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CLAUSE NOTES
Public Health Amendment Bill 2010
Clause 1 Short Title
Clause 2 Commencement
The Bill will commence on 2 February 2011, to coincide with the
existing date upon which the tobacco display ban commences. If
the Bill is not dealt with until 2011, then it will commence on
Royal Assent.
Clause 3 Principal Act
The Bill amends the Public Health Act 1997.
Clause 4 Interpretation
This clause removes the definition of `sales unit' and `service
area' which are now referenced in the specific sections in which
they appear.
Clause 5 Display of tobacco advertisements
This clause removes subsection 70(3) as these requirements
reappear in the Bill in relation to the relevant premises to which
they apply.
Clause 6 Display restrictions on specialist tobacconist premises
Presently the Act provides that after 1 February 2011, there is a
ban on the display of tobacco and tobacco products in premises
other than specialist tobacconist premises. As such, there are
differing requirements for specialist tobacconist premises and
other retail premises. The Bill deals separately with these two
groups, so that the obligations attaching to each are clear.
This clause inserts section 72 into the Act and sets out the
requirements that attach to specialist tobacconist premises.
Page 1 of 4
In relation to section 72:
Subsections (1)-(6) reflect the existing display requirements
relating to specialist tobacconist premises (presently
contained in subsection 70(3)(a) and section 72A of the Act).
Subsection (7) clarifies that it is not a contravention of the
Act for the display of tobacco or tobacco products to occur
outside the single area, outside the sales unit, or in relation
to more than one product line, if that display is fleeting and
incidental to the activities listed (eg restocking, selling,
stocktaking, cleaning and repairing, taking off-site or packing
away a delivery). The Act does not currently give any
guidance as to the use of the term `display', leaving it open
to a broad interpretation. This new subsection ensures that
display in this context does not mean that a specialist
tobacconist is in breach of the Act when engaging in these
activities, which are `part and parcel' of running a retail
business.
Subsection (8):
o defines `concealed storage facility' which is introduced in
subsection (7);
o excludes from the use of the term `display' the fleeting
incidental display of a personal quantity of tobacco and
smoking accoutrements by a person working at specialist
tobacconist premises, ensuring that such a person
engaging in this activity is not contravening the Act;
o defines what a `personal quantity' of tobacco is;
o defines a `plain sales unit' which captures the existing
requirements of subsection 72A(3) of the Act;
o reintroduces the definition of `sales unit', clarifying that a
sales unit includes a tobacco product vending machine;
o reintroduces the definition of `service area';
o introduces the term `smoking accoutrement' which is
referred to the `display' definition;
o reintroduces the definition of `service area'; and
o enhances the usual definition of `tobacco product' by
including cartons (these provisions are presently dealt
with in subsections 72A(8) and (9) of the Act, however
the provisions are unclear and as such cartons will be
treated as regular tobacco products).
Page 2 of 4
Clause 7 Display and holding restrictions on other premises
where tobacco or tobacco product is sold
This clause repeals the existing section 72A and substitutes it
with a new one that sets out the requirements that attach to
premises where tobacco or tobacco products are sold (other
than specialist tobacconist premises).
In relation to the new section 72A:
Subsection (2) provides that tobacco or tobacco products
cannot be held on the premises unless in a plain sales unit or
concealed storage facility. A `concealed storage facility' is
not currently referenced in the Act, but has been introduced
here to ensure that stock not kept in a sales unit in the
service area can still be held on the premises without there
being a contravention of the Act.
Subsection (3) clarifies that it is not a contravention of the
Act for tobacco or tobacco product to be outside of a plain
sales unit or concealed storage facility if the reason for that
is due to the fleeting and incidental handling of the tobacco
or tobacco product as a consequence of engaging in the
activities listed. These activities are the same activities as
those permitted by specialist tobacconists.
Subsection (4) reinstates the display ban, clarifying that it
applies to premises from which tobacco or tobacco
products are sold.
Subsection (5) clarifies that it is not a contravention of the
Act for the display of tobacco or tobacco products to occur
if that display is fleeting and incidental to the activities listed
in subsection (3) (eg restocking, selling, stocktaking, cleaning
and repairing, taking off-site, packing away a delivery, or
personal use), and if the area of tobacco or tobacco
products so displayed does not exceed 1 square metre.
Subsections (6) (8) reflect the existing requirements at
subsections 72A(3)(b), 72A(7)(a), 72A(1) and 70(3)(b) of the
Act.
Page 3 of 4
Subsection (9) provides the definitions attaching to the new
section 72A. Those that have a different meaning to that
which applies to specialist tobacconists in section 72 are:
o `display' - in this context it does not include the incidental
display of a personal quantity of tobacco and smoking
accoutrements by a customer or prospective customer
of the retailer, ensuring that such a person engaging in
this activity is not contravening the Act (note, the fleeting
and incidental display by a person working at the retail
premises is permitted by virtue of subsection (3)(g) and
section (5));
o `hold' means hold for sale;
`plain sales unit' - in this context it not only captures the
existing requirements of subsection 72A(3) of the Act, but
also captures those restrictions at the existing 72A(7) that
haven't already been covered (these restrictions still apply to
specialist tobacconists but the manner in which the
provisions are structured is slightly different).
Clause 8 Repeal of Act
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