(b) To regulate the marketing, advertising, and promotion of tobacco products, whether directly or through the sponsoring of other products, services, or events; and

(d) To establish a Health Sponsorship Council

BE IT ENACTED by the Parliament of New Zealand as follows:

1 Short Title and commencement

(1) This Act may be cited as the Smoke-free Environments Act 1990.

(2) Part 1 of this Act shall come into force on the expiry of 3 months after the date on which this Act receives the Royal assent.

(3) Part 2 of this Act shall come into force on the 16th day of December 1990.

(4) Except as provided in subsections (2) and (3) of this section, this Act shall come into force on the day after the date on which it receives the Royal assent.

2 Interpretation

(1) In this Act, unless the context otherwise requires,—
additive,—
- (a) in relation to a tobacco product, means a substance forming part of the product that is not cured tobacco leaf; and includes—
  - (i) a substance forming part of the product that has been derived or refined from tobacco leaf (whether cured or not); and
  - (ii) any wrapping forming part of the product that is not itself cured tobacco leaf; and
- (b) in relation to a herbal smoking product, means a substance forming part of the product that is not dried, or dried and cured, vegetable matter; and includes—
  - (i) a substance forming part of the product that has been derived or refined from vegetable matter; and
  - (ii) any wrapping forming part of the product that is not itself dried, or dried and cured, vegetable matter
additive: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
Aircraft has the same meaning as in section 2 of the Civil Aviation Act 1990

Area health board

[Repealed]

Area health board: this definition was repealed, as from 1 July 1993, by section 32 Health Reforms (Transitional Provisions) Act 1993 (1993 No 23).
Automatic vending machine means any self-service machine that,—
- (a) On the insertion of a coin or token or by any other means, dispenses by way of sale tobacco products, whether automatically or with the assistance of the purchaser; and
- (b) Does not require replenishment between each sale:
Automatic vending machine: this definition was inserted, as from 29 July 1997, by section 2(1) Smoke-Free Environments Amendment Act 1997 (1997 No 32).
casino means a casino for which a casino venue licence is in force under section 122 or section 137 of the Gambling Act 2003.

Casino: this definition was inserted, as from 29 July 1997, by section 2(1) Smoke-Free Environments Amendment Act 1997 (1997 No 32).

Casino: this definition was substituted, as from 1 July 2004, by section 374 Gambling Act 2003 (2003 No 51). See sections 376 and 377 of that Act for the savings and transitional provisions. See clause 2(3) Gambling Act Commencement Order 2003 (SR 2003/384).

casino operator's licence means a licence granted under section 130 of the Gambling Act 2003.

Casino operator's licence: this definition was inserted, as from 29 July 1997, by section 2(1) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Casino operator's licence: this definition was substituted, as from 1 July 2004, by section 374 Gambling Act 2003 (2003 No 51). See sections 376 and 377 of that Act for the savings and transitional provisions. See clause 2(3) Gambling Act Commencement Order 2003 (SR 2003/384).
children's product—
- (a) means a product (such as comics, games, and toys) marketed primarily for children; and
- (b) includes confectionery, ice-cream, soft drinks, and other similar products
children's product: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
class 4 gambling venue licence means a class 4 venue licence within the meaning of section 4(1) of the Gambling Act 2003

class 4 gambling venue licence: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

coastal cargo has the meaning given to it by section 198(6) of the Maritime Transport Act 1994

coastal cargo: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Code of practice or code

[Repealed]

Code of practice: this definition was inserted, as from 29 July 1997, by section 2(1) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Code of practice or code: this definition was repealed, as from 11 December 1998, by section 7(3)(a) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Company name includes any corporate name, firm name, or business name, whether or not it is registered or registrable under the Companies Act 1955 or the Companies Act 1993 or any other enactment

Company name: this definition was amended, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16) by inserting the words “or the Companies Act 1993”.

Council means the Health Sponsorship Council established by section 43 of this Act
Craft means—
- (a) An aircraft:
- (b) A ship (as defined in section 2(1) of the Shipping and Seamen Act 1952):
dedicated smoking room means an internal area in a hospital care institution, a residential disability care institution, or a rest home that is used solely to enable patients or residents who smoke to smoke, or to socialise with each other in a place where smoking is permitted

dedicated smoking room: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Director

[Repealed]

Director: this definition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Director-General means the Director-General of Health

distributor means a person engaged in the business of selling tobacco products, or (as the case may be) herbal smoking products, otherwise than at retail only

Distributor: this definition was substituted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

early childhood education and care centre has the meaning given to it by section 309 of the Education Act 1989.

Employee means any person of any age employed under a contract of service by an employer to do any work for hire or reward
employer—
- (a) means a person who employs one or more employees; and
- (b) includes a person who arranges for volunteers to undertake work
Employer: this definition was substituted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
enforcement officer means a person for the time being appointed under section 14 to enforce Parts 1 and 2, or provisions of Parts 1 and 2

enforcement officer: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
face, in relation to a tobacco carton or tobacco package,—
- (a) means a more or less flat area of the surface of the carton or package that is bounded by edges of the package; and
- (b) in the case of a tobacco package that is a pouch pack, includes a curved area of the surface of the package that is between 2 faces
face: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
foreign ship means a ship that is not a New Zealand ship

foreign ship: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

gambling has the meaning set out in section 4(1) of the Gambling Act 2003.

gambling: this definition was inserted, as from 1 July 2004, by section 374 Gambling Act 2003 (2003 No 51). See sections 376 and 377 of that Act for the savings and transitional provisions. See clause 2(3) Gambling Act Commencement Order 2003 (SR 2003/384).

gambling area, in relation to a casino venue, means the area of the venue in which gambling is conducted.

gambling area: this definition was inserted, as from 1 July 2004, by section 374 Gambling Act 2003 (2003 No 51). See sections 376 and 377 of that Act for the savings and transitional provisions. See clause 2(3) Gambling Act Commencement Order 2003 (SR 2003/384).

Gaming

[Repealed]

Gaming: this definition was inserted, as from 29 July 1997, by section 2(1) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Gaming: this definition was repealed, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Gaming area

[Repealed]

Gaming area: this definition was inserted, as from 29 July 1997, by section 2(1) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Gaming area: this definition was repealed, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
herbal smoking product means a product that—
- (a) is or contains vegetable matter; and
- (b) is intended to be smoked; but
- (c) contains no tobacco
herbal smoking product: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
Hospital

[Repealed]

Hospital: this definition was substituted, as from 1 July 1993, by section 32 Health Reforms (Transitional Provisions) Act 1993 (1993 No 23).

Hospital: this definition was substituted, as from 1 October 2002, by section 58(1) Health and Disability Services (Safety) Act 2001 (2001 No 93). See section 11 of that Act for transitional provisions.

Hospital: this definition was repealed, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

hospital care institution has the meaning given to that term by section 58(4) of the Health and Disability Services (Safety) Act 2001

hospital care institution: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
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) a ceiling, roof, or similar overhead surface; and
- (b) walls, sides, screens, or other similar surfaces; and
- (c) those openings
internal area: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
Internal flight means a flight—
- (a) Between any 2 or more places in New Zealand; or
- (b) That commences from any place in New Zealand and is intended to terminate at that same place:
licensed premises means any premises, or any part of any premises, on which liquor may be sold pursuant to a licence under the Sale of Liquor Act 1989

licensed premises: this definition was substituted, as from 10 December 2004, by section 3(2) Smoke-free Environments Amendment Act 2003 (2003 No 127).

managers, in relation to a school, or premises to which section 7A(4) applies, means all the people who control and manage the school or premises, whether or not they have a proprietary interest in the school or premises

managers: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Manufacturer includes any company with which a manufacturer is associated within the meaning of subpart YB of the Income Tax Act 2007 (to the extent to which those rules apply for the whole of that Act excluding the 1973, 1988, and 1990 version provisions)

Minister means the Minister of Health

New Zealand continental waters has the meaning given to it by section 222(1) of the Maritime Transport Act 1994

New Zealand continental waters: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
New Zealand resident means—
- (a) A New Zealand citizen:
- (b) A permanent resident of New Zealand within the meaning of section 38 of the Electoral Act 1956:
- (c) A company incorporated in New Zealand:
New Zealand ship has the meaning given to it by section 2(1) of the Ship Registration Act 1992

New Zealand ship: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

of the same kind means not differing in a manner stated in subsection (2)

of the same kind: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Office means a place in which any person is employed, directly or indirectly, to do any clerical work in connection with any business carried on by the occupier of that place

open area, in relation to any premises, means a part of the premises that is not an internal area

open area: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
operating taxi means a taxi at a time when—
- (a) it is carrying a passenger; or
- (b) its driver is—
  - (i) travelling to begin plying for hire; or
  - (ii) plying for hire; or
  - (iii) travelling to pick up a passenger; or
  - (iv) returning from carrying a passenger (otherwise than at the end of a shift); or
  - (v) resting, eating, or drinking before beginning or resuming plying for hire
operating taxi: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
Organised activity means any cultural, educational, sporting, or recreational activity or event

package means a pack, carton, wrapping, or other container in which tobacco products, or (as the case may be) herbal smoking products, are customarily sold at retail

package: this definition was substituted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Passenger service vehicle and small passenger service vehicle have the same meaning as in section 2 of the Land Transport Act 1998

Permitted smoking area

[Repealed]

Permitted smoking area: this definition was repealed, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
point of sale —
- (a) means a checkout where tobacco products may be bought; and
- (b) includes a till or cashbox, where tobacco products may be bought, even if it is not at or part of a checkout
point of sale: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
prescribed petroleum operations means petroleum operations prescribed for the purposes of the Health and Safety in Employment Act 1992 by regulations made under that Act

prescribed petroleum operations: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
prison —
- (a) means a prison within the meaning of the Corrections Act 2004; and
- (b) includes a facility attached to a prison
Prison: this definition was substituted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Prison: this definition was amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the word “prison” for the words “penal institution”. See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).

Prison: this definition was amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the expression “Corrections Act 2004” for the expression “Penal Institutions Act 1954”. See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).
pouch pack means a package made, from flexible material, in the form of a rectangular pocket with a flap covering the opening

pouch pack: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
Publish means—
- (a) Insert in any newspaper or other periodical publication printed, published, or distributed in New Zealand; or
- (b) Send to any person, by post or otherwise; or
- (c) Deliver to any person or leave upon premises in the occupation of any person; or
- (d) Broadcast within the meaning of the Broadcasting Act 1989; or
- (e) Include in any film or video recording; or
- (f) Include in any disk for use with a computer; or
- (g) Disseminate by means of any other electronic medium; or
- (h) Distribute by any means; or
- (ha) Display by way of a sign, notice, poster, or other means; or
- (i) Bring to the notice of the public in New Zealand in any other manner:
Publish: paragraph (ha) of this definition was inserted, as from 29 July 1997, by section 2(2) Smoke-free Environments Amendment Act 1997 (1997 No 32).
registered school has the meaning given to it by section 2(1) of the Education Act 1989

registered school: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

residential disability care institution has the meaning given to that term by section 58(4) of the Health and Disability Services (Safety) Act 2001

residential disability care institution: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Restaurant means any premises, or any part of any premises, where the principal business is the selling of meals or refreshments to the general public for consumption on the premises, whether or not liquor is or may be sold on those premises or that part of those premises; and includes any room or area on a ship or train where meals or refreshments are provided for passengers to consume

Rest home has the meaning given to it by section 58(4) of the Health and Disability Services (Safety) Act 2001

Rest home: this definition was substituted, as from 1 October 2002, by section 58(1) Health and Disability Services (Safety) Act 2001 (2001 No 93). See section 11 of that Act for transitional provisions.

retailer means a person engaged in any business that includes the sale of tobacco products, or (as the case may be) herbal smoking products, at retail

retailer: this definition was substituted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
school premises means premises that are—
- (a) a registered school; or
- (b) facilities, grounds, structures, or other premises, controlled and managed by the managers of a registered school, and used principally for—
  - (i) the enjoyment, recreation, or relaxation of the young people attending the school; or
  - (ii) cultural or sporting activities (or both) involving, or undertaken for the benefit of, the young people attending the school
school premises: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
ship has the meaning given to it by section 2(1) of the Ship Registration Act 1992

ship: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

ship on demise charter to a New Zealand-based operator has the meaning given to it by section 4 of the Ship Registration Act 1992

ship on demise charter to a New Zealand-based operator: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Smoking accessory means any article or substance that is used in conjunction with smoking, including cigarette papers, pipe cleaners, cigarette lighters, lighter fuel, and ashtrays; and includes the packaging, carton, wrapping, or other container in which smoking accessories are customarily sold at retail

taxi has the same meaning as in section 2(1) of the Land Transport Act 1998
to smoke —
- (a) means to smoke, hold, or otherwise have control over an ignited tobacco product, weed, or plant; and
- (b) includes to smoke, hold, or otherwise have control over an ignited product or thing whose customary use is or includes the inhalation from it of the smoke produced from its combustion or the combustion of any part of it; but
- (c) does not include to hold or have control over an ignited product or thing customarily used as incense
to smoke: this definition was substituted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
tobacco carton means a box, carton, pack, packet, pouch, tin, wrapping, or other package containing 2 or more tobacco packages

tobacco carton: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
tobacconist's shop —
- (a) means a retail shop that—
  - (i) is held out as a specialist retail seller of tobacco products (even if it is also held out as a specialist retail seller of other products such as newspapers and magazines, or it also provides services such as hairdressing, or both); and
  - (ii) obtains from the retail sale of tobacco products at least 60% of the gross revenue it obtains from retail sales; but
- (b) does not include any retail shop within premises in which petroleum products are sold to motorists
tobacconist's shop: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
tobacco package means a box, carton, pack, packet, pouch, tin, wrapping, or other package that—
- (a) contains a tobacco product or products; but
- (b) does not contain other tobacco packages within it
tobacco package: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
tobacco packages in a visible stack means 2 or more tobacco packages so arranged that—
- (a) one is in front of, but does not completely obscure, the other or others; but
- (b) at least 88% of the total surface area of every package behind the front package is obscured
tobacco packages in a visible stack: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
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 section 23 of the Medicines Act 1981) that is sold or supplied wholly or principally for use as an aid in giving up smoking
Tobacco product 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 tobacco product or to promote smoking behaviour; and includes—
- (a) Any trade circular, any label, and any advertisement in any trade journal; and
- (b) Any depiction, in a film, video recording, telecast, or other visual medium, of a tobacco product or a tobacco product 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
- (c) The use in any advertisement or promotion to the public of a tobacco products manufacturer's company name where that name or any part of that name is used as, or is included in, a tobacco product trade mark;—
and advertise has a corresponding meaning
toy tobacco product means an object that—
- (a) looks like a tobacco product or a smoker's pipe, and can be used to simulate smoking; but
- (b) cannot be smoked, is not confectionery, and has a primary purpose other than to help people stop smoking
toy tobacco product: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
Trade mark includes any trade mark whether or not it is registered or registrable as such under the Trade Marks Act 2002; and also includes—
- (a) Any brand name:
- (b) Any company name, where that name is used for advertising or promotional purposes:
- (c) Any name, word, or mark, that so resembles any trade mark that it is likely to be taken as, or confused with, that trade mark:
Trade mark: this definition was amended, as from 20 August 2003, by section 201 Trade Marks Act 2002 (2002 No 49) by substituting the words “Trade Marks Act 2002” for the words “Trade Marks Act 1953”. See clause 2 Trade Marks Act 2002 Commencement Order 2003 (SR 2003/188).
variant means sold in tobacco packages, or (as the case may be) packages of a herbal smoking product, that are not of the same kind

variant: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
volunteer means a person of any age who—
- (a) performs for an employer, otherwise than for hire or reward, any work arranged by or on behalf of the employer; or
- (b) performs for the master of a ship, otherwise than for hire or reward, any work arranged by or on behalf of the owner or master of the ship
volunteer: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
workplace, in relation to an employer,—
- (a) means an area that is—
  - (i) an internal area, within or on a building or structure occupied by the employer, usually frequented by employees or volunteers during the course of their employment; or
  - (ii) an internal area, within or on a ship (being a ship to which section 10 applies), an aircraft, or a train, owned, leased, or otherwise operated by the employer, usually frequented by employees or volunteers during the course of their employment; and
- (b) includes a cafeteria, corridor, lift, lobby, stairwell, toilet, washroom, or other common internal area attached to, forming part of, or used in conjunction with a work place within the meaning of paragraph (a); and
- (c) includes an internal area within or on a vehicle that—
  - (i) is not an aircraft, a ship, or a train; but
  - (ii) is provided by the employer and normally used by employees or volunteers; and
- (d) includes an operating taxi; but
- (e) does not include—
  - (i) a motel, or a bedroom or suite in a hotel; or
  - (ii) a cabin or suite, for the time being assigned to a passenger or passengers, on a ship; or
  - (iii) a sleeping compartment, for the time being assigned to a passenger or passengers, on a train; or
  - (iv) a cabin, for the time being assigned to only one employee or volunteer, or to the master or owner, on a ship; or
  - (v) a sleeping compartment, for the time being assigned to only one employee or volunteer, on a train; or
  - (vi) a prison cell; or
  - (vii) a dwellinghouse occupied by the employer.
workplace: this definition was substituted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).
(2) For the purposes of the definition of of the same kind in subsection (1),—
- (a) tobacco packages, tobacco cartons, or packages of a herbal smoking product differ if they bear different brand names:
- (b) tobacco packages, tobacco cartons, or packages of a herbal smoking product differ if they bear the same brand name, but the products they contain differ in 1 or more of the following ways:
  - (i) containing or not containing menthol:
  - (ii) being otherwise differently flavoured:
  - (iii) producing different quantities of tar:
  - (iv) allegedly differing in “mildness”:
  - (v) having or not having filter tips or cork tips:
  - (vi) containing different numbers of pieces:
  - (vii) containing pieces of different length or mass:
- (c) tobacco cartons differ if they are sold under the same brand name, but they contain different numbers of tobacco packages.
(3) For the purposes of paragraph (e)(vii) of the definition of workplace in subsection (1), no part of a ship is capable of being a dwellinghouse occupied by an employer.

Section 2(1) early childhood centre: repealed, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

Section 2(1) early childhood education and care centre: inserted, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

Section 2(1) manufacturer: amended, on 1 April 2008, by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Manufacturer: this definition was amended, as from 1 April 1995, by section YB 1 Income Tax Act 1994 (1994 No 164) by substituting the words “section OD 7 of the Income Tax Act 1994” for the words “section 8 of the Income Tax Act 1976”.

Manufacturer: this definition was amended, as from 1 April 2005, by section YA 2 Income Tax Act 2004 (2004 No 35) by substituting the words “Income Tax Act 2004” for the words “Income Tax Act 1994”.

Section 2(1) passenger service vehicle and small passenger service vehicle: amended, on 1 October 2007, by section 95(6) of the Land Transport Amendment Act 2005 (2005 No 77).

Section 2(1) taxi: substituted, on 1 January 2009, by section 63(2) of the Public Transport Management Act 2008 (2008 No 87).

taxi: this definition was inserted, as from 11 December 2003, by section 3(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsections (2) and (3) were inserted, as from 11 December 2003, by section 3(3) Smoke-free Environments Amendment Act 2003 (2003 No 127).

3 Act binds the Crown

This Act shall bind the Crown.

Part 1
Smoke-free workplaces and public areas

This heading was substituted, as from 11 December 2003, by section 4 Smoke-free Environments Amendment Act 2003 (2003 No 127). The previous heading read: “Smoke-free indoor environments”.

4 Purposes of this Part

The purposes of this Part are—
- (a) to prevent the detrimental effect of other people's smoking on the health of people in workplaces, or in certain public enclosed areas, who do not smoke or do not wish to smoke there; and
- (b) to prevent young people who are being taught or cared for in registered schools or early childhood education and care centres from being influenced by seeing other people smoke there; and
- (c) to prevent the detrimental effect of other people's smoking on the health of young people who are being taught or cared for in registered schools or early childhood education and care centres.
Section 4 was substituted, as from 11 December 2003, by section 4 Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 4(b): amended, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

Section 4(c): amended, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

5 Smoking in workplaces prohibited

(1) An employer must take all reasonably practicable steps to ensure that no person smokes at any time in a workplace that is not—
- (a) a vehicle in which smoking is permitted under section 5A; or
- (b) a dedicated smoking room in which smoking is permitted under section 6.
(2) No employee or volunteer may smoke at any time in a workplace that is not a vehicle in which smoking is permitted under section 5A.

Section 5 was substituted, as from 10 December 2004, by section 5 Smoke-free Environments Amendment Act 2003 (2003 No 127).

5A Employer may permit smoking in vehicle with consent of users

An employer may permit smoking in a vehicle provided by the employer and normally used by employees or volunteers if—
- (a) the public does not normally have access to any part of it; and
- (b) all the employees and volunteers who use it regularly or from time to time have jointly or individually given the employer written notice—
  - (i) asking the employer to permit smoking in it; or
  - (ii) stating that they do not object to other employees and volunteers smoking in it; and
- (c) since last giving the employer notice to that effect, none of the employees and volunteers who use it regularly or from time to time has given the employer written notice that he or she—
  - (i) no longer wishes the employer to permit smoking in it; or
  - (ii) now objects to other employees and volunteers smoking in it.
Section 5A was inserted, as from 10 December 2004, by section 5 Smoke-free Environments Amendment Act 2003 (2003 No 127).

6 Dedicated smoking rooms in hospital care institutions, residential disability care institutions, and rest homes

(1) An employer may permit smoking by patients or residents of a workplace that is, or is part of, a hospital care institution, a residential disability care institution, or a rest home if—
- (a) the smoking takes place only in one or more dedicated smoking rooms; and
- (b) each dedicated smoking room is equipped with or connected to a mechanical ventilation system to which subsection (2) applies; and
- (c) the employer has taken all reasonably practicable steps to minimise the escape of smoke from the dedicated smoking rooms into any part of the workplace that is not a dedicated smoking room; and
- (d) for each dedicated smoking room, there is available for patients or residents who wish to socialise in a smokefree atmosphere an adequate equivalent room.
(2) This subsection applies to a mechanical ventilation system with which a dedicated smoking room in a workplace is equipped if, and only if,—
- (a) the system is so designed, installed, and operating that it takes air from the room to a place outside the workplace where any smoke the air may contain will not enter any part of the workplace, either—
  - (i) directly; or
  - (ii) through one or more other dedicated smoking rooms; and
- (b) no part of the workplace that is not a dedicated smoking room is equipped with or connected to the system.
(3) Subsection (1)—
- (a) does not authorise an employer to permit a person who is not a patient or resident of the institution or home concerned to smoke in a dedicated smoking room; and
- (b) does not authorise a person who is not a patient or resident of the institution or home concerned to smoke in a dedicated smoking room.
Section 6 was substituted, as from 10 December 2004, by section 5 Smoke-free Environments Amendment Act 2003 (2003 No 127).

6A Smoking in prison cells

(1) The superintendent of a prison must ensure that there is a written policy on smoking in the prison's cells, prepared for the protection of the health of employees and inmates.
(2) The policy—
- (a) must be based on the principles that—
  - (i) as far as is reasonably practicable, an employee or inmate who does not smoke, or does not wish to smoke in the prison, must be protected from smoke arising from smoking in the prison's cells:
  - (ii) unless it is not reasonably practicable to do other wise, an inmate who does not wish to smoke in his or her cell must not be required to share it with an inmate who does wish to smoke in it; and
- (b) must state the procedure for making complaints under this Part.
(3) The superintendent—
- (a) must ensure that the policy complies with subsection (2); and
- (b) must take all reasonably practicable steps to ensure that the policy is complied with.
Section 6A was inserted, as from 10 December 2004, by section 5 Smoke-free Environments Amendment Act 2003 (2003 No 127).

7 Duties of employer

[Repealed]

Section 7 was repealed, as from 10 December 2004, by section 5 Smoke-free Environments Amendment Act 2003 (2003 No 127).

7A Smoking prohibited at schools and early childhood education and care centres

(1) The managers of school premises or premises to which subsection (4) applies must take all reasonably practicable steps to ensure that—
- (a) no person smokes in any part of the premises (whether an internal area or an open area) at any time on any day; and
- (b) a notice stating that smoking within the premises is forbidden at all times is prominently displayed at or immediately inside—
  - (i) every entrance to the premises; and
  - (ii) every outer entrance to every building or enclosed area forming part of the premises.
(2) Subsection (1)(b)(ii) does not apply to—
- (a) a building or enclosed area not usually or from time to time used by young people attending the school or centre concerned or members of the public; or
- (b) an outer entrance used by young people attending the school or centre concerned or members of the public only temporarily or in emergencies.
(3) The occupier of premises that are neither school premises nor premises to which subsection (4) applies must take all reasonably practicable steps to ensure that no person smokes within any area of the premises (whether an internal area or an open area) that—
- (a) is being used as an early childhood education and care centre; or
- (b) is so situated and ventilated that smoke from people smoking in it is likely to enter another area of the premises that is being used as an early childhood education and care centre.
(4) This subsection applies to premises—
- (a) that are used exclusively or primarily as an early childhood education and care centre; or
- (b) that are facilities, grounds, structures, or other premises, controlled and managed by the managers of premises that are used exclusively or primarily as an early childhood education and care centre, and used exclusively or primarily for—
  - (i) the enjoyment, recreation, or relaxation of the children attending the centre; or
  - (ii) cultural or sporting activities (or both) involving, or undertaken for the benefit of, the children attending the centre.
Section 7A was inserted, as from 1 January 2004, by section 6(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Section 7A heading: amended, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

Section 7A(3)(a): amended, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

Section 7A(3)(b): amended, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

Section 7A(4)(a): amended, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

Section 7A(4)(b): amended, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).

8 Smoking prohibition on aircraft

(1) The operator of an aircraft shall not permit any person to smoke on that aircraft while the aircraft is carrying passengers for hire or reward on any internal flight.

(2) [Repealed]

Subsection (2) was repealed, as from 1 June 2004, by section 41(3) Civil Aviation Amendment Act 2004 (2004 No 8).

9 Smoking restricted in passenger service vehicles

(1) Subject to subsection (3) of this section, the operator of a passenger service vehicle shall not permit any person to smoke in that vehicle while it is carrying passengers.

(1A) The operator of an operating taxi must not permit any person to smoke in it.

(1B) No person may smoke in an operating taxi, whether or not it is carrying passengers.

(2) Subject to subsection (3) of this section, no person shall smoke in any passenger service vehicle while it is carrying passengers.

(3) Nothing in this section shall apply to any small passenger service vehicle (other than an operating taxi) where the driver and every passenger in the vehicle agree that smoking shall be permitted.

Subsections (1A) and (1B) were inserted, as from 10 December 2004, by section 7(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsection (3) was amended, as from 10 December 2004, by section 7(2) Smoke-free Environments Amendment Act 2003 (2003 No 127) by inserting the words “(other than an operating taxi)” after the words “service vehicle”.

10 Application of Act to ships

This Act applies to a ship if, and only if, it is—
- (a) a New Zealand ship that is within New Zealand; or
- (b) a foreign ship that—
  - (i) is a ship on demise charter to a New Zealand-based operator; and
  - (ii) is carrying coastal cargo within New Zealand; or
- (c) a foreign ship that is carrying out prescribed petroleum operations in New Zealand continental waters.
Sections 10 to 13A were substituted, as from 10 December 2004, by section 8 Smoke-free Environments Amendment Act 2003 (2003 No 127).

11 Smoking prohibited in certain travel premises

(1) This section applies to any area that—
- (a) is located within an enclosed travel terminal; and
- (b) is a booking area, passenger queuing area, passenger waitingroom, or passenger lounge.
(2) The owner or occupier of an area to which this section applies must not permit any person to smoke in it.

(3) No person may smoke in an area to which this section applies.

Sections 10 to 13A were substituted, as from 10 December 2004, by section 8 Smoke-free Environments Amendment Act 2003 (2003 No 127).

12 Smoking on licensed premises

(1) The licensee of any licensed premises must take all reasonably practicable steps to ensure that no person smokes at any time in a part of the premises that is not an open area.

(2) Subsection (1) does not prevent the licensee of any licensed premises from prohibiting smoking in a part of the premises that is an open area.

(3) No person may smoke at any time in a part of any licensed premises that is not an open area.

Sections 10 to 13A were substituted, as from 10 December 2004, by section 8 Smoke-free Environments Amendment Act 2003 (2003 No 127).

13 Smoking in restaurants

(1) The operator of a restaurant must take all reasonably practicable steps to ensure that no person smokes at any time in any part of the restaurant that is not an open area.

(2) Subsection (1) does not prevent the operator of a restaurant from prohibiting smoking in a part of the restaurant that is an open area.

(3) No person may smoke at any time in any part of a restaurant that is not an open area.

Sections 10 to 13A were substituted, as from 10 December 2004, by section 8 Smoke-free Environments Amendment Act 2003 (2003 No 127).

13A Smoking in casinos

(1) The holder of the casino operator's licence in respect of a casino must take all reasonably practicable steps to ensure that no person smokes at any time in any part of the casino that is not an open area.

(2) Subsection (1) does not prevent the holder of the casino operator's licence in respect of a casino from prohibiting smoking in a part of the casino that is an open area.

(3) No person may smoke at any time in any part of a casino that is not an open area.

Section 13A was inserted, as from 29 July 1997, by section 3 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Section 13A was amended, as from 1 July 2004, by section 374 Gambling Act 2003 (2003 No 51) by substituting the word “gambling” for the word “gaming” wherever it occurs. See sections 376 and 377 of that Act for the savings and transitional provisions. See clause 2(3) Gambling Act Commencement Order 2003 (SR 2003/384).

Sections 10 to 13A were substituted, as from 10 December 2004, by section 8 Smoke-free Environments Amendment Act 2003 (2003 No 127).

13B Smoking in certain gaming machine venues

(1) The holder of a class 4 gambling venue licence in respect of a place must take all reasonably practicable steps to ensure that no person smokes at any time in any part of the place that is not an open area.

(2) Subsection (1) does not prevent the holder of a class 4 gambling venue licence in respect of a place from prohibiting smoking in a part of the place that is an open area.

(3) No person may smoke at any time in any part of a place in respect of which a class 4 gambling venue licence is held that is not an open area.

Section 13B was inserted, as from 10 December 2004, by section 8 Smoke-free Environments Amendment Act 2003 (2003 No 127).

14 Enforcement officers

(1) The Director-General must appoint to enforce this Part and Part 2 people who are—
- (a) employees of the Ministry of Health, a local authority under the Local Government Act 1974, or a District Health Board under the New Zealand Public Health and Disability Act 2000; or
- (b) employees or officers of some other person or body; or
- (c) officers designated under section 7A of the Health Act 1956; or
- (d) inspectors appointed under the Health and Safety in Employment Act 1992.
(2) A person may be appointed by name, or as the holder for the time being of a particular position.
(3) The Director-General must not appoint a person under subsection (1)(b) unless satisfied,—
- (a) in the case of a named person, that he or she is suitably qualified and trained:
- (b) in the case of the holder for the time being of a particular position, that holders of the position are likely to be suitably qualified and trained.
(4) Every enforcement officer must have an instrument of appointment identifying the holder as an enforcement officer appointed under this section.
(5) The Director-General may do any or all of the following:
- (a) appoint people to enforce only some of the provisions of this Part and Part 2:
- (b) appoint people to exercise only some of the powers given to enforcement officers by Part 2A (enforcement powers):
- (c) appoint people subject to limitations or restrictions on their exercise of enforcement powers.
(6) An enforcement officer's instrument of appointment must state—
- (a) that he or she is appointed to enforce—
  - (i) all the provisions of this Part and Part 2; or
  - (ii) only stated provisions of this Part and Part 2; or
  - (iii) all the provisions of this Part and Part 2 other than certain stated provisions; and
- (b) that he or she is appointed to exercise—
  - (i) all enforcement powers; or
  - (ii) only stated enforcement powers; or
  - (iii) all enforcement powers other than certain stated powers; and
- (c) all limitations and restrictions on his or her exercise of enforcement powers imposed under subsection (5)(c).
Section 14 was substituted, as from 1 July 1993, by section 32 Health Reforms (Transitional Provisions) 1993 (1993 No 23).

Subsection (2) was amended, as from 1 July 2003, by section 262 Local Government Act 2002 (2002 No 84) by substituting the words “Local Government Act 2002” for the words “Local Government Act 1974”. See sections 273 to 314 of that Act as to the savings and transitional provisions.

Section 14 was substituted, as from 10 March 2004, by section 9 Smoke-free Environments Amendment Act 2003 (2003 No 127).

15 Complaints relating to workplace smoking

(1) Where any person believes on reasonable grounds that any person has contravened any provision of this Part of this Act in so far as it relates to any workplace, the person may complain to the employer of that workplace, or to the Director-General, specifying the particulars of the complaint.

(2) Where an employer receives a complaint under subsection (1) of this section, or a complaint is referred to an employer under section 16(2)(a) of this Act, the employer shall, within 20 working days after receipt of the complaint, investigate the complaint, and, if it appears that a contravention has occurred, shall try to resolve the complaint.

(3) Where the contravention is on the part of the employer, the employer shall settle the cause of the complaint, or give an assurance that satisfies the complainant that there will be no repetition of the cause of the complaint.

(4) Where the contravention is on the part of an employee or volunteer, the employer shall seek to obtain from the employee or volunteer an assurance that satisfies the employer that there will be no repetition of the cause of the complaint.

(5) The representative of the employees in the workplace shall be entitled to be present at any meeting called by the employer for the purpose of resolving the complaint and avoiding future cause for complaint.

(6) 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.

The heading to section 15 was amended, as from 10 December 2004, by section 10(1) Smoke-free Environments Amendment Act 2003 (2003 No 127) by omitting the word “policies”.

Subsections (1) and (6) were amended, as from 1 July 1993, by section 32 Health Reforms (Transitional Provisions) 1993 (1993 No 23) by substituting the words “the Director-General” for the words “the area health board for the district in which the workplace is situated”.

Subsection (4) was amended, as from 10 December 2004, by section 10(2) Smoke-free Environments Amendment Act 2003 (2003 No 127) by inserting the words “or volunteer” after the word “employee” in both places where it occurs.

Subsection (6) was substituted, as from 10 December 2004, by section 10(3) Smoke-free Environments Amendment Act 2003 (2003 No 127).

16 Complaints to Director-General

(1) Any person may make a complaint to the Director-General concerning a contravention by any person of any provision of this Part of this Act.
(2) When the Director-General receives any complaint alleging contravention of this Part of this Act, the following provisions shall apply:
- (a) Where—
  - (i) The contravention allegedly occurred in any workplace; and
  - (ii) The person who is the subject of the complaint is the employer for that workplace, or an employee or volunteer of that employer; and
  - (iii) The complaint was not referred to the Director-General by the employer under subsection (6) of section 15 of this Act,—
  the complaint shall be forwarded by the Director-General to the employer to be dealt with under that section:
- (b) In all other cases, the matter shall be dealt with as though it were a complaint to which subsection (3) of this section applied.
(3) On receipt by the Director-General of a complaint under this Part of this Act, a person appointed under section 14 of this Act may make further inquiries by way of investigation in respect of the complaint.

(4) The person who investigates the complaint may take no further action if the complaint is trivial, frivolous, vexatious, or not made in good faith, or if, during the investigation, the person receives a satisfactory assurance that there will be no repetition of the cause for the complaint; and in any such case the person who made the complaint shall be advised of the reasons why no further action is being taken.

(5) The person investigating the complaint may, on investigation, try to settle the cause of the complaint and obtain a satisfactory assurance against repetition of the cause of the complaint.

(6) Where no such settlement and assurance can be obtained, or if the cause of complaint is in breach of a previously given assurance, a complaint may be laid under the Summary Proceedings Act 1957 in respect of the relevant offence.

Subsections (1) to (3) were amended, as from 1 July 1993, by section 32 Health Reforms (Transitional Provisions) 1993 (1993 No 23) by substituting the words “the Director-General” for the words “the area health board” in each case.

Subsection (2)(a)(ii) was amended, as from 11 December 2003, by section 11 Smoke-free Environments Amendment Act 2003 (2003 No 127) by inserting the words “or volunteer” after the word “employee”.

Subsection (2)(a)(iii) was amended, as from 29 July 1997, by section 4 Smoke-free Environments Amendment Act 1997 (1997 No 32) by substituting the word “Director-General” for the word “board”.

17 Offences in respect of smoking

(1) An employer who fails to comply with section 5(1) commits an offence.

(2A) The managers of any premises who fail to comply with section 7A(1) commit an offence.

(2B) The occupier of any premises who fails to comply with section 7A(3) commits an offence.

(3) The operator of an aircraft who, without reasonable excuse, permits a person to smoke in contravention of section 8(1) commits an offence.

(4) The operator of a passenger service vehicle who, without reasonable excuse, permits a person to smoke in contravention of subsection (1) or subsection (1A) of section 9 commits an offence.

(6) The owner or occupier of an area to which section 11 applies who, without reasonable excuse, permits any person to smoke in the area commits an offence.

(7) A licensee who fails to comply with section 12(1) commits an offence.

(8) The operator of a restaurant who fails to comply with section 13(1) commits an offence.

(8A) The holder of a casino operator's licence who fails to comply with section 13A(1) commits an offence.

(8B) The holder of a class 4 gambling venue licence who fails to comply with section 13B(1) commits an offence.

(8C) An employer who, without reasonable excuse, fails to comply with section 15(6) commits an offence.

(9) A person who smokes in contravention of section 8(2) commits an offence.

Subsections (2A) and (2B) were inserted, as from 1 January 2004, by section 6(2) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsection (8A) was inserted, as from 29 July 1997, by section 5 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (9) was repealed, as from 1 June 2004, by section 41(3) Civil Aviation Amendment Act 2004 (2004 No 8).

Section 17 was substituted, as from 10 December 2004, by section 12 Smoke-free Environments Amendment Act 2003 (2003 No 127).

17A Penalties

(1) The managers of any premises who commit an offence against section 17(2A) are liable,—
- (a) in the case of managers who are a body corporate, to a fine not exceeding $4,000; and
- (b) in the case of managers who are not a body corporate, to a fine not exceeding $400 each.
(2) A person who commits an offence against a provision of section 17 other than subsection (2A), subsection (8C), subsection (9), or subsection 10 is liable,—
- (a) in the case of a person who is a body corporate, to a fine not exceeding $4,000; and
- (b) in the case of a person who is not a body corporate, to a fine not exceeding $400.
(3) An employer who commits an offence against section 17(8C) is liable,—
- (a) in the case of an employer who is a body corporate, to a fine not exceeding $1,000; and
- (b) in the case of an employer who is not a body corporate, to a fine not exceeding $100.
(4) A person who commits an offence against section 17(9) is liable to a fine not exceeding $400.

Section 17A was inserted, as from 10 December 2004, by section 12 Smoke-free Environments Amendment Act 2003 (2003 No 127).

18 Prosecution of offences

(1) No prosecution for an offence against any provision of this Part of this Act shall be commenced except on the information of a person appointed pursuant to section 14 of this Act.

(2) Notwithstanding anything in section 14 of the Summary Proceedings Act 1957, any information in respect of any offence against any provision of this Part of this Act may be laid at any time within 1 year after the time when the matter of the information arose.

19 Protection of persons acting under authority of Act

No person appointed under section 14 of this Act who does any act in pursuance or intended pursuance of any of the functions, duties, or powers conferred by or under this Act shall be under any civil or criminal liability in respect of the act, whether on the grounds of want of jurisdiction, or mistake of law or fact, or on any other ground unless he or she has acted in bad faith or without reasonable care.

20 Saving of powers to make bylaws

Nothing in this Part of this Act shall limit or affect the powers of a local authority under section 145(b) of the Local Government Act 2002, to make bylaws providing greater protection from tobacco smoke than is provided by this Part of this Act.

Section 20 was amended, as from 1 July 1993, by section 32 Health Reforms (Transitional Provisions) Act 1993 (1993 No 23) by omitting the words “of an area health board under section 64(1)(a) of the Health Act 1956, or”.

Section 20 was amended, as from 1 July 2003, by section 262 Local Government Act 2002 (2002 No 84) by substituting the words “section 145(b) of the Local Government Act 2002” for the words “section 684(8) of the Local Government Act 1974”. See sections 273 to 314 of that Act as to the savings and transitional provisions.

20A Health and Safety in Employment Act 1992 not affected

Nothing in this Part, and no steps taken in compliance or purported compliance with this Part, limits or affects—
- (a) the Health and Safety in Employment Act 1992; or
- (b) the obligations of any person under that Act.
Section 20A was inserted, as from 11 December 2003, by section 13 Smoke-free Environments Amendment Act 2003 (2003 No 127).

Part 2
Control of smoking products

This heading was substituted, as from 11 December 2003, by section 14 Smoke-free Environments Amendment Act 2003 (2003 No 127). The previous heading read: “Tobacco Products Control”.

21 Purpose of this Part

The purpose of this Part is—
- (a) To reduce the social approval of tobacco use, particularly among young people, by—
  - (i) Imposing controls on the marketing, advertising, or promotion of tobacco products and their association through sponsorship with other products and events; and
  - (ii) Requiring health messages and other information to be displayed on, or included with, packages containing tobacco products, and on automatic vending machines; and
  - (iii) prohibiting the sale of toy tobacco products to people younger than 18 years; and
- (b) To reduce some of the harmful effects of tobacco products on the health of users by monitoring and regulating the presence of harmful substances in the products and in tobacco smoke; and
- (c) To facilitate the harmonisation of the laws of New Zealand and Australia relating to the labelling of tobacco products (including, without limitation, requirements relating to the display of health messages).
Section 21 was substituted, as from 29 July 1997, by section 6 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Paragraph (a)(iii) was inserted, as from 11 December 2003, by section 15 Smoke-free Environments Amendment Act 2003 (2003 No 127).

Promotion and advertising

22 Advertising of tobacco products

(1) Subject to the succeeding provisions of this section and to section 23 of this Act, no person shall publish, or arrange for any other person to publish, any tobacco product advertisement in New Zealand.

(2) Nothing in subsection (1) of this section shall apply to any price list given to retailers of tobacco products if the price list includes the health messages required by or under this Part of this Act.
(3) Nothing in subsection (1) of this section shall apply to 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—
- (a) The principal purpose of the book, magazine, newspaper, transmission, film, or video recording is the promotion of the use of tobacco products; or
- (b) The book, magazine, newspaper, film, or video recording is intended for sale, distribution, or exhibition primarily in New Zealand; or
- (c) In the case of an advertisement in any radio or television transmission, the advertisement is targeted primarily at a New Zealand audience.
(4) Nothing in subsection (1) of this section shall apply to the publication by a tobacco products manufacturer of a tobacco product advertisement in a magazine that is intended for distribution only to employees of the manufacturer.
(5) Nothing in subsection (1) of this section shall apply to—
- (a) The exhibition, in any museum or art gallery, of any work or artifact:
- (b) The dissemination, broadcasting, or exhibition of any film, video recording, or sound recording, where—
  - (i) That film, video recording, or sound recording was made before the 16th day of December 1990; and
  - (ii) The tobacco product advertisement included in that film, video recording, or sound recording is in the form of a reference to, or a depiction of, a tobacco product trade mark that is only an incidental part of that film, video recording, or sound recording.

23 Exemptions for retailers and vending machines

(1) Notwithstanding anything in section 22, a retailer of tobacco products may do either or both of the following things:
- (a) [Repealed]
- (b) Subject to subsections (3) and (4), display, inside that retailer's place of business, any notice identifying the tobacco products that are available for purchase in that place and indicating their price:
- (c) Display the retailer's name or trade name on the exterior of the retailer's place of business, in accordance with regulations made under this Part, even though the name contains any word or expression signifying that any tobacco product is available in that place for purchase, so long as the name does not include the trade mark of a tobacco product or the company name of a tobacco products manufacturer.
(2) Subject to subsections (3) and (4), any person who offers for sale, by way of an automatic vending machine, any tobacco product may display, on the exterior of the vending machine, any notice identifying that tobacco product and indicating its price.
(3) Every notice to which subsection (1)(b) or subsection (2) applies must comply with the following requirements:
- (a) The notice must be no larger than 90mm by 55mm:
- (b) The background of the notice must be white, and all words, figures, or other material appearing on the notice must be black:
- (c) No material other than the following may appear on the notice:
  - (i) The name of the tobacco product (which may consist of or include a brand or brand variant):
  - (ii) Any logo, design, or similar device that is usually associated with that tobacco product:
  - (iii) A depiction of the package in which the tobacco product is customarily sold:
  - (iv) The quantity in which the tobacco product is sold (whether by weight or number):
  - (v) The price of the tobacco product.
(4) The combined area of all notices to which subsection (3) applies and that are displayed—
- (a) Inside a retailer's place of business; or
- (b) On the exterior of an automatic vending machine—
must not exceed, in total, 21cm by 29.7cm.
Subsection (1)(b) of the original section 23 was substituted, and subsection (1)(c) was repealed, as from 29 July 1997, by section 7(1) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Section 23 was substituted, as from 11 December 1998, by section 7(2) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (1) was amended, as from 10 December 2004, by section 16(a) Smoke-free Environments Amendment Act 2003 (2003 No 127) by substituting the words “either or both” for the words “all or any”.

Subsection (1)(a) was repealed, as from 10 December 2004, by section 16(b) Smoke-free Environments Amendment Act 2003 (2003 No 127).

23A Compliant product display

(1) A retailer of tobacco products must not expose a tobacco product for sale inside the retailer's place of business unless its exposure—
- (i) complies with this section; and
- (ii) complies with any regulations for the time being in force under section 39(1)(ia).
(2) The exposure of tobacco products for sale inside a retailer's place of business complies with this section if, and only if,—
- (a) no tobacco product exposed for sale is visible from outside the place; and
- (b) unless the place of business is a tobacconist's shop, not more than 100 tobacco packages are exposed for sale at any point of sale; and
- (c) unless the place of business is a tobacconist's shop, not more than 40 tobacco cartons are exposed for sale at any point of sale; and
- (d) not more than 2 tobacco packages of the same kind are exposed for sale at any point of sale; and
- (e) not more than 2 tobacco cartons of the same kind are exposed for sale at any point of sale; and
- (f) no tobacco package (other than a pouch pack of loose tobacco) with a face that has an area greater than 66 cm2 is exposed for sale; and
- (g) no pouch pack of loose tobacco with a face that has an area greater than 105 cm2 is exposed for sale; and
- (h) no tobacco carton with a face that has an area greater than 266 cm2 is exposed for sale; and
- (i) either—
  - (i) no tobacco product is exposed for sale within 1 metre of any children's product exposed for sale; or
  - (ii) if, because of the size of the place, it is not reasonably practicable to keep all tobacco products exposed for sale at least I metre from any children's product exposed for sale, the retailer has taken all reasonably practicable steps to ensure that every tobacco product exposed for sale that is within 1 metre of any children's product exposed for sale is as far away from the children's product as possible; and
- (j) no tobacco product is exposed for sale on any counter top or similar surface; and
- (k) there is displayed at each point of sale where tobacco products are exposed for sale a rectangular sign, with its longer sides horizontal and its shorter sides vertical, and the message “SMOKING KILLS Ka mate koe i to kai hikareti” printed in black across it—
  - (i) within a black rectangular border that is no wider than an upper case letter “i” in the point size used for the words “SMOKING KILLS”; and
  - (ii) on a white background within that border; and
  - (iii) in the type face known as Helvetica; and
  - (iv) in roman font; and
  - (v) with the words “SMOKING KILLS” printed centred, in upper case letters, in one line; and
  - (vi) with the words “Ka mate koe i to kai hikareti” printed centred, in upper case and lower case letters (as it is printed in this subparagraph) in one line—
    - (A) beneath the words “SMOKING KILLS”; and
    - (B) in a point size such that its risers are two-thirds the height of the words “SMOKING KILLS”; and
  - (vii) in a type that is clear and legible, of normal weight, and of such a point size that the words “Ka mate koe i to kai hikareti” do not touch the vertical elements of the border, but as nearly as possible take up the full width of the sign between them.
(3) The sign must have at least the lesser of the following areas:
- (a) 1 square metre:
- (b) 10% of the area of the display in which the tobacco products are exposed for sale.
(4) The sign may include the attribution “Ministry of Health Warning”, printed centred, in one line beneath the words “Ka mate koe i to kai hikareti”,—
- (a) in upper case and lower case letters (as it is set out above); and
- (b) in an italic font in the type face known as Helvetica; and
- (c) in a point size such that its risers are no more than half the height of the words “SMOKING KILLS”; and
- (d) otherwise in accordance with subsection (2)(k).
(5) The sign must not include anything that is not—
- (a) required by subsection (2)(k); or
- (b) authorised by subsection (4).
(6) For the purposes of subsection (2)(k), tobacco products are exposed for sale at a point of sale if they are exposed for sale—
- (a) in a display that forms part of a unit or counter of which that point of sale forms part; or
- (b) at a place that—
  - (i) is within 2 metres of that point of sale; and
  - (ii) is not closer to some other point of sale than to that point of sale.
Section 23A was inserted, as from 10 December 2004, by section 17 Smoke-free Environments Amendment Act 2003 (2003 No 127).

23B Exposure for sale

(1) For the purposes of sections 23(1) and 23A,—
- (a) a tobacco product is exposed for sale if the tobacco package or tobacco carton it is in is exposed for sale; and
- (b) a tobacco package or tobacco carton is exposed for sale inside a retailer's place of business if it is for sale, and any part of it is visible—
  - (i) from outside the place; or
  - (ii) from an area inside the place to which members of the public are allowed access.
(2) In determining for the purposes of section 23(1) in a visible stack are exposed for sale, the front package must be counted; but
- (a) if there are 4 or fewer other packages behind it that are exposed for sale, the other packages must not be counted; and
- (b) if there are 5 or more other packages behind it that are exposed for sale, the first 4 of the other packages must not be counted.
Section 23B was inserted, as from 11 December 2003, by section 18 Smoke-free Environments Amendment Act 2003 (2003 No 127).

24 Use of trade marks, etc, on goods other than tobacco products, or in relation to sponsored events

(1) No person shall use, otherwise than in a private capacity, a tobacco product trade mark—
- (a) On any article other than a tobacco product or a package or container in which a tobacco product is sold or shipped; or
- (b) For the purpose of advertising or identifying to the public—
  - (i) Any article other than a tobacco product; or
  - (ii) Any service, activity, or event; or
  - (iii) Any scholarship, fellowship, or other educational benefit,—
even though that person would be, but for this Act, entitled to use the trade mark on that article or for that purpose.
(2) Where a trade mark includes the company name, or part of the company name, of a manufacturer, importer, or distributor in New Zealand of any tobacco product, no person shall, otherwise than in a private capacity, use that company name for the purpose of advertising or identifying to the public—
- (a) Any article other than a tobacco product; or
- (b) Any service, activity, or event; or
- (c) Any scholarship, fellowship, or other educational benefit,—
even though that person would be, but for this Act, entitled to use that trade mark or company name for that purpose.
(3) No person shall distribute, sell, or offer or expose for sale any article, other than a tobacco product or a package or container in which a tobacco product is sold or shipped, that bears a trade mark of a tobacco product that is sold in New Zealand.

(4) Nothing in subsections (1) to (3) of this section shall apply to a trade mark or company name that, during the year ending with the 31st day of March 1990, was applied to tobacco products and other articles sold at retail in New Zealand if the estimated retail value of those other articles sold during that year exceeded one-quarter of the estimated retail value of those tobacco products sold during that year.
(5) Nothing in subsections (1) to (3) of this section shall apply to the use, by any person (other than a manufacturer, an importer, a distributor, or a retailer of any tobacco products, or a person acting on behalf of any such manufacturer, importer, distributor, or retailer), of a trade mark or company name for any purpose (other than for application to, or for use in connection with, tobacco products or smoking accessories) if the trade mark or company name—
- (a) Was in use in New Zealand for that purpose before the 17th day of May 1990; or
- (b) Was in use for that purpose at any time before that trade mark or company name was first used, in New Zealand, for application to, or in connection with, any tobacco product or smoking accessory.

25 Organising or promoting activity using trade mark, etc, of tobacco products

No manufacturer, importer, distributor, or retailer of tobacco products shall—
- (a) Organise or promote any organised activity that is to take place, in whole or in part, in New Zealand; or
- (b) Make any financial contribution towards any organised activity that is to take place, or is taking place, or has taken place, in whole or in part, in New Zealand; or
- (c) Make any financial contribution to any person in respect of—
  - (i) The organisation or promotion, by that person, of; or
  - (ii) The participation, by the person, in—
  any organised activity that is to take place, or is taking place, or has taken place, in whole or in part, in New Zealand—
where that organised activity involves the use, in the name of that activity, or on any article other than a tobacco product, of a tobacco product trade mark, or of a company name or any part of a company name included in that tobacco product trade mark.

26 Exemptions for participants in certain events

(1) Nothing in section 22 or section 24 or section 25 of this Act shall apply to the display, on any craft, of any tobacco product trade mark or the company name of any tobacco products manufacturer, where—
- (a) That craft is participating in an international race; and
- (b) The tobacco products manufacturer who manufactures that tobacco product, or whose company name is so displayed, is sponsoring, in whole or in part, the participation of that craft in that race; and
- (c) New Zealand is a port of call for that race.
(2) Notwithstanding anything in section 22 or section 24 or section 25 of this Act, the Minister may, by notice in writing, grant an exemption from any of the provisions of those sections in respect of the promotion of any international craft race where New Zealand is a port of call for that race.
(3) Notwithstanding anything in section 22 or section 24 or section 25 of this Act, where—
- (a) The Minister is satisfied that any competition is of international significance; and
- (b) Any part of that competition is to take place in New Zealand,—
the Minister may, by notice in writing, grant an exemption from any of those sections in respect of any participant in that competition (not being a participant who is a New Zealand resident) for the purpose of allowing that participant to fulfil any obligation imposed on that participant to acknowledge any sponsor (being an obligation incurred before that participant submitted that person's entry for that competition).
(4) The Minister may grant an exemption under subsection (2) or subsection (3) of this section either unconditionally or subject to such conditions as the Minister thinks fit.

(5) The Minister may from time to time, by notice in writing to the person to whom any exemption is granted under subsection (2) or subsection (3) of this section, amend or revoke that exemption.

26A Exemption for multinational sporting events

(1) In this section, multinational sporting event means any sporting event, or any series of sporting events,—
- (a) In which 3 or more countries are, or will be, represented; and
- (b) That is being held, or will be held, in 2 or more countries, including New Zealand.
(2) Notwithstanding anything in section 22 or section 24 or section 25 of this Act, the Minister may, by notice in writing, grant an exemption from any of the provisions of those sections in respect of—
- (a) The use, in the name of a multinational sporting event, of—
  - (i) A tobacco product trade mark; or
  - (ii) A company name, or any part of a company name, of any manufacturer, importer, or distributor of tobacco products; or
- (b) The advertisement of—
  - (i) A multinational sporting event; or
  - (ii) The fact that a multinational sporting event is organised or promoted or sponsored, in whole or in part, by any manufacturer, importer, or distributor of tobacco products; or
- (c) The use, on any article, of—
  - (i) A tobacco product trade mark; or
  - (ii) A company name, or any part of a company name, of any manufacturer, importer, or distributor of tobacco products—
  for the purpose of advertising or promoting or identifying to the public—
  - (iii) A multinational sporting event; or
  - (iv) The fact that a multinational sporting event is organised or promoted or sponsored, in whole or in part, by any manufacturer, importer, or distributor of tobacco products.
(3) The Minister may grant an exemption under subsection (2) of this section either unconditionally or subject to such conditions as the Minister thinks fit.

Section 26A was inserted, as from 12 June 1991, by section 2 Smoke-free Environments Amendment Act 1991 (1991 No 35).

27 Exemption for craft in emergencies

Where any craft on which is displayed any tobacco product trade mark or the company name of any tobacco products manufacturer is compelled, for reasons of health or safety, or for the preservation of life or property, to enter New Zealand, nothing in section 22 or section 24 or section 25 of this Act shall apply to the display, on that craft, of that tobacco product trade mark or that company name for as long as that craft is in New Zealand for any of those reasons.

28 Free distribution and rewards prohibited

(1) No manufacturer, distributor, importer, or retailer of tobacco products may,—
- (a) Distribute any tobacco product; or
- (b) Supply any tobacco product to any person for subsequent distribution; or
- (c) In the case of a retailer, supply any tobacco product to any person for the purpose of that retailer's business—
free of charge, or at a reduced charge.
(1A) For the purposes of subsection (1), a tobacco product is distributed or supplied at a reduced charge—
- (a) if the charge for the product itself is reduced; or
- (b) if—
  - (i) the product is distributed or supplied at a charge that is not or purports not to be reduced; but
  - (ii) some other item is supplied, free or at a reduced charge, together with the product.
(2) No person may—
- (a) Offer any gift or cash rebate, or the right to participate in any contest, lottery, or game, to the purchaser of a tobacco product in consideration for the purchase of that product, or to any person in consideration for the provision of evidence of such a purchase; or
- (b) 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) The purchase or sale of tobacco products by that retailer; or
  - (ii) The advertising of tobacco products inside that retailer's place of business; or
  - (iii) The location of tobacco products in a particular part of that retailer's place of business.
(3) [Repealed]
(4) Nothing in subsection (2) applies in respect of any payment or reward to any person who,—
- (a) With the authority of the Director-General or of some other person authorised for that purpose by the Director-General; and
- (b) For the purpose of monitoring compliance with the provisions of this Part,—
purchases or attempts to purchase any tobacco product.
Section 28 was substituted, as from 29 July 1997, by section 8 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (1A) was inserted, as from 10 December 2004, by section 19(1) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsection (3) was repealed, as from 11 December 2003, by section 19(2) Smoke-free Environments Amendment Act 2003 (2003 No 127).

29 Tobacco product not to be advertised or labelled as suitable for chewing, etc

(1) No person shall publish an advertisement for a tobacco product that directly or indirectly states or suggests that the product is suitable for chewing or for any other oral use (other than smoking).

(2) No person shall import for sale, sell, pack, or distribute any tobacco product labelled or otherwise described as suitable for chewing, or for any other oral use (other than smoking).

Sale and labelling

29A Sale of tobacco products with other products prohibited

(1) This subsection applies to a tobacco product if it is—
- (a) packed together with a product that is not a tobacco product; or
- (b) distributed or supplied, together with a product that is not a tobacco product, at a single price.
(2) No manufacturer, distributor, importer, or retailer of tobacco products may,—
- (a) distribute a tobacco product to which subsection (1) applies; or
- (b) supply a tobacco product to which subsection (1) applies to another person for later distribution; or
- (c) in the case of a retailer, supply a tobacco product to which subsection (1) applies to another person for the purpose of that retailer's business.
Sections 29A and 29B were inserted, as from 10 December 2004, by section 20 Smoke-free Environments Amendment Act 2003 (2003 No 127).

29B Restriction on use of automatic vending machines

(1) No person may—
- (a) permit an automatic vending machine that dispenses or is capable of dispensing tobacco products or herbal smoking products to be located in a place to which members of the public have access; or
- (b) permit a tobacco product or herbal smoking product 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—
- (a) 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
- (b) 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 a tobacco product or herbal smoking product to another person occurs is a party to the sale of that product to the other person.

Sections 29A and 29B were inserted, as from 10 December 2004, by section 20 Smoke-free Environments Amendment Act 2003 (2003 No 127).

30 Sale of tobacco products and herbal smoking products to people under 18 prohibited

(1) No person may sell a tobacco product or herbal smoking product 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.

(2A) 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 (within the meaning of section 2A of the Sale of Liquor Act 1989) 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.

(2B) Subsection (2A) does not affect the generality of subsection (2).
(3) It is not a defence to a charge in respect of a contravention of subsection (1)—
- (a) 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
- (b) 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.
(6) Every person who sells by retail a tobacco product or herbal smoking product must display clearly for the public a notice to the effect that the sale of tobacco products and herbal smoking products to people who are younger than 18 years is prohibited.

Section 30 was substituted, as from 29 July 1997, by section 9 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Section 30 was substituted, as from 11 December 2003, by section 21 Smoke-free Environments Amendment Act 2003 (2003 No 127).

30AA Supplying tobacco products or herbal smoking products 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),—
- (a) supply a tobacco product or herbal smoking product to a person younger than 18 years; or
- (b) supply a tobacco product or herbal smoking product 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) 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 (within the meaning of section 2A of the Sale of Liquor Act 1989) of the person to whom the product concerned 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)—
- (a) 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; or
- (b) 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 product concerned to any other person.

Section 30AA was inserted, as from 11 December 2003, by section 21 Smoke-free Environments Amendment Act 2003 (2003 No 127).

30AB Certain repeat offenders may be ordered not to sell tobacco products

(1) This section applies—
- (a) if a person—
  - (i) has been convicted of and is to be sentenced in respect of an offence against section 30(1) committed after the commencement of section 21 of the Smoke-free Environments Amendment Act 2003 (the repeat offence); and
  - (ii) within the 2 years before the conviction for the repeat offence was entered, had been convicted of an offence against section 30(1) (whether committed before or after that commencement); or
- (b) if a person has been convicted of and is to be sentenced in respect of an offence against section 36(7AA) (a non-compliance offence).
(2) When sentencing a person for a repeat offence or a non-compliance offence, the court may (in addition to any sentence it might impose and any other order in the nature of a penalty it might make) make an order—
- (a) prohibiting either or both of the following:
  - (i) the sale of tobacco products by or on behalf of the person:
  - (ii) the sale of tobacco products at a shop at which the offence occurred; or
- (b) prohibiting either or both of the following:
  - (i) the sale of tobacco products of a stated kind by or on behalf of the person:
  - (ii) the sale of tobacco products of a stated kind in the place in which the offence occurred; or
- (c) imposing any conditions or restrictions (or both) it thinks fit on either or both of the following:
  - (i) the sale of tobacco products by or on behalf of the person:
  - (ii) the sale of tobacco products at a shop at which the offence occurred.
(3) The order must state—
- (a) the date it takes effect (which may be the date on which it is made or a later date); and
- (b) the date it expires (which must be a date at least 4 weeks and no more than 3 months after the date it takes effect).
Section 30AB was inserted, as from 10 March 2004, by section 22 Smoke-free Environments Amendment Act 2003 (2003 No 127).

30A Restrictions on sale of certain tobacco products in small quantities

(1) In this section and section 36(7A), unless the context otherwise requires,—

Cigarette includes the tobacco product commonly known as a cigarillo

Loose cigarettes means cigarettes that are not contained in a package
Loose tobacco means—
- (a) Tobacco prepared for smoking in hand-rolled cigarettes:
- (b) Pipe tobacco.
(2) No person may—
- (a) Sell by retail; or
- (b) Offer for sale by retail—
loose cigarettes in amounts of fewer than 20 cigarettes.
(3) No manufacturer, importer, distributor, or retailer may sell or offer for sale—
- (a) Cigarettes in a package that contains fewer than 20 cigarettes; or
- (b) Loose tobacco in a package that contains less than 30 grams of loose tobacco.
(4) Nothing in subsection (2) or subsection (3)(a) applies in respect of cigars (other than cigarillos).

Section 30A was inserted, as from 29 July 1997, by section 9 Smoke-free Environments Amendment Act 1997 (1997 No 32). See section 15 of that Act as to the transitional provisions which state that nothing in section 30A(3) shall apply in respect of the sale or offering for sale, before 1 February 1998, of any package of cigarettes, or any package of tobacco, to which section 15 applies.

31 Limits on harmful constituents

No manufacturer or importer may offer for sale or export any tobacco product or herbal smoking product that
- (a) Contains, or generates in its smoke, a harmful constituent prohibited by regulations made under this Part; or
- (b) Contains, or generates in its smoke, harmful constituents in excess of the limits prescribed by regulations made under this Part, as determined in accordance with any tests so prescribed.
Section 31 was substituted, as from 29 July 1997, by section 10 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Section 31 was amended, as from 1 February 2005, by section 23 Smoke-free Environments Amendment Act 2003 (2003 No 127) by inserting the words “or herbal smoking product” after the words “tobacco product”.

32 Labelling and health messages for tobacco products

(1) A manufacturer, importer, distributor, or retailer must not sell a tobacco product or offer a tobacco product for sale unless—
- (a) the package containing it displays, in accordance with regulations under this Part, as many of the following things as the regulations require:
  - (i) a message relating to the effects of its use on health:
  - (ii) a list of the harmful constituents of the product:
  - (iii) if the tobacco product is intended for smoking, a list of the harmful constituents, and their respective quantities, present in the smoke:
  - (iv) whether as part of or in addition to any message relating to the effects of its use on health, a photograph or picture intended to have effect as a warning relating to the effects of its use on health; and
- (b) if the regulations so require, there is placed inside the package with the product a leaflet containing—
  - (i) information (prescribed by the regulations for tobacco products generally, or tobacco products of a class to which the product belongs) relating to the effects of the use of the product on health; and
  - (ii) if the tobacco product is intended for smoking, as much of the following information (stated, as the regulations may require, by reference to the class of tobacco product to which it belongs, or its brand as a tobacco product of any class or variant of a brand of a tobacco product of any class) as the regulations require:
    - (A) a list of the harmful constituents, and their respective quantities, present in the product:
    - (B) a list of the additives, and their respective quantities, present in the product:
    - (C) a list of the harmful constituents, and their respective quantities, present in the smoke.
(2) In subsection (1), harmful constituent means a substance declared by the regulations to be a harmful constituent for the purposes of that subsection.

(3) A person who sells a tobacco product from an automatic vending machine that can be seen from a place to which members of the public have access must display on the machine, in accordance with regulations under this Act, any health message required by or under this Act (even if the machine is accessible only by the person or his or her employees or agents).

(4) Subsection (3) does not authorise or excuse a contravention of section 29B.

Section 32 was substituted, as from 10 December 2004, by section 24 Smoke-free Environments Amendment Act 2003 (2003 No 127).

32AA Labelling and health messages for herbal smoking products

(1) No manufacturer, importer, distributor, or retailer may sell or offer for sale a herbal smoking product unless—
- (a) the package containing it displays, in accordance with regulations under this Part, as many of the following things as the regulations require:
  - (i) a message relating to the effects of the use of herbal smoking products on health:
  - (ii) a list of the harmful constituents, and their respective quantities, present in the product:
  - (iii) a list of the constituents, and their respective quantities, present in the product:
  - (iv) a list of the harmful constituents, and their respective quantities, present in the smoke:
  - (v) whether as part of or in addition to any message relating to the effects of the use of herbal smoking products on health, a photograph or picture intended to have effect as a warning relating to the effects of the use of the herbal smoking products on health; and
- (b) if the regulations so require, a leaflet containing either or both of the following (as the regulations may require) is placed inside the package with the herbal smoking products:
  - (i) information relating to the effects of the use of herbal smoking products on health:
  - (ii) a list of the harmful constituents, and their respective quantities, present in the smoke.
(2) In subsection (1), harmful constituent means a substance declared by the regulations to be a harmful constituent for the purposes of that subsection.

(3) A person who sells a herbal smoking product from an automatic vending machine that can be seen from a place to which members of the public have access must display on the machine, in accordance with regulations under this Act, any health message required by or under this Act (even if the machine is accessible only by the person or his or her employees or agents).

(4) Subsection (3) does not authorise or excuse a contravention of section 29B.

Section 32AA was inserted, as from 10 December 2004, by section 24 Smoke-free Environments Amendment Act 2003 (2003 No 127).

Code of practice relating to tobacco product advertising

This heading was inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).
This heading was repealed, as from 11 December 1998, by section 32I Smoke-Free Environments Act 1990 (1990 No 108).

32A Code of practice relating to tobacco product advertising

[Repealed]

Sections 32A to 32I were inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Sections 32A to 32H were repealed, as from 11 December 1998, by section 32I Smoke-Free Environments Act 1990 (1990 No 108).

32B Code to be approved by Minister

[Repealed]

Sections 32A to 32I were inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Sections 32A to 32H were repealed, as from 11 December 1998, by section 32I Smoke-Free Environments Act 1990 (1990 No 108).

32C Availability of code

[Repealed]

Sections 32A to 32I were inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Sections 32A to 32H were repealed, as from 11 December 1998, by section 32I Smoke-Free Environments Act 1990 (1990 No 108).

32D Commencement of code

[Repealed]

Sections 32A to 32I were inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Sections 32A to 32H were repealed, as from 11 December 1998, by section 32I Smoke-Free Environments Act 1990 (1990 No 108).

32E Proof of code

[Repealed]

Sections 32A to 32I were inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Sections 32A to 32H were repealed, as from 11 December 1998, by section 32I Smoke-Free Environments Act 1990 (1990 No 108).

32F Code deemed to be regulations for purposes of disallowance

[Repealed]

Sections 32A to 32I were inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Sections 32A to 32H were repealed, as from 11 December 1998, by section 32I Smoke-Free Environments Act 1990 (1990 No 108).

32G Amendment and revocation of code

[Repealed]

Sections 32A to 32I were inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Sections 32A to 32H were repealed, as from 11 December 1998, by section 32I Smoke-Free Environments Act 1990 (1990 No 108).

32H Regulations may require compliance with code

[Repealed]

Sections 32A to 32I were inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Sections 32A to 32H were repealed, as from 11 December 1998, by section 32I Smoke-Free Environments Act 1990 (1990 No 108).

32I Expiry of sections 32A to 32H

[Repealed]

Sections 32A to 32I and the preceding heading were inserted, as from 29 July 1997, by section 11 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Section 32I was repealed, as from 10 December 2004, by section 24 Smoke-free Environments Amendment Act 2003 (2003 No 127).

Testing, reports, and returns

This heading was repealed, as from 10 December 2004, by section 24 Smoke-free Environments Amendment Act 2003 (2003 No 127).

33 Annual testing for constituents

(1) This section applies to each product prescribed for the purposes of this section by regulations under this Part.
(2) Every manufacturer and every importer of a product to which this section applies must in each year conduct, in accordance with the regulations, either or both of the following (as the regulations require):
- (a) a test for the constituents of each brand of the product sold by the manufacturer or importer, and the respective quantities of those constituents:
- (b) if the product is intended to be smoked, a test for the constituents of the smoke of each brand of the product sold by the manufacturer or importer, and the respective quantities of those constituents.
(3) If the regulations require it, each variant of the brand must be tested separately.
(4) In this section and section 34, product means anything that is—
- (a) a tobacco product of any kind; or
- (b) herbal smoking products generally; or
- (c) herbal smoking products of any kind.
Sections 33 and 34 were substituted, as from 10 December 2004, by section 24 Smoke-free Environments Amendment Act 2003 (2003 No 127).

34 Director-General may require further testing

(1) In addition to the annual test or tests required by section 33, the Director-General may, by notice in writing to the manufacturer or importer of a product to which that section applies, require a further test or tests to be conducted.
(2) The further test or tests must be conducted, in accordance with the regulations referred to in section 33,—
- (a) in a laboratory nominated by the Director-General; but
- (b) at the expense in all respects of the manufacturer or importer.
(3) In any year, the Director-General must not require tests under this section in respect of more than 10% of the brands of products to which section 33 applies sold by a particular manufacturer or importer.

Sections 33 and 34 were substituted, as from 10 December 2004, by section 24 Smoke-free Environments Amendment Act 2003 (2003 No 127).

35 Returns and reports

(1) Every manufacturer and every importer of tobacco products must, not later than 31 January in each year, file with the Director-General, in the form and manner prescribed by regulations under this Part,—
- (a) a return showing—
  - (i) by class of tobacco product, or brand of tobacco product of any class, or variant of a brand of tobacco product of any class, (as the regulations may require) the weight of tobacco and of each additive used in the manufacture of the tobacco products sold by the manufacturer or importer during the previous year; and
  - (ii) the quantity of each brand, and of each variant of a brand, of tobacco product sold by the manufacturer or importer during the previous year; and
  - (iii) the recommended price of each brand, and of each variant of a brand, of tobacco product sold by the manufacturer or importer during the previous year; and
- (b) a report of the results of all tests that the manufacturer or importer conducted during the previous year for the purposes of section 33 or section 34.
(2) The Director-General—
- (a) must take all practicable steps to ensure that all returns and reports received under subsection (1) are publicly available on a website under the Director-General's control; and
- (b) may publish or make publicly available in any other way all or any part of any such return or report.
Section 35 was substituted, as from 1 February 2004, by section 25 Smoke-free Environments Amendment Act 2003 (2003 No 127).

Offences

36 Offences in respect of smoking products

(1) Every person who, without reasonable excuse, publishes any advertisement for a tobacco product in contravention of section 22 of this Act commits an offence and is liable,—
- (a) In the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or
- (b) In any other case, to a fine not exceeding $10,000.
(1A) A retailer of tobacco products who, without reasonable excuse, exposes a tobacco product for sale inside the retailer's place of business otherwise than in compliance with section 23A commits an offence and is liable to a fine not exceeding $10,000.
(2) Every person who, without reasonable excuse, uses any trade mark or company name in contravention of subsection (1) or subsection (2) of section 24 of this Act, 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,—
- (a) In the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or
- (b) In any other case, to a fine not exceeding $10,000.
(3) Every manufacturer, importer, distributor, or retailer of tobacco products who, in contravention of section 25 of this Act, organises or promotes any organised activity, or makes any financial contribution towards any organised activity, or makes any financial contribution to any other person in respect of the organisation or promotion, by that other person, of, or the participation, by that other person, in, any organised activity, commits an offence and is liable,—
- (a) In the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or
- (b) In any other case, to a fine not exceeding $10,000.
(4) Every manufacturer, distributor, importer, or retailer of tobacco products who distributes or supplies any tobacco product in contravention of section 28(1) of this Act commits an offence and is liable to a fine not exceeding $50,000.

(4A) It is a defence to a charge in respect of a contravention of section 28(1) if the person charged proves that he or she was merely giving a normal trade discount or normal trade rebate.
(5) Every person who offers any gift, cash rebate, or right of participation in contravention of section 28(2) of this Act, or who publishes any advertisement in contravention of section 29(1) of this Act, or who imports, sells, packs, or distributes any tobacco product in contravention of section 29(2) of this Act, commits an offence and is liable,—
- (a) In the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $10,000; or
- (b) In any other case, to a fine not exceeding $5,000.
(5A) Every person who, in contravention of section 29A(2), distributes a tobacco product to which section 29A(1) applies, or supplies a tobacco product to which section 29A(1) applies to another person for later distribution, or, in the case of a retailer, supplies a tobacco product to which section 29A(1) applies to another person for the purpose of that retailer's business commits an offence, and is liable,—
- (a) in the case of a manufacturer, an importer, or, a distributor, to a fine not exceeding $10,000; and
- (b) in any other case, to a fine not exceeding $5,000.
(5B) Every person commits an offence and is liable to a fine not exceeding $2,000 who, in contravention of section 29B,—
- (a) permits an automatic vending machine that dispenses or is capable of dispensing tobacco products or herbal smoking products to be located in a place to which members of the public have access; or
- (b) permits a tobacco product or herbal smoking product to be sold by way of an automatic vending machine in a place to which members of the public have access.
(6) Every person commits an offence and is liable to a fine not exceeding $2,000 who—
- (a) sells a tobacco product or herbal smoking product in contravention of section 30(1); or
- (b) supplies a tobacco product or herbal smoking product in a public place in contravention of section 30AA(1).
(7) Every retailer of tobacco products who fails, without reasonable excuse, to display the notice required by section 30(6) commits an offence and is liable to a fine not exceeding $2,000.
(7AA) Every person commits an offence who fails to comply with an order under section 30AB(2); and is liable,—
- (a) in the case of a person who is a body corporate, to a fine not exceeding $10,000; and
- (b) in the case of a person who is a not a body corporate, to a fine not exceeding $4,000.
(7A) Every person commits an offence and is liable to a fine not exceeding $2,000 who,—
- (a) Sells or offers for sale any cigarettes in contravention of section 30A(2); or
- (b) Being a manufacturer, importer, distributor, or retailer, sells or offers for sale any cigarettes or tobacco in contravention of section 30A(3).
(8) Every person commits an offence and is liable to a fine not exceeding $10,000 who, being a manufacturer or importer, offers for sale or export any tobacco product that—
- (a) Contains, or generates in its smoke, any harmful constituent prohibited by regulations made under this Part for the purposes of section 31(a); or
- (b) Contains, or generates in its smoke, any harmful constituent in excess of the level permitted by regulations made under this Part for the purposes of section 31B(b), as determined in accordance with any tests so prescribed.
(9) Every manufacturer, importer, distributor, or retailer of tobacco products who sells or offers for sale any tobacco product knowing that it contravenes section 32(1) of this Act commits an offence and is liable,—
- (a) In the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $10,000; or
- (b) In the case of a retailer, to a fine not exceeding $4,000.
(9A) Every manufacturer, importer, distributor, or retailer of herbal smoking products who sells or offers for sale a herbal smoking product knowing that it contravenes section 32AA(1) commits an offence and is liable,—
- (a) in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $10,000; and
- (b) in the case of a retailer, to a fine not exceeding $4,000.
(10) Every person who offers for sale, by way of an automatic vending machine, any tobacco product and who, in contravention of section 32(3) or section 32AA(3), fails, without reasonable excuse, to display on that vending machine such health message as is required by or under this Act commits an offence and is liable to a fine not exceeding $4,000.
(11) Every manufacturer or importer of tobacco products who fails, without reasonable excuse,—
- (a) To conduct any test required by section 33(2) of this Act; or
- (b) To conduct any further test required under section 34 of this Act; or
- (c) To submit any return required by section 35(1)(a) of this Act; or
- (d) To submit any report required by section 35(1)(b) of this Act,—
commits an offence and is liable to a fine not exceeding $10,000.
The heading to section 36 was amended, as from 11 December 2003, by section 26(1) Smoke-free Environments Amendment Act 2003 (2003 No 127) by substituting the word “smoking” for the word “tobacco”.

Subsection (1A) was inserted, as from 11 December 2003, by section 26(2) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsection (4A) was inserted, as from 11 December 2003, by section 26(3) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsections (5A) and (5B) were inserted, as from 10 December 2004, by section 26(4) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsection (6) was substituted, as from 29 July 1997, by section 12 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (6) was substituted, as from 11 December 2003, by section 26(5) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsections (7) and (8) were substituted, and subsection (7A) was inserted, as from 29 July 1997, by section 12 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (7AA) was inserted, as from 10 March 2004, by section 26(6) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsection (9A) was inserted, as from 10 December 2004, by section 26(7) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsection (10) was amended, as from 10 December 2004, by section 26(8) Smoke-free Environments Amendment Act 2003 (2003 No 127) by substituting the words “section 32(3) or section 32AA(3)” for the words “section 32(3) of this Act”.

36A Toy tobacco products

(1) No person may sell a toy tobacco product to a person younger than 18 years.

(2) Every person who sells a toy tobacco product to a person younger than 18 years in contravention of subsection (1) commits an offence, and is liable to a fine not exceeding $2000.

(3) 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.

(4) For the purposes of subsection (3), a person charged in respect of a contravention of subsection (1) who proves that he or she sighted an evidence of age document (within the meaning of section 2A of the Sale of Liquor Act 1989) 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.

(5) Subsection (4) does not affect the generality of subsection (3).
(6) It is not a defence to a charge in respect of a contravention of subsection (1)—
- (a) 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
- (b) 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.
Section 36A was inserted, as from 11 December 2003, by section 27 Smoke-free Environments Amendment Act 2003 (2003 No 127).

37 Enforcement

(1) It shall be the duty of the Director-General to enforce the provisions of this Part of this Act.

(2) No prosecution for an offence against any provision of this Part of this Act shall be commenced except on the information of the Director-General or of some other person authorised for that purpose by the Director-General.

(3) Notwithstanding anything in section 14 of the Summary Proceedings Act 1957, any information in respect of any offence against any provision of this Part of this Act may be laid at any time within 1 year after the time when the matter of the information arose.

38 Liability of employees, employers, agents, and principals

(1) For the purposes of this Part, every person is deemed to publish a tobacco product advertisement, whether he or she does so on his or her own account or as the agent or employee of any other person.

(2) Anything done by a person as the employee of another person is, for the purposes of an offence against section 36(6) in respect of a contravention of section 30(1), to be treated as done by that other person as well as by the first-mentioned person, whether or not it was done with that other person's knowledge or approval.

(3) Anything done by a person as the agent of another person is, for the purposes of an offence against section 36(6) in respect of a contravention of section 30(1), to be treated as done by that other person as well as by the first-mentioned person, unless it is done without that other person's express or implied authority, precedent or subsequent.

Section 38 was substituted, as from 29 July 1997, by section 13 Smoke-free Environments Amendment Act 1997 (1997 No 32).

Miscellaneous provisions

39 Regulations

(1) The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
- (a) Prescribing forms, certificates, notices, leaflets, signs, particulars, and notifications, and the persons by whom and the persons to whom any such forms, certificates, notices, leaflets, signs, particulars, and notifications are to be supplied:
- (b) Prescribing records and registers for the purposes of this Part of this Act; prescribing the manner in which and the period during which any such records and registers are to be kept; and prescribing the persons to whom, and the conditions on which, any such records and registers may be available for searching, inspection, and copying:
- (c) Prescribing the form and manner in which tobacco products may be identified and depicted on the exterior of vending machines:
- (d) [Repealed]
- (e) Prescribing the form, size, and content of information and messages to be displayed with, on, or in packages of, tobacco products or herbal smoking products, or on automatic vending machines that dispense tobacco products; and prescribing the circumstances and manner in which the information and messages are to be so displayed:
- (f) Prescribing the class or classes of tobacco products or herbal smoking products to which section 33 of this Act is to apply, and regulating the tests that are to be conducted under that section:
- (g) Specifying harmful constituents of tobacco products or herbal smoking products for the purposes of this Part:
- (ga) Prohibiting harmful constituents of tobacco products or herbal smoking products for the purposes of section 31(a):
- (h) Prescribing the method of determining the constituents of tobacco products or herbal smoking products, and the smoke produced from their combustion:
- (i) Prescribing the form and manner in which returns and reports are to be filed under section 35 of this Act:
- (ia) prescribing for the purposes of section 23(1)(a)(ii) requirements with which the exposure of tobacco products for sale in a retailer's place of business must comply:
- (j) Providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Part of this Act or its due administration.
(3) Regulations under subsection (1)(ia) may prescribe requirements of either or both of the following kinds:
- (a) requirements that are not of the same kind as those in section 23A:
- (b) requirements that are of the same kind as, but are more stringent than, those in section 23A.
(4) Regulations under subsection (1)(ia) must be made on the recommendation of the Minister.
(5) The Minister must not recommend the making of regulations under subsection (1)(ia) without having first consulted—
- (a) organisations that, in the Minister's opinion, represent the interests of retailers of a kind who customarily sell tobacco products; and
- (b) every organisation (if any) that is known to the Minister to represent the interests of manufacturers, importers, or wholesalers of tobacco products; and
- (c) every manufacturer, importer, or wholesaler of tobacco products that is known to the Minister—
  - (i) to be likely to be substantially affected by the regulations; and
  - (ii) not to be represented by an organisation consulted under paragraph (b).
(6) Regulations made under subsection (1)(ia) must come into force no earlier than the day 6 months after the date on which they are made.
(7) This subsection applies to regulations under this section if they are the first regulations made after the commencement of section 28 of the Smoke-free Environments Amendment Act 2003 that (substantively, or by amending existing regulations)—
- (a) require tobacco products sold or offered for sale to display a photograph or picture intended to have effect as a warning relating to the effects of their use on health; or
- (b) require a leaflet to be placed inside packages of tobacco products sold or offered for sale; or
- (c) require herbal smoking products sold or offered for sale to display a message or list; or
- (d) require herbal smoking products sold or offered for sale to display a photograph or picture intended to have effect as a warning relating to the effects of their use on health; or
- (e) require a leaflet to be placed inside packages of herbal smoking products sold or offered for sale, or a warning relating to the effects of their use on health; or
- (f) require manufacturers and importers of herbal smoking products to conduct either or both of the following:
  - (i) a test for the constituents of each brand of the product sold by the manufacturers or importers, and the respective quantities of those constituents:
  - (ii) a test for the constituents of the smoke of each brand of the product sold by the manufacturers or importers that is intended to be smoked, and the respective quantities of those constituents; or
- (g) require manufacturers and importers of tobacco products or herbal smoking products conducting tests for the constituents of each brand sold by the manufacturers or importers, and the respective quantities of those constituents, to test each variant of the brand separately; or
- (h) require manufacturers and importers of tobacco products or herbal smoking products conducting tests for the constituents of the smoke of each brand of the product sold by the manufacturers or importers that is intended to be smoked, and the respective quantities of those constituents, to test each variant of the brand separately; or
- (i) require manufacturers and importers of tobacco products to file with the Director-General returns showing all additives used in the manufacture of the tobacco products sold by the manufacturer or importer; or
- (j) require manufacturers and importers of tobacco products to file with the Director-General returns showing by brand variant—
  - (i) the weight of tobacco (or the weight of tobacco and of each additive) used in the manufacture of the tobacco products sold by the manufacturer or importer; and
  - (ii) the quantity of each variant of a brand of tobacco product sold by the manufacturer or importer; and
  - (iii) the recommended price of each variant of a brand of tobacco product sold by the manufacturer or importer during the previous year.
(8) If regulations to which subsection (7) applies are made after 31 January and before 1 July in any year, they must come into force no sooner than 1 February in the next year.

(9) If regulations to which subsection (7) applies are made after 30 June in any year and before 1 February in the next year, they must come into force no sooner than 1 February in the year after that next year.

(2) [Repealed]

Subsection (1)(a) was substituted, as from 29 July 1997, by section 14(1) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (1)(d) was substituted, as from 29 July 1997, by section 14(2) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (1)(d) was repealed, as from 11 December 1998, by section 7(3)(b) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (1)(e) was amended, as from 10 December 2004, by section 28(1)(a) Smoke-free Environments Amendment Act 2003 (2003 No 127) by inserting the words “or herbal smoking products,” after the words “tobacco products” where they first occur.

Subsection (1)(f) was amended, as from 10 December 2004, by section 28(1)(b) Smoke-free Environments Amendment Act 2003 (2003 No 127) by inserting the words “or herbal smoking products” after the words “tobacco products”.

Subsection (1)(g) was substituted, as from 29 July 1997, by section 14(3) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (1)(g) was amended, as from 10 December 2004, by section 28(1)(c) Smoke-free Environments Amendment Act 2003 (2003 No 127) by inserting the words “or herbal smoking products” after the words “tobacco products”.

Subsection (1)(ga) was inserted, as from 29 July 1997, by section 14(3) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsection (1)(ga) was amended, as from 10 December 2004, by section 28(1)(d) Smoke-free Environments Amendment Act 2003 (2003 No 127) by inserting the words “or herbal smoking products” after the words “tobacco products”.

Subsection (1)(h) was amended, as from 10 December 2004, by section 28(1)(e) Smoke-free Environments Amendment Act 2003 (2003 No 127) by inserting the words “or herbal smoking products,” after the words “tobacco products”.

Subsection (1)(ia) was inserted, as from 10 December 2004, by section 28(2) Smoke-free Environments Amendment Act 2003 (2003 No 127).

Subsection (2) was inserted, as from 16 December 1990, by section 2 Smoke-free Environments Amendment Act 1990 (1990 No 131).

Subsection (2) was repealed, as from 29 July 1997, by section 14(4) Smoke-free Environments Amendment Act 1997 (1997 No 32).

Subsections (3) to (9) were inserted, as from 10 December 2004, by section 28(3) Smoke-free Environments Amendment Act 2003 (2003 No 127).

40 Transitional provisions

(1) Nothing in section 24(3) of this Act shall apply in respect of the distribution or sale before the 1st day of January 1996 of any article that was—
- (a) Manufactured before the 17th day of May 1990; or
- (b) Ordered before the 17th day of May 1990 from the manufacturer or distributor otherwise than by the placing of a standing order that required confirmation, or that was subject to cancellation, after that date.
(2) Notwithstanding anything in section 22 or section 24 or section 25 of this Act, where it is so required by a contract entered into before the 17th day of May 1990, the name of any manufacturer or importer of tobacco products or the trade mark of any tobacco product may be used until the close of the 30th day of June 1995, otherwise than in association with a tobacco product, in a representation to the public—
- (a) That promotes or is associated with an organised activity; or
- (b) That acknowledges financial or other contributions made by the manufacturer or importer of the tobacco product toward any such activity.
(3) The first reports required by section 35(1)(b) of this Act shall be submitted to the Director-General—
- (a) By the 31st day of January 1991, in the case of cigarettes; or
- (b) By the 31st day of January 1992, in the case of cigarette tobacco; or
- (c) By the date specified by the Director-General by notice in writing to the manufacturer or importer, in the case of any other tobacco product.
Subsection (2) was amended, as from 21 March 1993, by section 2 Smoke-free Environments Amendment Act 1993 (1993 No 5) by substituting the expression “1995” for the expression “1993”.

41 Amendment, repeals, and revocations

(1) [Repealed]

(2) [Repealed]

(3) [Repealed]

(4) [Repealed]

(5) Part 6A of the Toxic Substances Regulations 1983 (comprising regulations 46A to 46C) (as substituted by regulation 3 of the Toxic Substances Regulations 1983, Amendment No 2) is hereby revoked.

(6) Regulation 3 of the Toxic Substances Regulations 1983, Amendment No 2 is hereby revoked.

Subsections (1) to (4) were repealed, as from 2 July 2001, by section 150(1) Hazardous Substances and New Organisms Act 1996 (1996 No 30). See Parts 11 to 16 of that Act (comprising sections 151 to 259) as to the transitional provisions. See clause 2 Hazardous Substances and New Organisms Act Commencement Order 2001 (SR 2001/111).

Part 2A
Powers of enforcement officers

Part 2A (comprising sections 41A to 41F) was inserted, as from 10 March 2004, by section 29 Smoke-free Environments Amendment Act 2003 (2003 No 127).

41A Powers of entry and inspection

(1) This section applies to a place if—
- (a) this Act imposes duties, restrictions, or prohibitions in respect of places of a kind to which it belongs; or
- (b) there is carried out in it, regularly or from time to time, an activity in respect of which this Act imposes duties, restrictions, or prohibitions.
(2) An enforcement officer may at any reasonable time enter a place if—
- (a) he or she believes on reasonable grounds that it is a place to which this section applies; and
- (b) it is not a dwellinghouse or other residential accommodation.
(3) An enforcement officer who enters a place under subsection (2) may do any or all of the following things:
- (a) bring a still or video camera, a device for taking samples of air, or both, with him or her:
- (b) inspect the place:
- (c) take photographs or videos with any camera he or she brings with him or her:
- (d) take samples of the air in the place with any device for that purpose he or she brings with him or her:
- (e) if the enforcement officer believes on reasonable grounds that the place is a place where tobacco products or herbal smoking products are sold from time to time,—
  - (i) exercise the powers given by section 41B:
  - (ii) inspect any advertising or display material relating to tobacco products on display in the place, or on the outside of a building containing the place.
(4) An enforcement officer exercising powers under this section may be accompanied by a member of the police.
(5) Subsection (2) does not prevent an enforcement officer from entering a dwellinghouse or other residential accommodation—
- (a) under authority given by or under an enactment other than this section; or
- (b) with the consent of an occupier.
Part 2A (comprising sections 41A to 41F) was inserted, as from 10 March 2004, by section 29 Smoke-free Environments Amendment Act 2003 (2003 No 127).

41B Requirement to give identifying information

(1) An enforcement officer who at any time believes on reasonable grounds that within the previous 14 days tobacco products or herbal smoking products have been sold to a person younger than 18 years in a place where tobacco products or herbal smoking products are sold from time to time—
- (a) may, while the person the officer believes on reasonable grounds to have sold the products is in the place, require the person to give the officer his or her name and address; and
- (b) may require a person in the place who appears to be in charge of the place or any part of it to give the officer the name and address of (or, if the address is not within the person's knowledge, the name and any other identifying information within the person's knowledge relating to) any person the officer believes on reasonable grounds to have sold the products other than a person in charge of the place.
(2) An enforcement officer who suspects that a person is younger than 17 years must not under subsection (1)(a) require the person to give the officer his or her name and address unless—
- (a) there is no other person in the place concerned who appears to be in charge of it; or
- (b) there is another person in the place who appears to be in charge of it, but the enforcement officer suspects that that person is also younger than 17 years.
(3) An enforcement officer who suspects that a person is younger than 17 years must not under subsection (1)(b) require the person to give the officer the name and address of (or name and other identifying information relating to) any other person if the other person is in the place concerned and appears to be 17 years old or older.

Part 2A (comprising sections 41A to 41F) was inserted, as from 10 March 2004, by section 29 Smoke-free Environments Amendment Act 2003 (2003 No 127).

41C Purposes for which powers may be used

(1) The powers given by section 41A must be used only for, and only to the extent necessary for, the following purposes:
- (a) finding out whether this Act is being complied with in and in respect of the place entered:
- (b) finding out the extent to which this Act is not being complied with in or in respect of the place entered:
- (c) exercising the powers given by section 41B.
(2) The powers given by section 41B must be used only for, and only to the extent necessary for, finding out the name and address of (or, if the address is not within the knowledge of the person asked, the name and any other identifying information within the person's knowledge relating to) a person the enforcement officer concerned believes to have sold tobacco products or herbal smoking products to a person younger than 18 years in a place where tobacco products or herbal smoking products are sold from time to time.

(3) This section does not prevent an enforcement officer from using in proceedings for an offence against this Act evidence obtained during the lawful exercise of any of the powers given by sections 41A and 41B.

Part 2A (comprising sections 41A to 41F) was inserted, as from 10 March 2004, by section 29 Smoke-free Environments Amendment Act 2003 (2003 No 127).

41D Duties of enforcement officers

(1) An enforcement officer exercising powers under section 41A in respect of or in a place,—
- (a) if a person in charge of the place is present on initial entry, must identify himself or herself to the person in charge as an enforcement officer; and
- (b) if asked by a person in charge to do so, must produce to the person evidence of identity, his or her instrument of appointment as an enforcement officer, or both.
(2) An enforcement officer exercising powers under section 41B in respect of a person,—
- (a) must identify himself or herself to the person as an enforcement officer; and
- (b) if asked by the person to do so, must produce to the person evidence of identity, his or her instrument of appointment as an enforcement officer, or both.
Part 2A (comprising sections 41A to 41F) was inserted, as from 10 March 2004, by section 29 Smoke-free Environments Amendment Act 2003 (2003 No 127).

41E Offences in respect of enforcement officers

Every person commits an offence, and is liable on summary conviction to a fine not exceeding $1,000, who—
- (a) intentionally obstructs, hinders, or resists an enforcement officer exercising or attempting to exercise powers under section 41A or section 41B; or
- (b) intentionally fails to comply with a requirement under section 41B; or
- (c) when required under section 41B to give information, gives information the person knows to be false or misleading.
Part 2A (comprising sections 41A to 41F) was inserted, as from 10 March 2004, by section 29 Smoke-free Environments Amendment Act 2003 (2003 No 127).

41F Enforcement

(1) It is the Director-General's duty to enforce this Part.

(2) An information in respect of an offence against this Part must be laid by the Director-General or a person authorised by the Director-General.

(3) An information in respect of an offence against this Part may be laid at any time within 1 year after the time the matter it relates to arose.

(4) Subsection (3) overrides section 14 of the Summary Proceedings Act 1957.

Part 2A (comprising sections 41A to 41F) was inserted, as from 10 March 2004, by section 29 Smoke-free Environments Amendment Act 2003 (2003 No 127).

Part 3
Health Sponsorship Council

42 Meaning of sponsorship

(1) In this Part of this Act, sponsorship means, in broad terms, the provision of assistance by the Council to any person or organisation and, in return, the promotion by that person or organisation of health and healthy lifestyles in a manner agreed by the Council.
(2) Without limiting the generality of the term, such assistance by the Council may take the form of—
- (a) Money, whether by way of grant or otherwise; or
- (b) Goods and services; or
- (c) Trophies, prizes, awards, and scholarships.
(3) Also, without limiting the generality of the term, such promotion by the person or organisation receiving assistance may take the form of—
- (a) Publicising messages relating to health and healthy lifestyles; or
- (b) Publicising messages relating to ill-health and unhealthy lifestyles; or
- (c) Promoting the aims and objectives of the Council.

43 Council established

(1) There is hereby established a council, to be known as the Health Sponsorship Council.

(2) The Council is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.

(3) The Crown Entities Act 2004 applies to the Council except to the extent that this Act expressly provides otherwise.

Subsection (2) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsection (3) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

44 Principal functions of Council

(1) The principal functions of the Council shall be—
- (a) To promote health and to encourage healthy lifestyles, whether through the provision of sponsorship or otherwise; and
- (b) [Repealed]
(2) For the purposes of its principal functions, the Council may provide sponsorship to—
- (a) Any person or organisation involved in sports participation, artistic endeavour, cultural pursuits, or recreational activities; or
- (b) Any person or organisation involved in arranging any sporting, artistic, or recreational activity; or
- (c) Any person or organisation in accordance with section 56 of this Act.
(3) The Council also has any other functions conferred on it by the Minister in accordance with section 112 of the Crown Entities Act 2004.

Subsection (1)(b) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsection (3) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

45 Membership of Council

(1) The Council must have no fewer than 3, and no more than 6, members.

(2) Members of the Council are the board for the purposes of the Crown Entities Act 2004.

(3) [Repealed]

(4) [Repealed]

Subsections (1) and (2) were substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

Subsections (3) and (4) were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

46 Term of office of members of Council

[Repealed]

Sections 46 to 48 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

47 Meetings of Council

[Repealed]

Sections 46 to 48 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

48 Conflict of interest

[Repealed]

Sections 46 to 48 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

49 Council to appoint Director

(1) The Council shall appoint and employ a suitably qualified person to be the chief executive of the Council.

(2) [Repealed]

Subsection (1) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “chief executive” for the word “Director”.

Subsection (2) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

50 Other staff

[Repealed]

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

51 Council may appoint advisory and technical committees

[Repealed]

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

52 Council may co-opt specialist advice

[Repealed]

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

53 Remuneration and allowances for members of Council and committees

[Repealed]

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

54 Salaries, etc., to be paid out of funds of Council

[Repealed]

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

55 Powers of Council

[Repealed]

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

56 Council to provide alternative sponsorship

[Repealed]

Subsection (2)(a)(ii) was amended, as from 21 March 1993, by section 3 Smoke-free Environments Amendment Act 1993 (1993 No 5) by substituting the expression “1995” for the expression “1993”.

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

57 Minister may give Council directions

[Repealed]

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

58 Council to submit annual budget and plans for Minister's approval

[Repealed]

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

59 Funds of Council

[Repealed]

Sections 50 to 59 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

60 Further provisions relating to funds

(1) Any funds received by the Council in one year and not expended by the Council in that year shall, without further appropriation by Parliament, be available to, and may be expended by, the Council, in any subsequent year.

(2) Subject to subsection (3) of this section, the Council shall not commit itself to expend any money by way of sponsorship unless it has the money in hand at the time.

(3) The Council may in any year commit itself to expend by way of sponsorship in the next succeeding year in aggregate up to 25 percent of the amount of the money appropriated by Parliament for the purposes of the Council for the current year.

61 Liability of Council and members

(1) The liability of the Council shall be limited to the aggregate value of its assets, including all money standing to its credit at a bank, and all money to which it is entitled by way of repayment of any loan.

(2) [Repealed]

Subsection (2) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

62 Accounts

[Repealed]

Section 62 was repealed, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).

62A Crown entity

[Repealed]

Section 62A was inserted, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).

Subsection (2) was substituted, as from 1 July 2001, by section 53 Public Audit Act 2001 (2001 No 10).

Sections 62A to 64 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

63 Annual reports

[Repealed]

Subsection (2)(d) was amended, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142) by omitting the word “; and”.

Subsection (2)(e) was repealed, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).

Subsection (3) was substituted, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).

Subsection (4) was repealed, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).

Sections 62A to 64 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

64 Ombudsmen Act 1975 amended

[Repealed]

Sections 62A to 64 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

65 Films Act 1983 amended

[Repealed]

Section 65 was repealed, as from 1 October 1994, by section 150(2) Films, Videos, and Publications Classification Act 1993 (1993 No 94).

1General
2About this eprint
3List of amendments incorporated in this eprint (most recent first)

Notes

1 General

This is an eprint of the Smoke-free Environments Act 1990. It incorporates all the amendments to the Act as at 1 January 2009. The list of amendments at the end of these notes specifies all the amendments incorporated into this eprint since 3 September 2007. Relevant provisions of any amending enactments that contain transitional, savings, or application provisions are also included, after the Principal enactment, in chronological order.

2 About this eprint

This eprint has not been officialised. For more information about officialisation, please see “Making online legislation official” under “Status of legislation on this site” in the About section of this website.

3 List of amendments incorporated in this eprint (most recent first)

Public Transport Management Act 2008 (2008 No 87): section 63(2)

Income Tax Act 2007 (2007 No 97): section ZA 2(1)

Education Amendment Act 2006 (2006 No 19): section 60(1)

Land Transport Amendment Act 2005 (2005 No 77): section 95(6)

Smoke-free Environments Act 1990

Smoke-free Environments Act 1990

Smoke-free Environments Act 1990

Note

Contents

1 Short Title and commencement

2 Interpretation

3 Act binds the Crown

Part 1Smoke-free workplaces and public areas

4 Purposes of this Part

5 Smoking in workplaces prohibited

5A Employer may permit smoking in vehicle with consent of users

6 Dedicated smoking rooms in hospital care institutions, residential disability care institutions, and rest homes

6A Smoking in prison cells

7 Duties of employer

7A Smoking prohibited at schools and early childhood education and care centres

8 Smoking prohibition on aircraft

9 Smoking restricted in passenger service vehicles

10 Application of Act to ships

11 Smoking prohibited in certain travel premises

12 Smoking on licensed premises

13 Smoking in restaurants

13A Smoking in casinos

13B Smoking in certain gaming machine venues

14 Enforcement officers

15 Complaints relating to workplace smoking

16 Complaints to Director-General

17 Offences in respect of smoking

17A Penalties

18 Prosecution of offences

19 Protection of persons acting under authority of Act

20 Saving of powers to make bylaws

20A Health and Safety in Employment Act 1992 not affected

Part 2Control of smoking products

21 Purpose of this Part

Promotion and advertising

22 Advertising of tobacco products

23 Exemptions for retailers and vending machines

23A Compliant product display

23B Exposure for sale

24 Use of trade marks, etc, on goods other than tobacco products, or in relation to sponsored events

25 Organising or promoting activity using trade mark, etc, of tobacco products

26 Exemptions for participants in certain events

26A Exemption for multinational sporting events

27 Exemption for craft in emergencies

28 Free distribution and rewards prohibited

29 Tobacco product not to be advertised or labelled as suitable for chewing, etc

Sale and labelling

29A Sale of tobacco products with other products prohibited

29B Restriction on use of automatic vending machines

30 Sale of tobacco products and herbal smoking products to people under 18 prohibited

30AA Supplying tobacco products or herbal smoking products to people under 18 prohibited

30AB Certain repeat offenders may be ordered not to sell tobacco products

30A Restrictions on sale of certain tobacco products in small quantities

31 Limits on harmful constituents

32 Labelling and health messages for tobacco products

32AA Labelling and health messages for herbal smoking products

Code of practice relating to tobacco product advertising

32A Code of practice relating to tobacco product advertising

32B Code to be approved by Minister

32C Availability of code

32D Commencement of code

32E Proof of code

32F Code deemed to be regulations for purposes of disallowance

32G Amendment and revocation of code

32H Regulations may require compliance with code

32I Expiry of sections 32A to 32H

Testing, reports, and returns

33 Annual testing for constituents

34 Director-General may require further testing

35 Returns and reports

Offences

36 Offences in respect of smoking products

36A Toy tobacco products

37 Enforcement

38 Liability of employees, employers, agents, and principals

Miscellaneous provisions

39 Regulations

40 Transitional provisions

41 Amendment, repeals, and revocations

Part 1
Smoke-free workplaces and public areas

Part 2
Control of smoking products

Part 2A
Powers of enforcement officers

Part 3
Health Sponsorship Council