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6 2002

PUBLIC HEALTH (TOBACCO) ACT, 2002

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.

Orders and regulations.

3. —Every order (other than an order under section 1 (2)) and regulation under this Act shall be laid by the Minister before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

Expenses.

4. —The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

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.

Repeals, saver and revocations.

8. —(1) The following enactments are hereby repealed, namely—

(a) the Act of 1978; and

(b) the Act of 1988.

(2) Notwithstanding subsection (1), regulations made under the Act of 1978 or the Act of 1988 that are in force immediately before the commencement of that subsection shall, subject to subsection (3), continue in force after such commencement.

(3) The following regulations are hereby revoked, namely—

(a) the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Regulations, 1991 (S.I. No. 326 of 1991); and

(b) the Tobacco (Health Promotion and Protection) Regulations, 1995 (S.I. No. 359 of 1995).