A Guide to the Smoke-free Environments Act 1990 Requirements of the Smoke-free Environments Act 1990
contents introduction 2 smoke-free workplaces and public areas 3 workplaces schools and early childhood centres transport licensed premises, casinos and gaming venues marae and church halls areas where smoking may be permitted process for complaints control of smoking products 10 advertising retailers retail display chewing tobacco free distribution and rewards co-packaging sale of small quantities vending machines sale and supply of tobacco and herbal smoking products to under 18's herbal smoking products labelling and health messages toy tobacco products annual testing reports and returns offences and fines powers of enforcement officers 19 health sponsorship council 20 01
a guide to the smokefree environments act 1990 The Smoke-free Environments Act 1990, aims to: protect the health of workers and the public from second-hand smoke reduce the harm caused to individuals by their smoking restrict access to smoking products by people under 18 years, and prevent negative influences on young people, and promote a smoke-free/auahi kore lifestyle as being both desirable and the norm. regulate the marketing, advertising and promotion of tobacco products, services or events For more information on smoke-free environments and the background to the Act and the Amendment Act, visit www.smokefreelaw.co.nz The Smoke-free Environments Act 1990 has been significantly amended by the Smoke-free Environments Amendment Act 2003 in relation to the following matters: smoking in workplaces, including certain public enclosed areas smoking in schools and early childhood centres the sale of toy tobacco products the sale and supply of tobacco and herbal smoking products the retail display of smoking products offences and penalties powers of enforcement officers This guide provides a general overview of the Smoke-free Environments Act 1990 and should not be considered as a substitute for your own legal advice. Anyone wanting specific legal advice or legal interpretations of the Smoke-free Environments Act 1990 should consult a lawyer. Copies of the Smoke-free Environments Act 1990 are available from Bennetts bookshop, or visit www.legislation.govt.nz to view the Act and the Smoke-free Environments Amendment Act 2003 online.
smoke-free workplaces and public areas From 10 December 2004 all internal workplaces will be required to be 100 percent smoke-free. A workplace is an internal area occupied by an employer, and usually frequented by employees or volunteers during the course of their employment. This includes areas such as: warehouses, offices, factories and shops hospitality venues (including clubs, bars, restaurants, casinos and gaming machine venues) work cafeterias, smoko rooms, corridors, lifts, lobbies, stairwells, toilets and wash rooms or other shared internal areas schools and early childhood centres, and trains, aircraft, working taxis, passenger lounges and indoor parts of ships. An internal area, in relation to any premises or vehicle, means an area within or on the premises or vehicle that, when all its doors, windows, and other closeable openings are closed, is completely or substantially enclosed by: a ceiling, roof, or similar overhead surface; and walls, sides, screens, or similar surfaces; and those openings. Outdoor areas that are not completely or substantially enclosed, for example, footpaths or open courtyard dining areas, are not required to be smoke-free. There are some places that are excluded from the definition of workplace, and therefore the general restrictions on smoking in workplaces do not apply. These include: motel and hotel rooms, passenger accommodation on ships and trains, and individual staff accommodation on ships and trains individual prison cells an employer s home or private home. These exemptions are all based on the principle that the excluded area is a person s home, either temporarily or permanently. However, this does not prevent the owners or managers of these places from choosing to make their premises 100 percent smoke-free. It will be up to employers and managers to take all reasonably practicable steps to ensure that no person smokes in the workplace. A reasonably practicable step is a step that a reasonable and prudent
person would take in similar circumstances. Failure to do so may result in a fine of up to $400 (individual who is responsible for the premises) or $4,000 (body corporate). smoking prohibited at schools and early childhood centres All schools and early childhood centres are required to be 100 percent smoke-free, inside and out, 24 hours a day, seven days a week for school premises and grounds. This includes all: schools (for example, all primary and secondary schools, kura, integrated schools, private schools and boarding schools), and premises and related facilities used primarily or exclusively as an early childhood centre (for example, kindergartens, kohanga reo, play centres and crèche). There are no exemptions for other activities that take place on the grounds of the school or early childhood centre outside the normal hours of operation. The management of the school or early childhood centre is required to take all reasonably practicable steps to ensure that: no person smokes on the premises (ie, the school grounds and the buildings) at any time, and signs stating that smoking is forbidden at all times are placed at entrances to the premises and buildings. it is the failure to take all reasonably practicable steps by the person in control of the premises to prevent any person smoking that will breach the act. This prohibition includes premises that are sometimes used as, or by an early childhood centre (eg, a crèche at a marae or a church hall), but not used exclusively or primarily for that purpose.
These restrictions do not apply to tertiary institutions. However, the smoke-free provisions will cover universities, polytechnics and other tertiary institutions to the extent that these places fall within the provisions relating to: internal areas of workplaces internal areas of licensed premises, or parts of premises that are used exclusively or primarily as an early childhood centre. A school Board of Trustees or manager of an early childhood centre is liable for a fine of up to $400 (individual manager) or $4,000 (body corporate) if they fail to take all reasonably practicable steps to comply with the above requirements. aircraft Smoking is prohibited on internal flights carrying passengers. Operators of aircraft who allow smoking on an aircraft may be fined up to $400 (individual operator) or $4,000 (body corporate). Under the Civil Aviation Act, individuals who smoke on an internal air flight can be fined up to $2,500. passenger service vehicles, including taxis Smoking is prohibited in passenger service vehicles carrying passengers (ie, buses) except in small passenger service vehicles where the driver and all the passengers agree to allow smoking. A prohibition on smoking in taxis applies at all times the vehicle is being used as a taxi, whether it is carrying passengers or not. This includes travelling between fares and waiting time. The operator of a passenger service vehicle is liable for a fine of up to $400 (individual operator) or $4,000 (body corporate) for failing to comply with the Act.
ships and trains Smoking is prohibited in all internal areas of a ship or a train with the exception of individual passenger cabins, sleeping compartments and cabins occupied by passengers, sole employees or volunteers. The outdoor areas (eg, open deck areas) are not covered by the workplace prohibition on smoking. An employer is liable for a fine of up to $400 (individual operator) or $4,000 (body corporate) for failing to comply with the Act. travel permises Smoking is also prohibited in the following areas within an enclosed travel terminal: a booking area a passenger queuing area a passenger waitingroom, or a passenger lounge. The owner or occupier of these areas is liable for a fine of up to $400 (individual operator) or $4,000 (body corporate) for failing to comply with the Act. licensed premises, restaurants, casinos and gaming machine venues All internal areas of hospitality premises including licensed premises (bars and clubs), restaurants, casinos and gaming machine venues will be required to be smoke-free by 10 December 2004. People will still be able to smoke in open areas of these premises such as beer gardens or decks. However, hospitality venue operators or licensees may disallow smoking in these open areas if they so choose. Owners of hospitality premises and licensed premises must take all reasonably practicable steps to ensure that no person smokes in any part of the premise that is not an open area. Failure to take such steps can result in a fine for the owner, whether an individual (up to $400) or a body corporate (up to $4,000).
marae and church halls The prohibition against smoking does not apply to marae, church halls or other private community premises, except to the extent that these places fall within the provisions relating to: internal areas of workplaces internal areas of licensed premises, or parts of premises that are used exclusively or primarily as an early childhood centre. areas where smoking may be permitted The following are limited exceptions to the prohibition against smoking in the workplace, provided that certain conditions are met: specified work vehicles The provision of specified work vehicles in which smoking is permitted, is not mandatory, but is allowed for. An employer may permit smoking in a work vehicle, provided that: the public does not normally have access to the work vehicle, and the written consent of all regular users of the vehicle is obtained. This means that it will be up to the employer to decide whether they will allow smoking in work vehicles, even if the written consent of all users is obtained. If at any time a person wishes to withdraw their consent, they must do so by giving the employer written notice. smoking rooms in hospitals, rest homes, and residential disability care institutions Hospitals, rest homes, and residential disability care institutions may provide one or more dedicated smoking room(s) for patients or residents of the facility, provided that: the smoking only takes place in the dedicated smoking room(s) a mechanical ventilation system is installed in each dedicated smoking room(s)
the employer has taken all reasonably practicable steps to minimise the escape of smoke, and for each dedicated smoking room, an equivalent smoke-free room is made available. No person other than a patient or resident will be able to smoke in a dedicated smoking room. All employees and visitors must go outside to smoke. smoking in prison cells Although prison cells are specifically excluded from the definition of a workplace, prisons are still required to have a policy on smoking that addresses the issue of allowing inmates to smoke in their cells. Prisons are required to have a written policy on smoking that: addresses the issue of inmates who wish to smoke in their cells as far as is reasonably practicable, protects those employees or inmates who don t smoke, or don t wish to smoke in the prison, from smoke arising as a result of smoking in prison cells, unless it is not reasonably practicable, protects an inmate who does not wish to smoke in their cell from sharing with an inmate who does wish to smoke in it, and includes a complaints procedure. The superintendent of the prison must take all reasonably practicable steps to ensure that the policy is complied with, and that the policy incorporates the above issues. Notwithstanding that prisoners may be allowed to smoke in their own cells, this does not extend to allowing prisoners to smoke in any other area of the prison.
complaints relating to workplace smoking The Act sets out the process for complaints relating to workplace smoking. Complaints relating to workplace smoking can be made to the employer of the workplace, or the Director-General of Health, and must specify the particulars of the complaint. The employer has 20 working days to investigate if a breach of the Act has occurred, and to try to resolve the complaint. If the complaint was received by the Director- General, it will be referred to the employer in the first instance. Where the breach is on the part of the employer, the employer shall try to settle the complaint, or give an assurance that satisfies the complainant that there will be no repetition of the cause of the complaint. Where the breach is on the part of an employee or volunteer, the employer should obtain from the employee or volunteer an assurance that there will be no repetition of the cause of the complaint. The representatives of the employees in the workplace are entitled to be present at any meeting called by the employer for the purpose of resolving the complaint and avoiding future cause for complaint. If within 40 working days after receiving the complaint the employer is unable to investigate it and resolve it by agreement, the employer must refer it, in writing, to the Director-General. Where employment relationship problems arise in respect of smoking in the workplace, employers and employees will deal with those in terms of the Employment Relations Act. 09
control of smoking products 10 advertising of tobacco products Tobacco product advertising, or the use of tobacco trademarks in relation to sponsored events, have been prohibited in New Zealand since December 1990. A tobacco product advertisement includes any words, whether written, printed, or spoken, including on film or other medium, broadcast or telecast, and any pictorial representation, design, or device, used to encourage the use or notify the availability or promote the sale of any tobacco product or to promote smoking behaviour. There are some exceptions to the advertising and sponsorship prohibitions. A notice identifying the availability and price of tobacco products may be displayed inside a retailer s business or on a vending machine provided that: the notice is no bigger than the size of a business card (90 mm x 55 mm) the background of the notice is white, and the print is black, and the notice contains only the following information: the name of the tobacco product any logo or design usually associated with the tobacco product a picture of the tobacco product package the quantity in which the tobacco product is sold the price. The combined area of all notices that are displayed inside a retailer s place of business or on the exterior of a vending machine must not exceed, in total, 21 cm x 29.7 cm. A retailer may display their trade name outside their place of business, even though the name refers to the availability of tobacco products, provided that the name does not include a tobacco product trademark or the company name of a tobacco product manufacturer.
restrictions on the retail display of tobacco products From 10 December 2004 the display of tobacco products at each point of sale, will be limited to a maximum of 100 packages and 40 cartons, unless the retailer s place of business is a tobacconist s shop. A point of sale is a till or checkout where tobacco products may be sold. A tobacconist s shop is a place that is a specialist retail seller of tobacco products, with at least 60 percent of its gross revenue being earned from the sale of tobacco products. Packages and cartons over the 100-package/40-carton limitation, or over the maximum size dimensions, may be stored under the counter or behind screening, but must not be visible to the public. There are further restrictions that apply to all retailers of tobacco products. These include: no tobacco product that is sold inside the premises being visible from the outside not more than two tobacco packages and two tobacco cartons of the same kind being exposed for sale at any point of sale limitations on the size of tobacco packages and cartons all tobacco products are to be at least one metre away from children s products (including toys and confectionery) unless, because of the size of the premises, it is not reasonably practicable to do so no tobacco product being exposed for sale on any counter top or similar surface, and the display of a Smoking Kills sign at each point of sale where tobacco products are exposed for sale. 11 There are a number of prescriptive requirements relating to the wording and layout of the Smoking Kills sign. These requirements are detailed in section 23A(2)(k) of the Smoke-free Environments Act 1990.
12 tobacco product not to be labelled as suitable for chewing A tobacco product cannot be advertised, labelled or sold as suitable for chewing or other oral use (other than smoking). free distribution and rewards prohibited Tobacco products are not to be distributed or supplied free of charge, or at a reduced rate, other than a normal trade discount. This includes where some other item is supplied with the tobacco product, free or at a reduced charge. It is a defence to a charge of distributing or supplying any tobacco product free of charge or at a reduced rate, if the person charged is able to prove that it was a normal trade discount. Those buying tobacco products cannot be offered gifts, cash rebates or the right to participate in any contest or game. co-packaging of tobacco products with other products prohibited From 10 December 2004 tobacco products cannot be packaged or sold with other products such as lighters, CDs and other items, at a single price. sale of tobacco products in small quantities The Act prohibits the sale of tobacco products in small quantities below the following limits: loose cigarettes (including cigarillos) in amounts of 20 or less cigarette packages that contain less than 20 cigarettes loose tobacco in packages that contain less than 30 grams of loose tobacco. Cigars are excluded from the above restrictions, and may therefore be sold individually.
restrictions on the location and use of automatic vending machines From December 2004 access to vending machines will be restricted to staff on the premises. Members of the public (18 years and over) may buy cigarettes from the vending machine by asking an employee, who may use a remote controlled device. From December 2004 vending machines must comply with any requirements for health messages to be displayed, even though the public may not have visual access to the machine. prohibition relating to the sale of tobacco and herbal smoking products to under 18 year-olds The sale of tobacco and herbal smoking products to persons under 18 years is prohibited. All retailers of tobacco or herbal smoking products must display a notice that states that the sale of tobacco and herbal smoking products to people under the age of 18 is prohibited. The Act provides a defence for retailers accused of underage selling if they can prove they sighted an evidence of age document with photo identification indicating that the buyer was 18 years or older. Photo identification is based on the same definition as under the Sale of Liquor Act 1989 (eg, passport, HANZ card or driver s licence). It is not a defence that the under-18 person was buying the tobacco or herbal smoking product on behalf of someone aged 18 or over. 13
14 repeat offenders may be ordered not to sell tobacco products A person who has been convicted of selling tobacco products to a person under 18 at least twice within a two-year period may find themselves subject to a Court-ordered prohibition. The prohibition order prevents a person (or the shop where the offence occured) from selling tobacco products to anyone for up to three months. A prohibition order may be made in addition to any other sentence (ie, a fine) that the court is able to impose. It will be up to the Court to decide whether or not to impose a prohibition order in each case. A person who fails to comply with a prohibition order may be fined up to $4,000 (individual) or $10,000 (body corporate). prohibition relating to the supply of tobacco and herbal smoking products to under 18 year-olds The supply of tobacco or herbal smoking products to under 18 year-olds in a public place is prohibited. The prohibition covers not only retailers, but also includes friends, parents and relatives. It is a defence to a charge of under-age supply if the person charged with supply proves that they sighted an official photo identification (eg, passport, HANZ card or driver s licence) showing that the person supplied was at least 18 years old. It is not a defence that the under-18 person being supplied was obtaining the tobacco or herbal smoking product on behalf of someone aged 18 or over.
herbal smoking products Many of the restrictions that apply to tobacco products such as labelling and health messages, under-18 and vending machine supply, now also apply to herbal smoking products. Herbal smoking products contain no tobacco, but contain vegetable matter and are intended to be smoked. regulations The regulations made pursuant to the Act contain some of the more prescriptive detail in relation to labelling, packaging, constituents, signage and tobacco returns. labelling and health messages for tobacco and herbal smoking products Future regulations on tobacco and herbal smoking products, packaging and labelling may contain some or all of the following information: a message relating to the health effects of smoking a list of the harmful constituents and their respective quantities in the product and the smoke pictorial health warnings, and leaflets inside the packages containing information on: the health effects, and the harmful constituents (including additives) and their respective quantities in the product and the smoke. 15
16 toy tobacco products The sale of a toy tobacco product to a person under the age of 18 is prohibited. A toy tobacco product is an object that: looks like a tobacco product (eg, cigarettes or cigars) or a smoker s pipe can be used to simulate smoking, but cannot be smoked is not confectionery, and has a primary purpose other than to help people stop smoking. It is a defence to a charge of selling a toy tobacco product to a person under 18 if the person charged proves that they: took reasonable precautions and exercised due diligence to prevent the sale of a toy tobacco product to a person under 18 years. A person will have taken reasonable precautions and exercised due diligence in this respect if they sighted an evidence of age document which states that the person to whom they sell the toy tobacco product is 18 years, or older. It is not a defence that the under-18 person was buying the toy tobacco product on behalf of someone aged 18 or over. annual testing for constituents In addition to the requirements for tobacco products, future regulations may require manufacturers and importers to include annual testing of herbal smoking products. The Director-General of Health may, by notice in writing, require that further testing be undertaken.
returns and reports By 31 January each year all manufacturers and importers of tobacco products are required to file a return for individual products, or product classes. The return must show: by class, brand or variant of brand, the weight of tobacco and each additive used in the manufacture of tobacco products sold in the previous year the quantity and recommended price of each brand and variant of brand of tobacco product sold in the previous year, and a report stating the results of the annual testing for constituents for both tobacco and herbal smoking products. The Director-General of Health must take all practicable steps to publish the returns and reports on a web site, and may make the information available in any other manner. 17
18 offences in respect of tobacco products The following table outlines some of the possible offences and penalties in respect of tobacco and herbal smoking products: offence penalty Under-18 sale of a tobacco or herbal Fine of up to $2,000 smoking product. Under-18 supply of a tobacco or herbal Fine of up to $2,000 smoking product. Under-18 sale of a toy tobacco product. Fine of up to $2,000 Display of tobacco products contrary Fine of up to $10,000 to product display restrictions. Co-packaging of tobacco and Fine of up to $10,000 (manufacturer, other products. importer or distributor) or $5,000 (in any other case) Public access to a vending (tobacco or Fine of up to $2,000 herbal smoking products) machine. Failure to comply with a court order for repeat offences. Fine of up to $10,000 (body corporate) or $4,000 (in any other case) Selling or offering to sell a tobacco or Fine of up to $10,000 (manufacturer, herbal smoking product that fails to importer or distributor) or $4,000 comply with the labelling and health (in any other case) messages requirements. Distribution free of charge or at Fine of up to $50,000 a reduced rate. Offering a reward. Fine of up to $10,000 (body corporate) or $5,000 (individual) Failure to conduct annual testing. Fine of up to $10,000 Failure to submit returns and reports. Fine of up to $10,000
powers of enforcement officers Enforcement officers have limited powers to assist them with carrying out their statutory duties. These include the power to: enter and inspect premises at a reasonable time take photographs or videos take air samples inspect advertising or display material, and seek identifying information from any person when a sale to a minor has occurred. Enforcement officers are not permitted to enter private houses, unless they have the consent of the occupier, or if they have the power of entry under other legislation. The Police may accompany an enforcement officer in the execution of the enforcement officer s powers of entry and inspection. 19
health sponsorship council 20 The Health Sponsorship Council ( the Council ) was established by the Smoke-free Environments Act 1990 to promote health and to encourage healthy lifestyles, whether through the provision of sponsorship or otherwise. For information on the structure and the activities of the Council, visit www.healthsponsorship.co.nz
resources Pamphlets and guides relating to specific changes to the Act are available. Contact the Public Health Service at your local District Health Board, visit www.healthed.govt.nz or www.smokefreelaw.co.nz. 21
disclaimer This information is intended to provide general information on open areas and should not be construed as legal advice. The Ministry of Health does not accept any responsibility or liability whatsoever whether in contract, tort, equity or otherwise for any action taken as a result of reading; or reliance placed on the Ministry of Health because of having read any part, or all of this information. In instances where breaches of the Act are alleged or where prosecutions may be considered it would be inappropriate for the Ministry of Health to provide specific legal interpretations relating to particular situations. For further information on tobacco, health and the Smoke-free Environments Act 1990 contact: www.smokefreelaw.co.nz www.moh.govt.nz www.healthed.govt.nz Public Health Service at your local District Health Board Public Health Service contact details: new zealand november 2004 code 1608