Tobacco) Act, 2002.
(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions and for the repeal of different enactments effected by subsection (1) of section 8 and the revocation of different (or different provisions of) regulations effected by subsection (3) of that section.
Interpretation.
2.—(1) In this Act, except where the context otherwise requires—
“Act of 1970” means the Health Act, 1970 ;
“Act of 1978” means the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Act, 1978 ;
“Act of 1988” means the Tobacco (Health Promotion and Protection) Act, 1988 ;
“advertisement” includes, in relation to a tobacco product, every form of recommendation of the product to the public and in particular—
(a) (i) a statement of the name of a manufacturer or importer of a tobacco product, the name of any brand of tobacco product, or
(ii) a statement of any trade description or designation, or a display or other publication of a trademark, emblem, marketing image or logo, by reference to which the product is marketed or sold,
in circumstances where such statement, display or publication may reasonably be regarded as a recommendation of the product to the public, and
(b) a statement of the properties of the product on a label, container, wrapper or package used for the product or in a leaflet, circular, pamphlet or brochure issued to the public or given to a purchaser of the product,
and cognate words shall be construed accordingly;
“authorised officer” means a person appointed under section 48 ;
“chief executive” has the meaning assigned to it by section 28 ;
“designated analyst” has the meaning assigned to it by section 51 ;
“designated laboratory” has the meaning assigned to it by section 51 ;
“functions” includes powers and duties and references to the performance of functions include, as respects powers and duties, references to the exercise of the powers and the performance of the duties;
“health board” means—
(a) a board established under section 4 of the Act of 1970, or
(b) an Area Health Board established by section 14 of the Health (Eastern Regional Health Authority) Act, 1999 ;
“licensed premises” has the same meaning as it has in the Intoxicating Liquor Act, 1988 ;
“Minister” means the Minister for Health and Children;
“Office” means the Office of Tobacco Control established under section 9 ;
“public service vehicle” means a mechanically propelled vehicle used for the carriage of persons for reward and having seating accommodation for more than 8 persons exclusive of the driver;
“register” has the meaning assigned to it by section 37 ;
“registered club” has the same meaning as it has in the Registration of Clubs Acts; 1904 to 2000;
“registration number” has the meaning assigned to it by section 37 ;
“smoke” in relation to a tobacco product, includes sniffing, chewing or sucking of such a product;
“specified place” has the meaning assigned to it by section 47 ;
“superannuation benefit” means a pension, gratuity or other allowance payable on resignation, retirement or death;
“tobacco product” means—
(a) any product consisting, in whole or in part, of tobacco, that is intended to be smoked,
(b) a tobacco product within the meaning of the Finance (Excise Duty on Tobacco Products) Act, 1977 (inserted by section 86 (1) of the Finance Act, 1997 ),
(c) any cigarette paper, tube or filter manufactured for use in the smoking of tobacco,
other than a medicinal product within the meaning of the Irish Medicines Board Act, 1995 .
(2) In this Act—
(a) a reference to a Part or section is a reference to a Part or section of this Act, unless it is indicated that a reference to some other enactment is intended,
(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and
(c) a reference to any enactment or regulations shall be construed as a reference to that enactment or those regulations, as the case may be, as amended, adapted or extended whether before or after the commencement of this subsection, by or under any subsequent enactment.
(3) For the purposes of this Act, a company within the meaning of the Companies Acts, 1963 to 2001, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business in the State.
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Offences and penalties.
5.—(1) A person guilty of an offence under section 20 shall be liable on summary conviction to a fine not exceeding €1,900, or to imprisonment for a term not exceeding 6 months, or to both.
(2) A person guilty of an offence under section 37 (13), 43 , 45 , 46 , 47 or 48 shall be liable on summary conviction to a fine not exceeding €1,900, or to imprisonment for a term not exceeding 3 months, or to both.
(3) A person guilty of an offence under section 33 , 36 , 37 (14), 38 , 39 , 40 , 42 or 53 shall be liable—
(a) on summary conviction to a fine not exceeding €1,900, or to imprisonment for a term not exceeding 3 months, or to both, or
(b) on conviction on indictment to a fine not exceeding €125,000, or to imprisonment for a term not exceeding 2 years, or to both.
(4) Section 13 of the Criminal Procedure Act, 1967 , shall apply in relation to an offence under this Act as if, in lieu of the penalties specified in subsection (3)(a) of that section, there were specified therein the penalties provided for in subsection (3)(a), and the reference in subsection (2)(a) of the said section 13 to the penalties provided for by subsection (3) shall be construed and have effect accordingly.
(5) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other officer of such body corporate or a person who was purporting to act in any such capacity, that officer or person shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(6) On conviction for an offence under this Act the court may, in addition to any other penalty, order any tobacco product or any apparatus, equipment or thing to which the offence relates to be forfeited.
Proceedings.
6.—(1) Summary proceedings for an offence under this Act may be brought and prosecuted by the Office.
(2) Summary proceedings for an offence under this Act may be brought and prosecuted by the health board within whose functional area the offence is alleged to have been committed.
(3) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for an offence under this Act may be instituted not later than 12 months from the date on which the Office or the health board concerned, as may be appropriate, forms the opinion that there exists sufficient evidence to justify instituting proceedings for the offence concerned, but in no case shall such proceedings be brought after 5 years from the date of the alleged commission of the offence.
(4) References in section 382 of the Companies Act, 1963 , to a company shall, for the purposes of this Act, be construed as including references to a body corporate (whether or not a company within the meaning of that section) charged on indictment with an offence under this Act.
Service of documents.
7.—A notice or other document under this Act shall be addressed to the person concerned by name, and may be served on or given to the person in one of the following ways:
(a) by delivering it to the person.
(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address,
(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address.
Regulation and Control of Sale, Marketing and Smoking of Tobacco Products
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Register of retailers of tobacco products.
37.—(1) The Office shall, on the commencement of this section, cause to be established and maintained a register of all persons who carry on, in whole or in part, the business of selling tobacco products by retail (hereafter in this Act referred to as “the register”).
(2) The Office may, for the purpose of defraying any expense incurred in establishing or maintaining the register, charge each person registered under this section a fee of such amount as may be determined by the Minister (in this section referred to as the “appropriate fee”).
(3) Where a person proposes to carry on, in whole or in part, the business of selling tobacco products by retail he or she shall, in accordance with this section, apply to the Office to be registered in the register.
(4) A person who immediately before the commencement of this section was carrying on, in whole or in part, the business of selling tobacco products by retail shall, if he or she wishes to continue carrying on that business, apply, not later than 3 months after such commencement, to the Office to be registered in the register.
(5) An application under this section shall—
(a) be in writing,
(b) specify the name of the applicant and the address at which he or she ordinarily resides,
(c) specify the address of each premises at which the applicant carries on, in whole or in part, the business of selling tobacco products by retail,
(d) contain such other information as may be prescribed by regulations made by the Minister,
and shall be accompanied by the appropriate fee.
(6) As soon as practicable after an application under this section, in respect of which there is compliance with subsection (5), is received by the Office, the Office shall, subject to subsection (9), enter in the register—
(a) the applicant’s name and the address at which he or she ordinarily resides,
(b) the address of each premises at which he or she carries on, in whole or in part, the business referred to in subsection (1),
(c) a number from which it will be possible to identify the applicant (in this Act referred to as the “registration number”),
(d) the names of the persons who supply the applicant with tobacco products in connection with his or her business, and
(e) such other particulars as the Office considers appropriate,
and a person shall, upon the Office so entering the matters specified in this subsection in relation to him or her, be registered for the purposes of this section.
(7) If a person, who is registered under this section, is convicted of an offence under this Act, and the offence relates to or was committed on premises in respect of which the person carries on, in whole or in part, the business of selling tobacco products by retail (being premises in respect of which the person is for the time being so registered) the Office shall, in circumstances where the person is so registered in respect of premises other than the first-mentioned premises, remove the address of the first-mentioned premises from the register, and such person shall not, before the expiration of—
(a) the period of 3 months (in the case of a person convicted summarily of an offence), or
(b) the period of one year (in the case of a person convicted of an offence on indictment),
from the address being so removed, be eligible to be registered under this section in respect of the premises concerned, and the Office shall not, until such expiration, perform, in relation to any application by the person under this section, any function under subsection (6).
(8) If a person, who is registered under this section, is convicted of an offence under this Act, and the offence relates to or was committed on premises in which the person carries on, in whole or in part, the business of selling tobacco products by retail (being the only premises in respect of which the person is for the time being so registered) the Office shall remove from the register that person’s name, the address of those premises, the registration number in respect of him or her and any other particulars entered in the register relating to him or her, and such person shall not, before the expiration of—
(a) the period of 3 months (in the case of a person convicted summarily of an offence), or
(b) the period of one year (in the case of a person convicted of an offence on indictment),
from his or her being so removed, be eligible to be registered under this section in respect of those premises, and the Office shall not, until such expiration, perform, in relation to any application by the person under this section, any function under subsection (6).
(9) Where a person, who has made an application under subsection (3) in respect of which the Office has not yet performed a function under subsection (6), is convicted of an offence under this Act, that person shall not be eligible to be registered under this section before the expiration of—
(a) the period of 3 months (in the case of a person convicted summarily of an offence), or
(b) the period of one year (in the case of a person convicted of an offence on indictment),
from him or her being so convicted, and the Office shall not during that period perform any function under subsection (6) in relation to his or her application.
(10) Where a person to whom subsection (4) applies is convicted of an offence under this Act during the 3 month period referred to therein he or she shall not be eligible to be registered under this section before the expiration of—
(a) the period of 6 months (in the case of a person convicted summarily of an offence), or
(b) the period of 15 months (in the case of a person convicted of an offence on indictment),
from the commencement of this section and the Office shall not during the said period of 6 months or the said period of 15 months, as the case may be, perform any function under subsection (6) in relation to an application under this section by him or her after his or her being so convicted.
(11) A person registered in the register shall, if a particular entered in the register in accordance with subsection (6) ceases to be correct, so inform the Office as soon as may be.
(12) The Office shall upon becoming aware that any particular entered in the register is incorrect or has ceased to be correct make such alterations to the register as it considers necessary.
(13) A person who, in purported compliance with subsection (5), knowingly or recklessly provides information or a particular to the Office that is false or misleading in a material respect, or who believes any such information or particular provided by him or her, in purported compliance with that subsection, not to be true, shall be guilty of an offence.
(14) Subject to subsection (15), it shall be an offence for a person to sell a tobacco product, or cause a tobacco product to be sold, by retail.
(15) (a) It shall be lawful for a person to sell a tobacco product, or cause a tobacco product to be sold by retail, in accordance with this Act, from premises in respect of which he or she is registered under this section.
(b) It shall be lawful for a person who immediately before the commencement of this section carried on, in whole or in part, the business of selling tobacco products by retail to sell a tobacco product, or cause a tobacco product to be sold, by retail, in accordance with this Act, during the period of 3 months after such commencement from premises (being premises in respect of which he or she is not registered under this section) in which, immediately before such commencement, he or she carried on such business.
(c) It shall be lawful for a person to whom paragraph (b) applies and who has made an application under subsection (4) in respect of premises to which that subsection applies to sell a tobacco product, or cause a tobacco product to be sold, by retail, in accordance with this Act, during the period of 12 months after the expiration of the period of 3 months referred to in that subsection, from such premises (being premises in respect of which he or she is not registered under this section).
Display of signs.
46.—(1) There shall be displayed at all times at all premises (in which or in part of which the smoking of tobacco products is permitted) to which members of the public have access, either as of right or with the permission of the occupier of those premises, a sign indicating clearly those parts of the premises in which smoking is permitted and those parts of the premises in which smoking is not permitted, and each such sign shall display the name of the occupier or other person in charge of the premises concerned and the name of the person to whom a complaint may be made by a member of the public for the time being present on the premises who observes another person smoking a tobacco product in a part of the premises in which smoking is not permitted.
(2) There shall be displayed at all times in a public service vehicle a sign stating that smoking is not permitted in that vehicle.
(3) Where there is a contravention of subsection (1), the occupier and person in charge of the premises concerned shall each be guilty of an offence.
(4) Where there is a contravention of subsection (2), the owner and person in charge of the public service vehicle concerned shall each be guilty of an offence.
(5) In this section “owner”, when used in relation to a mechanically propelled vehicle that is the subject of a hire-purchase agreement, means the person entitled to be in possession of the vehicle under the agreement.
Prohibition or restriction on smoking of tobacco products.
47.—(1) The Minister may, by regulations, prohibit or restrict the smoking of tobacco products in—
(a) an aircraft, train, ship or other vessel, public service vehicle, or a vehicle used for the carriage of members of the public for reward other than a public service vehicle,
(b) all or part of—
(i) a health premises, or
(ii) a hospital that is not a health premises,
(c) all or part of a school or college,
(d) all or part of a building to which the public has access, either as of right or with the permission of the owner or occupier of the building, and which belongs to, or is in the occupation of—
(i) the State,
(ii) a Minister of the Government,
(iii) the Commissioners of Public Works in Ireland, or
(iv) a body established by or under an Act of the Oireachtas,
(e) a cinema, theatre, concert hall or other place normally used for indoor public entertainment,
(f) all or part of a licenced premises, registered club, or place of work, or
(g) all or part of any other premises or place,
generally or of such a class as may be specified in the regulations (hereafter in this Act referred to as a “specified place”).
(2) Regulations under this section may revoke regulations made under section 2 of the Act of 1988 and regulations under the said section 2 shall notwithstanding section 8 continue in operation as if made under this section.
(3) Any person who contravenes a provision of regulations made under this section shall be guilty of an offence.
(4) Where in relation to a specified place there is a contravention of regulations under this section the occupier, manager and any other person for the time being in charge of the place shall each be guilty of an offence.
(5) In proceedings for an offence under this section, it shall be a defence for a person against whom such proceedings are brought to show that he or she made all reasonable efforts to ensure compliance with such provisions of regulations under this section as are alleged to have been contravened.
(6) In this section—
“college” means a university, institute of technology or other establishment at which third level education is provided;
“health premises” means any hospital, sanatorium, home, laboratory, clinic, health care centre or similar premises required for the provision of services under the Health Acts, 1947 to 2001, provided and maintained by a health board under section 38 of the Act of 1970;
“place of work” has the same meaning as it has in the Safety, Health and Welfare at Work Act, 1989 ;
“school” has the same meaning as it has in the Education Act, 1998 .
Authorised officer.
48.—(1) The chief executive of the Office shall appoint such one or more persons, as he or she considers appropriate, to be an authorised officer or authorised officers for the purposes of this Act.
(2) The chief executive officer of a health board shall, in relation to the functional area of that health board, appoint such one or more persons, as he or she considers appropriate, to be an authorised officer or authorised officers for the purposes of this Act.
(3) A person appointed to be an authorised officer under this section shall, on his or her appointment, be furnished—
(a) in the case of a person appointed under subsection (1), by the Office, and
(b) in the case of a person appointed under subsection (2), by the health board concerned,
with a warrant of his or her appointment, and when exercising a power conferred by this Act shall, if requested by any person thereby affected, produce such warrant to that person for inspection.
(4) An authorised officer may, for the purposes of this Act—
(a) at all reasonable times enter (if necessary by the use of reasonable force), subject to subsection (6), any premises at which he or she has reasonable grounds for believing that—
(i) any trade, business or activity connected with the manufacture, processing, disposal, exportation, importation, distribution, sale, storage, packaging or labelling of a tobacco product is or has been carried on, or
(ii) records relating to such trade, business or activity are kept,
(b) at all reasonable times enter (if necessary by the use of reasonable force) any specified place,
(c) at such premises inspect and take copies of, any books, records, other documents (including documents stored in non-legible form) or extracts therefrom, which he or she finds in the course of his or her inspection,
(d) remove any such books, records or documents from such premises and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,
(e) carry out, or have carried out, such examinations, tests, inspections and checks of—
(i) the premises,
(ii) any tobacco product or any article or substance used in the manufacture, processing or storage of tobacco products, at the premises, or
(iii) any equipment, machinery or plant at the premises,
as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,
(f) require any person at the premises or the owner or person in charge of the premises and any person employed there to give to him or her such assistance and information and to produce to him or her such books, documents or other records (and in the case of documents or records stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s power or procurement, as he or she may reasonably require for the purposes of his or her functions under this Act,
(g) take samples of any tobacco product or any article or substance used in the manufacture, processing or storage of tobacco products found at the premises for the purposes of analysis and examination,
(h) direct that such tobacco products found at the premises as he or she, upon reasonable grounds, believes contravene a provision of this Act not be sold or distributed or moved from the premises, without his or her consent,
(i) secure for later inspection any premises or part of any premises in which a tobacco product, substance or article is found or ordinarily kept, or records, books or documents are found or ordinarily kept, for such period as may reasonably be necessary for the purposes of his or her functions under this Act, or
(j) take possession of and remove from the premises for examination and analysis any tobacco product or any substance or article used in the manufacture, processing or storage of tobacco products found there, and detain them for such period as he or she considers reasonably necessary for the purposes of his or her functions under this Act.
(5) When performing a function under this Act, an authorised officer may, subject to any warrant under subsection (7), be accompanied by such number of authorised officers or members of the Garda Síochána as he or she considers appropriate.
(6) An authorised officer shall not enter a dwelling, other than—
(a) with the consent of the occupier, or
(b) in accordance with a warrant issued under subsection (7).
(7) On the application of an authorised officer, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that—
(a) a tobacco product or any substance or article used in the manufacture, processing or storage of a tobacco product is to be found in any dwelling, or is being or has been subjected to any process or stored in any dwelling,
(b) books, records or other documents (including documents stored in non-legible form) referred to in subsection (4)(a)(ii) are being stored or kept in any dwelling, or
(c) a dwelling is occupied in whole or in part by an undertaking engaged in any trade, business or activity referred to in subsection (4)(a)(i),
issue a warrant authorising a named authorised officer accompanied by such other authorised officers or members of the Garda Síochána as may be necessary, at any time or times, within one month of the date of issue of the warrant, to enter the dwelling and perform the functions of an authorised officer under paragraphs (c), (d), (e), (f), (g), (h), (i) and (j) of subsection (4).
(8) Any person who obstructs or interferes with an authorised officer or a member of the Garda Síochána in the course of exercising a power conferred on him or her by this Act or a warrant under subsection (7) or impedes the exercise by the officer or member, as the case may be, of such power or fails or refuses to comply with a request or requirement of, or to answer a question asked by, the officer or member pursuant to this section, or in purported compliance with such request or requirement or in answer to such question gives information to the officer or member that he or she knows to be false or misleading in any material respect, shall be guilty of an offence.
(9) Where an authorised officer, upon reasonable grounds, believes that a person has committed an offence under this Act he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.
(10) A person who falsely represents himself or herself to be an authorised officer shall be guilty of an offence.
(11) In this section—
“premises” means any place, ship or other vessel, aircraft, railway wagon or other vehicle, and includes a container used to transport tobacco products or any article or substance used in the manufacture, processing or storage of tobacco products;
“record” includes, in addition to a record in writing—
(a) a disc, tape, sound-track or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,
(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and
(c) a photograph,
and any reference to a copy of a record includes—
(i) in the case of a record to which paragraph (a) applies, a transcript of the sounds or signals embodied therein,
(ii) in the case of a record to which paragraph (b) applies, a still reproduction of the images embodied therein, and
(iii) in the case of a record to which paragraphs (a) and (b) apply, such a transcript together with such a still reproduction.
Indemnification of authorised officers.
49.—(1) Where the Office is satisfied that an authorised officer appointed by it, or any other member of the staff of the Office has discharged his or her duties in relation to the enforcement of the provisions of this Act in a bona fide manner, the Office shall indemnify the authorised officer, or such member of the staff of the Office against all actions or claims howsoever arising in respect of the discharge by him or her of his or her duties.
(2) Where a health board is satisfied that an authorised officer appointed by it has discharged his or her duties in relation to the enforcement of the provisions of this Act in a bona fide manner, the health board shall indemnify the authorised officer against all actions or claims howsoever arising in respect of the discharge by him or her of his or her duties.
Taking of samples by authorised officers.
50.—(1) Where an authorised officer takes a sample of a tobacco product or a sample of any substance or article used in the manufacturing, processing or storage of tobacco products, he or she shall divide the sample into 3 approximately equal parts, and place each part into separate containers which he or she shall forthwith seal and mark in such a manner as to identify it as part of the sample taken by that authorised officer.
(2) Where an authorised officer has complied with subsection (1) he or she shall—
(a) offer one of the sealed containers to the owner or person for the time being in charge or possession of the tobacco product, substance or article from which the sample concerned was taken,
(b) retain one of the said sealed containers, and
(c) forward, or cause to be forwarded, one of the sealed containers to a designated laboratory for the purposes of analysis.
(3) Where a tobacco product, or any substance or article used in the manufacturing, processing or storage of a tobacco product is contained in a container and its division into parts is (for whatever reason) not practicable, an authorised officer, who wishes to take samples of such tobacco product, substance or article for the purposes of analysis, shall take possession of 3 such containers belonging to the same batch, and each such container shall be deemed to be part of a sample for the purposes of subsection (1), and the provisions of subsections (1) and (2) shall apply thereto accordingly.
Laboratories.
51.—(1) The Minister may, for the purposes of this Act designate, by notice in writing published in Iris Oifigiúil—
(a) a laboratory as a laboratory at which samples taken under this Act may be analysed (in this Act referred to as a “designated laboratory”), and
(b) a person as being a person who, or a class of persons the members of which, may, at a designated laboratory, analyse samples taken under this Act, and each such person or member is in this Act referred to as a “designated analyst”.
(2) As soon as practicable after a sample taken by an authorised officer under this Act has been received at a designated laboratory it shall be analysed and the composition, the amount and concentration of its ingredients and any other properties of the sample shall be determined by a designated analyst at that laboratory.
(3) As soon as practicable after compliance with subsection (2) a designated analyst engaged in the analysis of samples at the designated laboratory concerned shall forward the results of the analysis carried out on the sample concerned—
(a) in the case of a sample forwarded or caused to be forwarded under section 50 by an authorised officer appointed by the Office, to the Office, or
(b) in the case of a sample forwarded or caused to be forwarded under that section by an authorised officer appointed by the health board, to the health board concerned.
Evidence in proceedings for an offence.
52.—(1) In proceedings for an offence consisting of a contravention of this Act, a certificate purporting to be signed by a person employed or engaged at a designated laboratory stating the capacity in which that person is so employed or engaged and stating any one or more of the following, namely—
(a) that the person received a sample submitted to the designated laboratory,
(b) that, for such period as is specified in the certificate, the person had in his or her custody a sample so submitted, or
(c) that the person gave to such other person as is specified in the certificate a sample so submitted,
shall unless the contrary is proved be evidence of the matters stated in the certificate.
(2) In proceedings for an offence consisting of a contravention of this Act, a certificate purporting to be signed by a designated analyst stating any one or more of the following, namely—
(a) that he or she carried out any procedure for the purpose of detecting the presence of any substance in the sample so submitted, or
(b) that the sample concerned contained such substance or such amount thereof as is specified in the certificate,
shall unless the contrary is proved be evidence of the matters stated in the certificate.
(3) In proceedings for an offence under this Act the court may, if it considers that the interests of justice so require, direct that oral evidence of the matters stated in a certificate under this section be given and the court may, for the purpose of receiving oral evidence, adjourn the proceedings to a later date.
(4) A certificate under this section shall be in such form as may be prescribed by regulations made by the Minister.
(5) In proceedings for an offence under this Act, a tobacco product, or a package containing a tobacco product, that purports to bear the name of the manufacturer or importer of that product, shall unless the contrary is proved be evidence that the tobacco product was manufactured or imported, as the case may be, by the person concerned.
(6) In proceedings for an offence under this Act a tobacco product, or a package containing a tobacco product, that bears a trademark shall unless the contrary is proved be evidence that the product was manufactured by the person who at the time of the alleged commission of the offence owned that trademark.
(7) In this section “trademark” has the same meaning as it has in the Trade Marks Act, 1996 .
Public Health (Tobacco) (Amendment) Act 2004
Display of signs.
15.—The Principal Act is amended by the substitution of the following section for section 46:
“46.—(1) There shall be displayed at all times at all premises (in part of which the smoking of tobacco products is prohibited) to which members of the public have access, either as of right or with the permission of the occupier of those premises, a sign indicating clearly those parts of the premises in which smoking is permitted and those parts of the premises in which smoking is prohibited, and each such sign shall display the name of the occupier or other person in charge of the premises concerned and the name of the person to whom a complaint may be made by a member of the public for the time being present on the premises who observes another person smoking a tobacco product in a part of the premises in which smoking is prohibited.
(2) There shall be displayed at all times at all premises (in which the smoking of tobacco products is prohibited) to which members of the public have access, either as of right or with the permission of the occupier of those premises, a sign indicating clearly that smoking is prohibited on those premises, and each such sign shall display the name of the occupier or other person in charge of the premises concerned and the name of the person to whom a complaint may be made by a member of the public for the time being present on the premises who observes another person smoking a tobacco product on those premises.
(3) There shall be displayed at all times in a public service vehicle a sign stating that smoking is not permitted in that vehicle.
(4) Where there is a contravention of subsection (1) or (2), the occupier and person in charge of the premises concerned shall each be guilty of an offence.
(5) Where there is a contravention of subsection (3), the owner and person in charge of the public service vehicle concerned shall each be guilty of an offence.
(6) In this section ‘owner’, when used in relation to a mechanically propelled vehicle that is the subject of a hire-purchase agreement, means the person entitled to be in possession of the vehicle under the agreement.”.
Amendment of section 47 of Principal Act.
16.—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.
(2) A person who contravenes subsection (1) shall be guilty of an offence.
(3) Where in relation to a specified place there is a contravention of subsection (1), the occupier, manager and any other person for the time being in charge of the specified place concerned shall each be guilty of an offence.
(4) In proceedings for an offence under this section, it shall be a defence for a person against whom such proceedings are brought to show that he or she made all reasonable efforts to ensure compliance with this section.
(5) The Tobacco (Health Promotion and Protection) Regulations 1995 ( S.I. No. 359 of 1995 ) are revoked.
(6) This section has been enacted for the purposes of reducing the risk to and protecting the health of persons.
(7) This section shall not apply to—
(a) a dwelling,
(b) a prison,
(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),
(e) a bedroom in—
(i) a premises registered under Part III of the Tourist Traffic Act 1939 in a register established and maintained under that Part,
(ii) a premises for the time being specified in a list published, or caused to be published, under section 9 of the Tourist Traffic Act 1957 , or
(iii) any other premises in which a person carries on business, being a business that consists of or includes the provision, in those premises, of sleeping accommodation to members of the public,
(f) a room that, in furtherance of charitable objects, is used solely for the provision of living accommodation,
(g) in premises owned or occupied by a person whose main objects are the provision of education, a room that, in furtherance of those objects (other than objects relating to the provision of primary or secondary education), is used solely for the provision of living accommodation,
(h) a nursing home,
(i) a hospice,
(j) a psychiatric hospital, or
(k) the Central Mental Hospital.
(8) In this section—
‘college’ means a university, institute of technology or other establishment at which third level eduction is provided;
‘health premises’ means any hospital, sanatorium, home, laboratory, clinic, health care centre or similar premises required for the provision of services under the Health Acts 1947 to 2001 provided and maintained by a health board under section 38 of the Act of 1970;
‘hospice’ means an institution—
(a) for the maintenance of, and
(b) in which palliative care is provided to,
persons (a majority of whom are over 18 years of age) who suffer from illnesses or diseases which are active, progressive and advanced in nature and which are no longer curable by means of the administration of existing or available medical treatments, but does not include—
(i) an institution in which a majority of the persons being maintained are being treated for acute illnesses, or
(ii) a maternity home within the meaning of the Registration of Maternity Homes Act 1934 ;
‘nursing home’ has the same meaning as it has in the Health (Nursing Homes) Act 1990 , except that it includes—
(a) an institution to which paragraph (a), (e) or (g) of section 2(1) of that Act applies, and
(b) a premises in which a majority of the persons being maintained are members of a religious order, or priests or clergy of any religion;
‘place of work’ has the same meaning as it has in the Safety, Health and Welfare at Work Act 1989 ;
‘prison’ means a place of custody administered by the Minister for Justice, Equality and Law Reform, and includes—
(a) Saint Patrick’s Institution,
(b) a place provided under section 2 of the Prisons Act 1970 ,
(c) a place specified under section 3 of the Prisons Act 1972 , and
(d) any part of a Garda Síochána station used for the detention of persons;
‘psychiatric hospital’ means—
(a) a mental institution within the meaning of the Mental Treatment Acts 1945 to 1966, or
(b) an approved centre under the Mental Health Act 2001 ;
‘Saint Patrick’s Institution’ has the same meaning as it has in the Criminal Justice Act 1960 ;
‘school’ has the same meaning as it has in the Education Act 1998 ;
‘specified place’ means—
(a) a place of work,
(b) an aircraft, train, ship or other vessel, public service vehicle, or a vehicle used for the carriage of members of the public for reward other than a public service vehicle, insofar as it is a place of work,
(c) a health premises, insofar as it is a place of work,
(d) a hospital that is not a health premises, insofar as it is a place of work,
(e) a school or college, insofar as it is a place of work,
(f) a building to which the public has access, either as of right or with the permission of the owner or occupier of the building, and which belongs to, or is in the occupation of—
(i) the State,
(ii) a Minister of the Government,
(iii) the Commissioners of Public Works in Ireland, or
(iv) a body established by or under an Act of the Oireachtas,
insofar as it is a place of work,
(g) a cinema, theatre, concert hall or other place normally used for indoor public entertainment, insofar as it is a place of work,
(h) a licensed premises, insofar as it is a place of work, or
(i) a registered club, insofar as it is a place of work.”.
Amendment of section 48 of Principal Act.
17.—Section 48 of the Principal Act is amended by the substitution of the following subsections for subsections (4), (5), (6), (7), (8) and (9):
“(4) For the purposes of this Act, an authorised officer may—
(a) subject to subsection (6), enter (if necessary by the use of reasonable force), at all reasonable times, any premises at which he or she has reasonable grounds for believing that—
(i) any trade, business or activity connected with the manufacture, processing, disposal, export, import, distribution, sale, storage, packaging or labelling of a tobacco product is or has been carried on, or
(ii) books, records or other documents (including documents stored in non-legible form) relating to such trade, business or activity are kept,
(b) at all reasonable times enter (if necessary by the use of reasonable force) any specified place,
(c) at such premises inspect and take copies of, any books, records, other documents (including documents stored in non-legible form) or extracts therefrom, which he or she finds in the course of his or her inspection,
(d) remove any such books, records or documents from such premises and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,
(e) carry out, or have carried out, such examinations, tests, inspections and checks of—
(i) the premises,
(ii) any tobacco product or any article or substance used in the manufacture, processing or storage of tobacco products, at the premises, or
(iii) any equipment, machinery or plant at the premises,
as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,
(f) require any person at the premises or the owner or person in charge of the premises and any person employed there to give to him or her such assistance and information and to produce to him or her such books, documents or other records (and in the case of documents or records stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s power or procurement, as he or she may reasonably require for the purposes of his or her functions under this Act,
(g) take samples of any tobacco product or any article or substance used in the manufacture, processing or storage of tobacco products found at the premises for the purposes of analysis and examination,
(h) direct that such tobacco products found at the premises as he or she, upon reasonable grounds, believes contravene a provision of this Act not be sold or distributed or moved from the premises, without his or her consent,
(i) secure for later inspection any premises or part of any premises in which a tobacco product, substance or article is found or ordinarily kept, or records, books or documents are found or ordinarily kept, for such period as may reasonably be necessary for the purposes of his or her functions under this Act, or
(j) take possession of and remove from the premises for examination and analysis any tobacco product or any substance or article used in the manufacture, processing or storage of tobacco products found there, and detain them for such period as he or she considers reasonably necessary for the purposes of his or her functions under this Act.
(5) When performing a function under this Act, an authorised officer may, subject to any warrant under subsection (7), be accompanied by such number of authorised officers or members of the Garda Síochána as he or she considers appropriate.
(6) An authorised officer shall not enter a dwelling, other than—
(a) with the consent of the occupier, or
(b) in accordance with a warrant issued under subsection (7).
(7) Upon the application of an authorised officer, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that—
(a) a tobacco product or any substance or article used in the manufacture, processing or storage of a tobacco product is to be found in any dwelling, or is being or has been subjected to any process or stored in any dwelling,
(b) books, records or other documents (including documents stored in non-legible form) referred to in subsection (4)(a)(ii) are being stored or kept in any dwelling, or
(c) a dwelling is occupied in whole or in part by an undertaking engaged in any trade, business or activity referred to in subsection (4)(a)(i),
issue a warrant authorising a named authorised officer accompanied by such other authorised officers or members of the Garda Síochána as may be necessary, at any time or times, within one month of the date of issue of the warrant, to enter the dwelling and perform the functions of an authorised officer under paragraphs (c), (d), (e), (f), (g), (h), (i) and (j) of subsection (4).
(8) Any person who obstructs or interferes with an authorised officer or a member of the Garda Síochána in the course of exercising a power conferred on him or her by this Act or a warrant under subsection (7) or impedes the exercise by the officer or member, as the case may be, of such power or fails or refuses to comply with a request or requirement of, or to answer a question asked by, the officer or member pursuant to this section, or in purported compliance with such request or requirement or in answer to such question gives information to the officer or member that he or she knows to be false or misleading in any material respect, shall be guilty of an offence.
(9) Where an authorised officer, upon reasonable grounds, believes that a person has committed an offence under this Act, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.
(10) A statement or admission made by a person pursuant to a requirement under subsection (4)(f) shall not be admissible as evidence in proceedings brought against that person for an offence (other than an offence under subsection (8)).”.
Taking of samples by authorised officers.
18.—The Principal Act is amended by the substitution of the following section for section 50:
“50.—(1) Where an authorised officer takes a sample of a tobacco product or a sample of any substance or article used in the manufacturing, processing or storage of tobacco products, he or she shall divide the sample into 3 approximately equal parts, and place each part into separate containers which he or she shall forthwith seal and mark in such a manner as to identify it as part of the sample taken by that authorised officer.
(2) Where an authorised officer has complied with subsection (1) he or she shall—
(a) offer one of the sealed containers to the owner or person for the time being in charge or possession of the tobacco product, substance or article from which the sample concerned was taken,
(b) retain one of the sealed containers, and
(c) forward, or cause to be forwarded, one of the sealed containers to a designated laboratory for the purposes of analysis.
(3) Where a tabacco product, or any substance or article used in the manufacturing, processing or storage of a tobacco product is contained in a container and its division into parts is (for whatever reason) not practicable, an authorised officer, who wishes to take samples of such tobacco product, substance or article for the purposes of analysis, shall take possession of 3 such containers belonging to the same batch, and each such container shall be deemed to be part of a sample for the purposes of subsection (1), and the provisions of subsections (1) and (2) shall apply thereto accordingly.”.