DRAFT FOR CONSULTATION Member s Bill Explanatory note General policy statement Smoking rates and tobacco consumption have declined in recent decades. However, 4 500 to 5 000 New Zealanders still die prematurely each year from a smoking-related illness. For smokers, e-cigarettes are significantly less harmful than tobacco (estimated 95% less harmful). E-cigarettes may also be effective for smoking cessation, but the evidence on this is not fully settled. E-cigarettes have been available overseas and in the United Kingdom for over 10 years. There is no evidence that they provide a gateway for smokers to cigarettes or that non-smokers take up e-cigarettes. Currently, the sale and supply of nicotine e-cigarettes in New Zealand is unlawful, while smoked tobacco, which is considerably more harmful for users, can be sold legally. Users obtain nicotine e-cigarettes through importation and illegal local sales. This Bill regulates e-cigarettes as follows: it prohibits the sale, and supply in public places, of e-cigarettes to people under the age of 18 years, to protect young people who do not smoke from any potential long-term risks, including nicotine addiction (this does not prevent whānau from providing an e-cigarette to young people of any age who have started smoking or who are regular smokers): it restricts the use of vending machines to R18 settings to support an age limit of 18 years or over: it limits advertising and promotion to point-of-sale display for all retailers and broader in-store display, free samples, discounts, etc, in R18 retail settings: it prohibits vaping in legislated smokefree areas to help preserve cultural norms around the undesirability of smoking.
2 Explanatory note Clause 1 is the Title clause. Clause by clause analysis Clause 2 is the commencement clause. It provides that the Bill comes into force 6 months after the date on which it receives the Royal assent. Clause 3 provides that the Bill amends the Smoke-free Environments Act 1990, the principal Act. Part 1 Regulation of electronic cigarettes Clause 4 inserts new Part 2AA, which regulates the sale and supply of electronic cigarettes, provides for product regulation of electronic cigarettes, regulates promotion, advertising, and sponsorship relating to electronic cigarettes, and establishes offences for contravention of provisions in Part 2AA. Part 2 Related amendments Clause 5 amends section 2 by inserting new definitions of electronic cigarette, electronic cigarette advertisement, electronic cigarette package, and use of an electronic cigarette in support of new Part 2AA. It also amends the current definitions of automatic vending machine and to smoke, and replaces the definition of tobacco product. Clause 6 amends section 3A to reflect new Part 2AA. Clause 7 amends section 39 to include electronic cigarettes in the matters for which regulations may be made. Clause 8 amends section 41A to include electronic cigarettes in the class of products in respect of which powers of entry and inspection are provided. Clause 9 amends section 41B to apply the requirement to give identifying information in the situation where there are reasonable grounds to believe there is a breach of sale or supply of electronic cigarette provisions. Clause 10 amends section 41C to reflect the amendments made to section 41B.
Hon Nicky Wagner Member s Bill Contents Page 1 Title 2 2 Commencement 2 3 Principal Act 2 Part 1 Regulation of electronic cigarettes 4 New Part 2AA inserted 2 Part 2AA Regulation of electronic cigarettes Sale and supply of electronic cigarettes 41AB Sale, and sellers arranging or effecting delivery, of electronic cigarettes to people under 18 prohibited 41AC Supplying electronic cigarettes to people under 18 prohibited 41AD Restriction on use of automatic vending machines for electronic cigarettes Product regulation of electronic cigarettes 41AE Limits on harmful constituents in electronic cigarettes 4 Promotion and advertising of electronic cigarettes 41AF Advertising of electronic cigarettes 5 41AG Permitted advertisement of electronic cigarettes 5 41AH Display of electronic cigarettes 6 41AI Sale of electronic cigarettes with other products restricted 6 3 3 4 1
cl 1 41AJ Free distribution and rewards restricted 6 41AK Sponsorship provisions Sponsorship provisions in Part 2 apply to electronic cigarettes Offences 41AL Offences in respect of electronic cigarettes 8 Part 2 Related amendments 5 Section 2 amended (Interpretation) 10 6 Section 3A amended (Purposes of this Act) 11 7 Section 39 amended (Regulations) 11 8 Section 41A amended (Powers of entry and inspection) 11 9 Section 41B amended (Requirement to give identifying 11 information) 10 Section 41C amended (Purposes for which powers may be used) 11 7 The Parliament of New Zealand enacts as follows: 1 Title This Act is the Cigarettes) Amendment Act 2018. 2 Commencement This Act comes into force 6 months after the date on which it receives the Royal assent. 3 Principal Act This Act amends the Smoke-free Environments Act 1990 (the principal Act). 4 New Part 2AA inserted After section 41AA, insert: Part 1 Regulation of electronic cigarettes 2
Part 1 cl 4 Part 2AA Regulation of electronic cigarettes Sale and supply of electronic cigarettes 41AB Sale, and sellers arranging or effecting delivery, of electronic cigarettes to people under 18 prohibited (1) No person may sell an electronic cigarette, or having sold it to a person of any age deliver it or arrange for it to be delivered, to a person younger than 18 years. (2) It is a defence to a charge in respect of a contravention of subsection (1) if the person charged proves that the contravention occurred without his or her knowledge and that he or she took reasonable precautions and exercised due diligence to prevent the contravention of that subsection. (3) For the purposes of subsection (2), a person charged in respect of a contravention of subsection (1) who proves that he or she sighted an evidence of age document of the person to whom the product concerned was sold, indicating that the person was of or over the age of 18 years, proves that the contravention occurred without his or her knowledge and that he or she took reasonable precautions and exercised due diligence to prevent the contravention of that subsection. (4) Subsection (3) does not affect the generality of subsection (2). (5) It is not a defence to a charge in respect of a contravention of subsection (1) that the person to whom the product concerned was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years; or that the person charged believed on reasonable grounds that the person to whom the product concerned was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years. 41AC Supplying electronic cigarettes to people under 18 prohibited (1) No person may, in a public place (within the meaning of section 2 of the Summary Offences Act 1981), supply an electronic cigarette to a person younger than 18 years; or supply an electronic cigarette to a person with the intention that it be supplied (directly or indirectly) to a person younger than 18 years. (2) It is a defence to a charge in respect of a contravention of subsection (1) if the person charged proves that he or she had no reasonable grounds to suspect that the person supplied was younger than 18 years. 3
Part 1 cl 4 (3) For the purposes of subsection (2), a person charged in respect of a contravention of subsection (1) who proves that he or she sighted an evidence of age document of the person to whom the electronic cigarette was supplied, indicating that the person was of or over the age of 18 years, proves that he or she had no reasonable grounds to suspect that the person supplied was younger than 18 years. (4) It is not a defence to a charge in respect of a contravention of subsection (1) that the person younger than 18 years was acquiring the electronic cigarette for or on behalf of, or as agent for, a person of or over the age of 18 years; or that the person charged believed on reasonable grounds that the person younger than 18 years was acquiring the product concerned for or on behalf of, or as agent for, a person of or over the age of 18 years. (5) Subsection (1) applies irrespective of any liability that may attach to a person who has sold the electronic cigarette to any other person. 41AD Restriction on use of automatic vending machines for electronic cigarettes (1) No person may permit an automatic vending machine that dispenses or is capable of dispensing electronic cigarettes to be located in a place to which members of the public have access; or permit an electronic cigarette to be sold by way of an automatic vending machine in a place to which members of the public have access. (2) Subsection (1) does not apply to an automatic vending machine if no individual sale can occur unless the machine is activated by the person who would otherwise be in breach of that subsection (or an employee or agent of that person); and the device used to activate the machine is permanently located in a place from which any person using it can see the person to whom the sale is to be made. (3) For the purposes of this Act, a person who activates an automatic vending machine so that a sale of an electronic cigarette to another person occurs is a party to the sale of that product to the other person. Product regulation of electronic cigarettes 41AE Limits on harmful constituents in electronic cigarettes (1) No manufacturer or importer may offer for sale or export any electronic cigarette that 4
Part 1 cl 4 contains, or generates in its vapour, a harmful constituent prohibited by regulations made under this Part; or contains, or generates in its vapour, harmful constituents in excess of the limits prescribed by regulations made under this Part, as determined in accordance with any tests so prescribed. (2) In subsection (1), harmful constituent means a substance declared by the regulations to be a harmful constituent for the purposes of that subsection. Promotion and advertising of electronic cigarettes 41AF Advertising of electronic cigarettes (1) No person may, unless authorised by this section or section 41AG, publish in New Zealand, or arrange for any other person to publish in New Zealand, an electronic cigarette advertisement (as defined in section 2(1)). (2) Nothing in subsection (1) applies to any of the following: (c) any advertisement included in any book, magazine, or newspaper printed outside New Zealand, or in any radio or television transmission originating outside New Zealand, or in any film or video recording made outside New Zealand, unless (i) (ii) (iii) the main purpose of the book, magazine, newspaper, transmission, film, or video recording is the promotion of the use of electronic cigarettes; or the book, magazine, newspaper, film, or video recording is intended for sale, distribution, or exhibition primarily in New Zealand; or in the case of an advertisement in any radio or television transmission, the advertisement is targeted primarily at a New Zealand audience: the publication by an electronic cigarette manufacturer of an electronic cigarette advertisement in a magazine that is intended for distribution only to employees of the manufacturer: the exhibition, in any museum or art gallery, of any work or artifact. 41AG Permitted advertisement of electronic cigarettes (1) A person who offers electronic cigarettes for sale (whether by retail or wholesale) may advertise electronic cigarettes at the point of sale (including an Internet website). (2) A person who offers electronic cigarettes for sale (whether by retail or wholesale) may advertise electronic cigarettes inside the person s place of business, if entry into that place of business is restricted to persons of or over the age of 18 years. 5
Part 1 cl 4 (3) A person who offers electronic cigarettes for sale (whether by retail or wholesale) by way of an automatic vending machine may use that automatic vending machine to advertise electronic cigarettes. 41AH Display of electronic cigarettes (1) A person who offers electronic cigarettes for sale (whether by retail or wholesale) must not allow any part of an electronic cigarette or an electronic cigarette package to be for any reason visible, except in the following circumstances: (c) electronic cigarettes and electronic cigarette packages may be displayed at the point of sale: electronic cigarettes and electronic cigarette packages may be displayed inside the person s place of business, if entry into that place of business is restricted to persons of or over the age of 18 years: electronic cigarettes and electronic cigarette packages may be displayed from inside an automatic vending machine that is used to offer electronic cigarettes for sale. (2) The prohibition in subsection (1) does not apply to an electronic cigarette or an electronic cigarette package that is visible only to the extent that is necessary for it to be delivered to the person at the place or, as the case requires, to the machine; or to its purchaser at or from the place or, as the case requires, from the machine. 41AI Sale of electronic cigarettes with other products restricted (1) This subsection applies to an electronic cigarette if it is packed together with a product that is not an electronic cigarette; or distributed or supplied, together with a product that is not an electronic cigarette, at a single price. (2) No manufacturer, distributor, importer, or retailer of electronic cigarettes may distribute an electronic cigarette to which subsection (1) applies to a person younger than 18 years; or supply an electronic cigarette to which subsection (1) applies to another person for later distribution to a person younger than 18 years. 41AJ Free distribution and rewards restricted (1) No manufacturer, distributor, importer, or retailer of electronic cigarettes may, free of charge, or at a reduced charge distribute any electronic cigarette to a person younger than 18 years; or 6
Part 1 cl 4 (c) supply any electronic cigarette to any person for subsequent distribution to a person younger than 18 years; or in the case of a retailer, supply any electronic cigarette to any person for the purpose of that retailer s business. (2) For the purposes of subsection (1), an electronic cigarette is distributed or supplied at a reduced charge if the charge for the product itself is reduced; or if (i) (ii) (3) No person may the product is distributed or supplied at a charge that is not or purports not to be reduced; but some other item is supplied, free or at a reduced charge, together with the product. offer any gift or cash rebate, or the right to participate in any contest, lottery, or game, to the purchaser of an electronic cigarette in consideration for the purchase of that product, or to any person in consideration for the provision of evidence of such a purchase; or offer, to any retailer, any gift or cash rebate, or the right to participate in any contest, lottery, or game, as an inducement or reward in relation to (i) (ii) (iii) the purchase or sale of electronic cigarettes by that retailer; or the advertising of electronic cigarettes inside that retailer s place of business; or the location of electronic cigarettes in a particular part of that retailer s place of business. (4) Nothing in subsection (3) applies in respect of any payment or reward to any person who purchases or attempts to purchase an electronic cigarette, with the authority of the Director-General or of some other person authorised for that purpose by the Director-General; and for the purpose of monitoring compliance with the provisions of this Part. Sponsorship provisions 41AK Sponsorship provisions in Part 2 apply to electronic cigarettes Sections 24 to 27 apply, with any necessary modifications, as if the definition of tobacco product includes electronic cigarettes. 7
Part 1 cl 4 Offences 41AL Offences in respect of electronic cigarettes (1) Every person who sells an electronic cigarette, or who having sold it delivers it or arranges for it to be delivered, in contravention of section 41AB(1), commits an offence and is liable, in the case of a person who is a body corporate, to a fine not exceeding $10,000; and in the case of a person who is not a body corporate, to a fine not exceeding $5,000. (2) Every person who supplies an electronic cigarette in a public place in contravention of section 41AC(1) commits an offence and is liable to a fine not exceeding $2,000. (3) Every person commits an offence and is liable to a fine not exceeding $2,000 who, in contravention of section 41AD, permits an automatic vending machine that dispenses or is capable of dispensing electronic cigarettes to be located in a place to which members of the public have access; or permits an electronic cigarette to be sold by way of an automatic vending machine in a place to which members of the public have access. (4) Every person commits an offence and is liable to a fine not exceeding $10,000 who, being a manufacturer or an importer, offers for sale or export an electronic cigarette that contains, or generates in its vapour, any harmful constituent prohibited by regulations made under this Part for the purposes of section 41AE(1); or contains, or generates in its vapour, any harmful constituent in excess of the level permitted by regulations made under this Part for the purposes of section 41AE(2), as determined in accordance with any tests so prescribed. (5) Every person who, without reasonable excuse, publishes any advertisement for an electronic cigarette in contravention of section 41AF commits an offence and is liable, in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or in any other case, to a fine not exceeding $10,000. (6) A person who, without reasonable excuse, allows an electronic cigarette or an electronic cigarette package to be visible in contravention of section 41AH commits an offence and is liable to a fine not exceeding $10,000. 8
Part 1 cl 4 (7) Every person who, in contravention of section 41AI(2), distributes an electronic cigarette to which section 41AI(1), or supplies an electronic cigarette to which section 41AI(1) applies to another person for later distribution, or, in the case of a retailer, supplies an electronic cigarette to which section 41AI(1) applies to another person for the purpose of that retailer s business commits an offence, and is liable, in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $10,000; and in any other case, to a fine not exceeding $5,000. (8) Every manufacturer, distributor, importer, or retailer of electronic cigarettes who distributes or supplies an electronic cigarette in contravention of section 41AJ(1) commits an offence and is liable to a fine not exceeding $50,000. (9) It is a defence to a charge in respect of a contravention of section 41AJ(1) if the person charged proves that he or she was merely giving a normal trade discount or normal trade rebate. (10) Every person who offers any gift, cash rebate, or right of participation in contravention of section 41AJ(2), commits an offence and is liable, in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $10,000; or in any other case, to a fine not exceeding $5,000. Offences relating to section 41AK (11) Every person who, in respect of electronic cigarettes and without reasonable excuse, uses any trade mark or company name in contravention of subsection (1) or (2) of section 24, or who distributes, sells, or offers or exposes for sale any article in contravention of subsection (3) of that section commits an offence and is liable, in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or in any other case, to a fine not exceeding $10,000. (12) Every manufacturer, importer, distributor, or retailer of electronic cigarettes who, in contravention of section 25(1), sponsors (within the meaning of section 25(2)) an organised activity commits an offence and is liable, in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or in any other case, to a fine not exceeding $10,000. (13) Every manufacturer, importer, distributor, or retailer of electronic cigarettes who, in contravention of section 25A(1), sponsors (within the meaning of section 25(2)) any organised activity, commits an offence and is liable, in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or 9
Part 2 cl 5 in any other case, to a fine not exceeding $10,000. Part 2 Related amendments 5 Section 2 amended (Interpretation) (1) In section 2(1), insert in their appropriate alphabetical order: electronic cigarette means any product that can be used for consumption of nicotine-containing vapour via a mouthpiece, and includes any component of the product, including a cartridge, a tank, or any other receptacle that contains nicotine-containing liquid; and the nicotine-containing liquid used by the product electronic cigarette advertisement means any words, whether written, printed, or spoken, including on film, video recording, 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 electronic cigarette or the use of electronic cigarettes and includes (c) any trade circular, any label, and any advertisement in any trade journal; and any depiction, in a film, video recording, telecast, or other visual medium, of an electronic cigarette or an electronic cigarette trade mark, where in return for that depiction any money is paid, or any valuable thing is given, whether to the maker or producer of that film, video recording, telecast, or visual medium or to any other person; and the use in any advertisement or promotion to the public of an electronic cigarette manufacturer s company name where that name or any part of that name is used as, or is included in, an electronic cigarette trade mark and advertise has a corresponding meaning electronic cigarette package means a box, carton, pack, packet, pouch, tin, wrapping, or other package that contains an electronic cigarette or cigarettes use of an electronic cigarette means the consumption of nicotine-containing vapour from an electronic cigarette (2) In section 2(1), in paragraph of the definition of automatic vending machine, after tobacco products, insert or electronic cigarettes. (3) In section 2(1), in the definition of to smoke, after paragraph, insert: (ab) includes the consumption of nicotine-containing vapour from an electronic cigarette; and (4) In section 2(1), replace the definition of tobacco product with: 10
Part 2 cl 10 tobacco product means any product manufactured from tobacco and intended for use by smoking, inhalation, or mastication, and includes nasal and oral snuff, but does not include any medicine (being a medicine in respect of which there is in force a consent or provisional consent given under section 20 or 23 of the Medicines Act 1981) that is sold or supplied wholly or principally for use as an aid in giving up smoking; or an electronic cigarette 6 Section 3A amended (Purposes of this Act) After section 3A(1), insert: (ba) to regulate and control the advertising, promotion, sale, supply, and use of electronic cigarettes; and 7 Section 39 amended (Regulations) (1) In section 39(1)(g), replace tobacco products or herbal smoking products with tobacco products, electronic cigarettes, or herbal smoking products. (2) Replace section 39(1)(ga) with: (ga) prohibiting harmful constituents of tobacco products, electronic cigarettes, or herbal smoking products for the purposes of sections 31 and 41AE: (3) In section 39(1)(h), replace tobacco products or herbal smoking products with tobacco products, electronic cigarettes, or herbal smoking products. 8 Section 41A amended (Powers of entry and inspection) (1) In section 41A(3)(e), replace tobacco products or herbal smoking products with tobacco products, electronic cigarettes, or herbal smoking products. (2) In section 41A(3)(e)(ii), replace tobacco products with tobacco products or electronic cigarettes. 9 Section 41B amended (Requirement to give identifying information) (1) In section 41B(1), replace tobacco products or herbal smoking products with tobacco products, electronic cigarettes, or herbal smoking products in each place. (2) In section 41B(1), replace products with cigarettes or products. (3) In section 41B(1), replace products with cigarettes or products. 10 Section 41C amended (Purposes for which powers may be used) In section 41C(2), replace tobacco products or herbal smoking products with tobacco products, electronic cigarettes, or herbal smoking products in each place. 11