Smoke Free 10 years on - Paul Hickey

Challenges in Enforcement of Tobacco Control Legislation

Paul Hickey

National Tobacco Control Office

The Law/MOU

Legal Challenges

Specific court casesSection 47 – smokefreeSection 45 – sales to minorsSection 36 – promotion

Issues “Dark Market” Promotion New/“Novel” tob. product Penalties/ removals

Overview - Challenges in TC Enforcement

Memorandum of Understanding

Health Services Executive and Health and Safety Authority

Prevention and control of exposure of ETS

Section 47 PHTA Health safety welfare at work at

1989 Avoid duplication of inspection

Smokefree – PHTA Section 4716.—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.

(7) This section shall not apply to— (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),

Legal challenge to Tobacco Act

Constitutional challenge to the PHTA 2002 lead to the Public Health Tobacco (Amendment) Act 2004 and commencement of Sections 46 and 47 (Smokefree)

Tobacco industries challenge to the Public Health Tobacco Acts

Discontinued on the doorsteps of the court

Full Legal costs awarded to the State

Allowed for commencement of the legislation including those sections providing for a total ban on point of sale advertising

Smokefree Workplace Implementation

Active enforcement by Environmental Health Officers under the National Inspection Programme in the last 10 years has played a hugely important role in bedding in the smoke-free workplace legislation

At the introduction of the ban 35,000+ inspections carried out annually by EHOs

98% compliance

266 cases 275 convictions

Smokefree Prosecutions in last 10 years

* To March 2014

Prosecutions 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 * 2014

Total

total No. Cases 13 39 35 43 24 25 13 21 17 23 13 266

total no. Convictions 16 45 37 47 19 19 11 22 13 32 12 273

total no. Probation Act 2 3 4 2 6 3 2 5 4 13 1 45

total no. Dismission/Struck Out 0 1 4 2 2 6 5 4 7 7 3 41

total no. of cases dismissed 0 1 4 2 2 6 3 1 1 1 1 22

no. related to Licensed Premises 12 32 31 38 17 18 11 17 17 23 13 229

Fibber Magees Bar, Eyre Square, Galway

Fibber Magee’s – Case Study Major challenge / Potential to undermine success Orchestrated – Other pubs involved & potential to

mushroom Inspectors confronted with PHOTOGRAHER & FILM

CREW !!! (TV footage used in evidence) Night inspections – large numbers smoking Legal proceedings

Notice of intent to seek HC Injunction Separate District Court cases Objection to

licences Involved preparation of sworn statements by

EHO’s

What are the Challenges/Difficulties which arise in Enforcement?

Smoking Areas 85% of cases relate to pubs, night clubs or hotels In recent years > 50% of cases relate to smoking

areas Exemptions set out in Section 47 No provision for approval of exempted areas /

smoking areas Thus HSE/EHOs do not have legal authority to give

approval Interpretation a matter for the Courts 3 High Court Judgements that have clarified &

restricted the exemptions in Section 47(c)&(d) with negative consequences for some structures.

Freshwall (2005)

Brookshore Ltd (2009)

Johnston Taverns (2012)

In Summary

The closer a structure is to the limit of compliance the more likely it will be deemed non-compliant by the court.

Smoking areas in licensed premises in Environmental Health Service Business Plan for 2014

Enforcement Priority

Sales to Minors – PHTA Section 45

It is an offence for a person to sell a tobacco product a person who has not attained the age of 18 years.

Defense.....to prove -made all reasonable efforts that the person

has attained the age of 18 years, -age card provided

Court may have regard to a person’s physical appearance or attributes for the purpose of determining whether that person is under the age of 18 years or was

Prosecutions Section 45

Year Cases Convictions Probation Act

Dismissed/Struck Out

2013 17 16 5 3

2012 5 2 2 6

2011 1 1

2010 12 8 1 6

2009 8 6 1 4

2008 23 19 1 4

Total 63 54 10 23

High Court - Case Stated Murphy V HSE

Consultative case stated arising out of the prosecution under the Health (Miscellaneous Provisions) Act 2001.

The District Court Judge referred the case to the High Court regarding a number of points of law including whether the use of minors to detect the illegal sale of tobacco to underage customers constitutes entrapment and was contrary to public policy.

High Court Found:

Not entrapment.

Not contrary to public policy.

Reinforces the Test Purchase Protocol.

“Test purchase was necessary for the protection of children themselves”, subject to the protocol

Promotion and Sponsorship -Section 36 PHTA

Section 36(2) Offence for a person to give financial or other assistance,

or cause financial or other assistance to be given, to or for the benefit of a person, or for or in relation to an event or activity, in consideration of the—

(a) use, display or advertising by the person, or at the event

or activity concerned,(b) association with the person, event or activity, or(c) promotion,

of a tobacco product, the name of a tobacco manufacturer or

importer, the name of a brand of tobacco product or a trademark,emblem, marketing image or logo used in the marketing of a tobacco product.

Inspection of Tobacco Companies

As part of NIP Inspections carried out to tobacco companies

All doing various promotional activity of some type

Pocket a packet promotion Summons served in July 2010, P. J. Carroll Ltd and John

Player in relation to Section 36 The case was heard over three days on the March 2011

with senior counsel retained by both parties. Having considered the evidence the District Justice

found in the defendants favour Appeal by way of case stated

Principal Findings of Judge Kearns in the High Court:

The Pall Mall “Pocket a Packet Mystery Shopper ” was a promotion within the ordinary and natural meaning of that term.

The addition of the word ‘promotion’ in Section 36 may simply be seen as widening the range of activities coming under the prohibition.

‘Financial Assistance’ in Section 36 is not a term of art although the words are ambiguous. If it was intended to prohibit ‘any kind of payment’ the Oireachtas would have done so expressly.

The words ‘financial assistance’ do not sit logically or sensibly with a once off prize or reward of a small sum, in this case €30. Financial Assistance is a question of degree. ‘Financial Assistance’ does not include a gift, prize or reward so as to include a monetary payment or cash voucher redeemable for money or value worth from the scope of the definition.

‘Financial Assistance’ must assist a particular event or activity

Innovation to increase Sales

1st Gemini pack/Lucky strike B&H slide Ice Capsule Only place left to advertise is on or

in packs Leaflet inside pack

Combi Packs

Penalties and Removals

Person convicted under the PHTA subject to fine up to €4,000 and or 3 months in prison

Upon conviction a registered person shall be removed from the register for a period of up to 3 months

Fines ranging from €50 – €4,000

Removals from the Retail Register range from 1 hour ! to 3 months the maximum suspension

Thank You

Thank You