Tobacco Products Control Act, Act 1 of 2010: Executive Summary on the Regulations and your Obligations

Contents: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Definitions Advertising and Promotion of Tobacco Products Packaging and Labelling of Tobacco Products Persons under the age of 18 years Restrictions on the use of Vending-Machines Prohibition of Smoking of Tobacco Products Distance of Smoking in a Public Place Complaints in terms of the Act Entry, search and inspection of premises Forfeiture to State Notification of Offence

1.

Definitions

For the purposes of this executive summary, the following definitions are important: Advertisement -

Any picture, sign, symbol or visual image and any other message aimed at the public and designed to promote a tobacco product and include the use of a tobacco product manufacturer’s name which is included in a tobacco product trade mark.

Employee -

Any individual, other than an independent contractor, who works for another person and receives, or is entitled to receive, remuneration for that work or in any manner assist in carrying on or conducting the business of an employer.

Employer -

Any person, including the State and a user enterprise that employs or provides work for an individual and who remunerates or expressly or tacitly undertakes to remunerate that individual or permits an individual to assist that person in any manner in the carrying on or conducting of that person’s business.

Indoor, enclosed or partially enclosed area -

Owner of or person in charge of -

Any space covered by a roof or enclosed by one or more walls or sides, regardless of the material used for the roof, wall or sides and regardless of whether it is permanent or temporary.

In the case of a public place the owner thereof includes: (a) The executor of a deceased estate; (b) The trustee of an insolvent estate;

(c) The owner’s legal representative if the owner is under legal disability; (d) The liquidator of a wound up CC, (Pty) Ltd or Ltd; (e) The person in whom the ownership is vested by statute; (f) If the State has allotted, granted or sold land to a person but which land has not yet been transferred, that person; and (g) The lessee of land under a registered lease. Private dwelling -

Any part of any room or apartment of a building which is occupied as a residence or any building or outdoor living area which is accessory to and used wholly or principally for residential purposes.

Public Place

Any indoor, enclosed or partially enclosed area which is open to the public and includes a workplace, club, private dwelling and a public conveyance.

Smoke -

2.

To inhale, exhale, hold or otherwise have control over an ignited tobacco product.

Advertising and Promotion of Tobacco Products

2.1. 2.2. 2.3. 2.4.

2.5. 2.6. 3.

-

No person may publish, display or broadcast an advertisement relating to the use of tobacco products. No person may use tobacco trademarks, logos, brand names or company names used on tobacco products for the purposes of advertising. No manufacturer, importer, retailer or distributor of tobacco products may: (i) Organise or promote a public event; and/or (ii) Make any financial contribution to a public event. A retailer who has any signs at the point of sale to indicate the availability of tobacco products will not be in contravention of 2.1 and 2.2. The sign must be placed on the shelf or portion thereof where the tobacco products are stacked, bear only the name of the product and its price and be in a colour similar to the rest of the pricing labels of all other products on that retail outlet. The sign must contain the warning set out in Annexure 2 to the Regulations in letters that are at least 2cm in height and1.5 cm in width and may not exceed 1m2 in size. No replica toy or candy tobacco may be displayed or sold at any wholesale or retailer. Contravention: Fine of N$ 200,000.00 and/or 10 years imprisonment.

Packaging and Labelling of Tobacco Products

3.1.

The package must be labelled in the prescribed manner and must bear the prescribed warning concerning health hazards and other relevant information. (i) According to Regulation 2 the package must resemble Annexure 1 as closely as possible and must set out one of the pictures and one of the warnings contained in Annexure 2. The picture and warning must cover 60% of the surface area on the back of the packet and 50% of the surface area on the front of the packet.

(ii)

3.2. 3.3. 4.

Persons under the age of 18 years

4.1. 4.2. 4.3. 4.4. 5.

No tobacco products may be sold to any person under the age of 18 years. No person under the age of 18 may be engaged in the selling of tobacco products. A retailer should display a notice indicating that no tobacco will be sold to persons under the age of 18 bearing the following words: “We cannot, by law, sell tobacco products to anyone under the age of 18 years.” Contravention: N$ 100,000.00 and/or 5 years imprisonment.

Restrictions on the use of Vending-Machines

5.1. 5.2. 5.3. 6.

The requirements for a valid warning are set out in Regulation 3 and 4. If a copy of the Regulations is required kindly forward the request to [email protected]. (iii) The product must further contain the statement “this product contains nicotine, tar and other harmful chemicals. (iv) No package may display the words “mild”, “light” or “low tar”. The quantities of the constituents present in the tobacco product concerned must be stated on the package. Contravention: Fine of N$ 200,000.00 and/or 10 years imprisonment.

From a date as determined by the Minister in the Government Gazette no person may sell tobacco products from a vending-machine. Until such notice has been given by the Minister, the sale of tobacco products in vending-machines is restricted to places in which the purchases from such machines are restricted to persons over the age of 18 years. Contravention: Fine of N$ 100,000.00 and/or 5 years imprisonment.

Prohibition of Smoking of Tobacco Products

6.1.

6.2.

The smoking of tobacco products is prohibited in the following areas: (i) A public place; (ii) Any area within a prescribed distance from a window, vent or doorway to or entrance into a public place; or (iii) Such areas as determined by the Minister. (iv) Contravention: N$ 500 and/or 1 month imprisonment. Duties of the employer, owner or person in charge: (i) The owner of or the person in charge of a place or area mentioned in 6.1. must ensure that no person smokes in that area or place. Contravention: N$ 60,000.00 and/or 3 years imprisonment. (ii) If a person continues to smoke in the area pointed out by the owner that smoking is not allowed, the owner must lay a complaint against such person. (iii) The owner must guide clients on how to lodge a complaint if there has been a contravention of the law. (iv) In terms of Section 22 (4) the owner or person in charge must display the prescribed signs and inform any person who enters or who is in or on such place or area that smoking is prohibited. If copies of the notice and prescribed sign are required, kindly request it at [email protected]. (v) An employer must further ensure that employees who do not wish to be exposed to tobacco smoke are not so exposed and employees are not required to sign an indemnity form. Contravention: N$ 100,000.00 and/or 5 years imprisonment. (vi) The owner must provide supportive training to his or her employees on how to deal with clients who smoke in a public place.

7.

Distance of Smoking in a Public Place

A person may not smoke a tobacco product within a distance of 2 meters from a window, ventilation inlet, doorway to or the entrance to a public place. Contravention: N$ 4,000.00 and/or 1 year imprisonment.

8.

Complaints in terms of the Act

8.1. 8.2. 8.3. 8.4. 8.5.

9.

Entry, search and inspection of premises

9.1. 9.2. 9.3. 9.4. 9.5.

10.

A person who reasonably believes that the Act has been contravened may in writing complain to the owner and must set out the particulars of the complaint. The owner must investigate or cause investigation of the complaint within 10 days of receipt of the complaint. If, after the investigation, it appears that the contravention has occurred, the owner must try to resolve the complaint. If the contravention is on the part of the owner or person in charge of the public area, such person must resolve the complaint and assure the complainant that there will be no repetition of the cause of the complaint. If the contravention is on the part of an employee or other person in such place, the owner or person in charge of the public place must obtain an assurance form the employee or such other person that there will be no repetition of the cause of the complaint.

An inspector may, without a warrant or notice, at any reasonable time enter any place, premises, vehicle or public conveyance, which is not a home. An inspector may only enter a home: (i) With the consent of the owner or occupier; or (ii) If the inspector has a warrant to do so. An employer, owner or person in charge may request the inspector to produce his or her certificate of appointment. If anything is seized from the premises the inspector must provide a receipt therefore and must return anything so seized within a reasonable time. Contravention: Any person who fails or refuses access to an inspector, hinders or influences an inspector, fails or refuses to give information when so requested or give an inspector false or misleading information knowing it to be false and misleading: N$ 50,000.00 and/or 5 years imprisonment.

Forfeiture to State

If the court convicts a person under any of the abovementioned offences, it may declare any tobacco product or thing to which the offence relates, to be forfeited to the State.

11.

Notification of Offence

11.1. The inspector may provide a person with a written notification of an offence that was committed. 11.2. The inspector must specify the offence committed, the place and time of such offence and the fine payable in terms of Section 34 (6). 11.3. A person receiving such notice may within 30 days of the receipt thereof deliver to the Magistrate Court of the district where the offence was alleged to have taken place the sum of money as stipulated in the notification. 11.4. Once such payment has been received by the Magistrate a person may not be prosecuted for the offence.