Smoke Free 10 years on - Paul Hickey Presented on Thursday 5th June 2014.

1. Challenges in Enforcement of
Tobacco Control Legislation
Paul Hickey
National Tobacco Control Office

2. The Law/MOU
Legal Challenges
Specific court cases
Section 47 – smokefree
Section 45 – sales to minors
Section 36 – promotion
Issues
 “Dark Market” Promotion
 New/“Novel” tob. product
 Penalties/ removals
Overview - Challenges in TC Enforcement

3. Memorandum of Understanding
 Health Services Executive and
Health and Safety Authority
 Prevention and control of exposure
of ETS
 Section 47 PHTA
 Health safety welfare at work at
1989
 Avoid duplication of inspection

4. Smokefree – PHTA Section 47
16.—The Principal Act is amended by the substitution of the
following section for section 47:
‘‘47.—(1) Subject to subsection (7), the smoking of a tobacco product
in a specified place is prohibited.
(7) This section shall not apply to—
(c) subject to paragraph (d), a place or premises, or a part of a
place or premises, that is wholly uncovered by any roof,
whether fixed or movable,
(d) an outdoor part of a place or premises covered by a fixed
or movable roof, provided that not more than 50 per cent of
the perimeter of that part is surrounded by one or more walls
or similar structures inclusive of windows, doors, gates or
other means of access to or egress from that part),

5. Legal challenge to Tobacco Act
 Constitutional challenge to the PHTA 2002 lead to the
Public Health Tobacco (Amendment) Act 2004 and
commencement of Sections 46 and 47 (Smokefree)
 Tobacco industries challenge to the Public Health
Tobacco Acts
 Discontinued on the doorsteps of the court
 Full Legal costs awarded to the State
 Allowed for commencement of the legislation including
those sections providing for a total ban on point of
sale advertising

6. Smokefree Workplace Implementation
 Active enforcement by Environmental Health
Officers under the National Inspection
Programme in the last 10 years has played a
hugely important role in bedding in the smoke-
free workplace legislation
 At the introduction of the ban 35,000+
inspections carried out annually by EHOs
 98% compliance
 266 cases 275 convictions

7. Smokefree Prosecutions in last 10 years
* To March 2014
Prosecutions 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
*
2014
Total
total No. Cases 13 39 35 43 24 25 13 21 17 23 13 266
total no. Convictions 16 45 37 47 19 19 11 22 13 32 12 273
total no. Probation Act 2 3 4 2 6 3 2 5 4 13 1 45
total no. Dismission/Struck Out 0 1 4 2 2 6 5 4 7 7 3 41
total no. of cases dismissed 0 1 4 2 2 6 3 1 1 1 1 22
no. related to Licensed Premises 12 32 31 38 17 18 11 17 17 23 13 229

8. Fibber Magees Bar, Eyre Square, Galway

9. Fibber Magee’s – Case Study
 Major challenge / Potential to undermine success
 Orchestrated – Other pubs involved & potential to
mushroom
 Inspectors confronted with PHOTOGRAHER & FILM
CREW !!! (TV footage used in evidence)
 Night inspections – large numbers smoking
 Legal proceedings
 Notice of intent to seek HC Injunction
 Separate District Court cases Objection to
licences
 Involved preparation of sworn statements by
EHO’s

10. What are the Challenges/Difficulties
which arise in Enforcement?
 Smoking Areas
 85% of cases relate to pubs, night clubs or hotels
 In recent years > 50% of cases relate to smoking
areas
 Exemptions set out in Section 47
 No provision for approval of exempted areas /
smoking areas
 Thus HSE/EHOs do not have legal authority to give
approval
 Interpretation a matter for the Courts
 3 High Court Judgements that have clarified &
restricted the exemptions in Section 47(c)&(d) with
negative consequences for some structures.

11. Freshwall (2005)

12. Brookshore Ltd (2009)

14. Johnston Taverns (2012)

18. In Summary
 The closer a structure is to the limit of
compliance the more likely it will be
deemed non-compliant by the court.
 Smoking areas in licensed premises in
Environmental Health Service Business
Plan for 2014
 Enforcement Priority

19. Sales to Minors – PHTA Section 45
 It is an offence for a person to sell a
tobacco product a person who has not
attained the age of 18 years.
 Defense.....to prove
 -made all reasonable efforts that the person
has attained the age of 18 years,
 -age card provided
 Court may have regard to a person’s
physical appearance or attributes for the
purpose of determining whether that
person is under the age of 18 years or
was

20. Prosecutions Section 45
Year Cases Convictions Probation
Act
Dismissed/
Struck Out
2013 17 16 5 3
2012 5 2 2 6
2011 1 1
2010 12 8 1 6
2009 8 6 1 4
2008 23 19 1 4
Total 63 54 10 23

21. High Court - Case Stated Murphy V HSE
 Consultative case stated arising out of the prosecution
under the Health (Miscellaneous Provisions) Act 2001.
 The District Court Judge referred the case to the High
Court regarding a number of points of law including
whether the use of minors to detect the illegal sale
of tobacco to underage customers constitutes
entrapment and was contrary to public policy.
High Court Found:
 Not entrapment.
 Not contrary to public policy.
 Reinforces the Test Purchase Protocol.
 “Test purchase was necessary for the protection of
children themselves”, subject to the protocol

22. Promotion and Sponsorship -
Section 36 PHTA
Section 36(2)
Offence for a person to give financial or other assistance,
or cause financial or other assistance to be given, to or
for the benefit of a person, or for or in relation to an
event or activity, in consideration of the—
(a) use, display or advertising by the person, or at the
event
or activity concerned,
(b) association with the person, event or activity, or
(c) promotion,
of a tobacco product, the name of a tobacco manufacturer
or
importer, the name of a brand of tobacco product or a
trademark,emblem, marketing image or logo used in
the marketing of a tobacco product.

23. Inspection of Tobacco Companies
 As part of NIP Inspections carried out to tobacco
companies
 All doing various promotional activity of some type
 Pocket a packet promotion
 Summons served in July 2010, P. J. Carroll Ltd and John
Player in relation to Section 36
 The case was heard over three days on the March 2011
with senior counsel retained by both parties.
 Having considered the evidence the District Justice
found in the defendants favour
 Appeal by way of case stated

25. Principal Findings of Judge Kearns in the High Court:
 The Pall Mall “Pocket a Packet Mystery Shopper ” was a
promotion within the ordinary and natural meaning of that
term.
 The addition of the word ‘promotion’ in Section 36 may
simply be seen as widening the range of activities coming
under the prohibition.
 ‘Financial Assistance’ in Section 36 is not a term of art
although the words are ambiguous. If it was intended to
prohibit ‘any kind of payment’ the Oireachtas would have
done so expressly.
 The words ‘financial assistance’ do not sit logically or
sensibly with a once off prize or reward of a small sum, in
this case €30. Financial Assistance is a question of degree.
‘Financial Assistance’ does not include a gift, prize or reward
so as to include a monetary payment or cash voucher
redeemable for money or value worth from the scope of the
definition.
 ‘Financial Assistance’ must assist a particular event or
activity

28. Innovation to increase Sales
 1st
Gemini pack/Lucky strike
 B&H slide
 Ice Capsule
 Only place left to advertise is on or
in packs
 Leaflet inside pack

30. Combi Packs

31. Penalties and Removals
 Person convicted under the PHTA subject to fine
up to €4,000 and or 3 months in prison
 Upon conviction a registered person shall be
removed from the register for a period of up to 3
months
 Fines ranging from €50 – €4,000
 Removals from the Retail Register range from
1 hour ! to 3 months the maximum suspension

32. Thank You

33. Thank You