Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016

Sale and purchase of tobacco and nicotine vapour products

2 Sale of nicotine vapour products to persons under 18

(1) After section 4 of the 2010 Act insert—

“4A Sale of nicotine vapour products to persons under 18

(1) A person who sells a nicotine vapour product to a person under the age of 18 commits an offence.

(2) It is a defence to a charge in proceedings against a person (“the accused”) under subsection (1) that—

(a) the accused believed the person under the age of 18 (“the customer”) to be aged 18 or over, and

(b) the accused had taken reasonable steps to establish the customer’s age.

(3) For the purposes of subsection (2)(b), the accused is to be treated as having taken reasonable steps to establish the customer’s age if and only if—

(a) the accused was shown any of the documents mentioned in subsection (4), and

(b) that document would have convinced a reasonable person as to the customer’s age.

(4) The documents referred to in subsection (3)(a) are any document bearing to be—

(a) a passport,

(b) a European Union photocard driving licence, or

(c) such other document, or a document of such description, as may be prescribed.

(5) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.”.

(2) The italic heading immediately preceding section 4 of the 2010 Act becomes “Sale and purchase of tobacco and nicotine vapour products”.

3 Age verification policy

(1) After section 4A of the 2010 Act (inserted by section 2) insert—

“4B Age verification policy

(1) A person commits an offence if the person—

(a) carries on a tobacco or nicotine vapour product business, and

(b) fails to operate an age verification policy in respect of premises at which the person carries on the tobacco or nicotine vapour product business.

(2) Subsection (1) does not apply to premises (“the business premises”) from which—

(a) tobacco products, cigarette papers or nicotine vapour products are, in pursuance of a sale, despatched for delivery to different premises, and

(b) no other tobacco or nicotine vapour product business is carried on from the business premises.

(3) An “age verification policy” is a policy that steps are to be taken to establish the age of a person attempting to buy a tobacco product, cigarette papers or a nicotine vapour product on the premises (the “customer”) if it appears to the person selling the tobacco product, cigarette papers or nicotine vapour product that the customer may be under the age of 25 (or such older age as may be specified in the policy).

(4) The Scottish Ministers may by regulations amend the age specified in subsection (3).

(5) The Scottish Ministers may publish guidance on matters relating to age verification policies, including, in particular, guidance about—

(a) steps that should be taken to establish a customer’s age,

(b) documents that may be shown to the person selling a tobacco product, cigarette papers or a nicotine vapour product as evidence of a customer’s age,

(c) training that should be undertaken by the person selling the tobacco product, cigarette papers or nicotine vapour product,

(d) the form and content of notices that should be displayed in the premises,

(e) the form and content of records that should be maintained in relation to an age verification policy.

(6) A person who carries on a tobacco or nicotine vapour product business must have regard to guidance published under subsection (5) when operating an age verification policy.

(7) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 2 on the standard scale.”.

(2) In section 40(4) of the 2010 Act (subordinate legislation subject to affirmative procedure) before “section 24” insert—

• “section 4B(4)”.

4 Sale by persons under 18

After section 4B of the 2010 Act (inserted by section 3) insert—

“4C Sale of tobacco or nicotine vapour products by persons under 18

(1) A responsible person who allows a tobacco product, cigarette papers or a nicotine vapour product to be sold by a person under the age of 18 commits an offence.

(2) For the purposes of subsection (1), “responsible person” means—

(a) where the sale is at premises which are noted in a registered person’s entry in the Register, the registered person for those premises,

(b) where the sale is at premises which are not noted in a registered person’s entry in the Register—

(i) any employer of the person who made the sale, and

(ii) any other person having management or control of those premises.

(3) Subsection (1) does not apply to a sale which—

(a) is made at premises which are noted in a registered person’s entry in the Register, and

(b) is authorised by the registered person for those premises.

(4) Each authorisation mentioned in subsection (3)(b) must be recorded and kept at the premises at which a sale by a person under the age of 18 is made.

(5) The Scottish Ministers may prescribe—

(a) the form and content of authorisations made under subsection (3)(b),

(b) the method of recording authorisations for the purposes of subsection (4).

(6) An authorisation is, for the purposes of subsection (3)(b), deemed not to have been made, if—

(a) it is not recorded and kept in accordance with subsection (4), or

(b) it is not made in accordance with any provision made under subsection (5).

(7) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale.”.

5 Defence of due diligence for certain offences

After section 4C of the 2010 Act (inserted by section 4) insert—

“4D Defence of due diligence for certain offences

(1) It is a defence for a person charged with an offence to which this section applies to prove that the person (or any employee or agent of the person) took all reasonable precautions and exercised all due diligence to prevent the offence being committed.

(2) This section applies to an offence under any of the following provisions of this Act—

(a) section 4(1),

(b) section 4A(1),

(c) section 4C(1).”.

6 Purchase of nicotine vapour products on behalf of persons under 18

After section 6 of the 2010 Act insert—

“6A Purchase of nicotine vapour products on behalf of persons under 18

(1) A person aged 18 or over who knowingly buys or attempts to buy a nicotine vapour product on behalf of a person under the age of 18 commits an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”.

7 Extension of vending machine prohibition

(1) The Scottish Ministers may by regulations amend the definition of “vending machine” in section 9(3) of the 2010 Act (prohibition of vending machines) so as to include automatic machines for the sale of nicotine vapour products.

(2) In subsection (1), “nicotine vapour products” has the meaning given in section 35A of the 2010 Act.