Health Act 2009

21 Prohibition of tobacco displays etc

After section 7 of the Tobacco Advertising and Promotion Act 2002 (developments in technology) insert—

“7A Prohibition of tobacco displays

(1) A person who in the course of a business displays tobacco products, or causes tobacco products to be displayed, in a place in England and Wales or Northern Ireland is guilty of an offence.

(2) The appropriate Minister may by regulations provide for the meaning of “place” in this section.

(3) The appropriate Minister may by regulations make provision for a display in a place which also amounts to an advertisement to be treated for the purposes of offences in England and Wales or Northern Ireland under this Act—

(a) as an advertisement and not as a display, or

(b) as a display and not as an advertisement.

7B Tobacco displays: exclusions and defence

(1) No offence is committed under section 7A if—

(a) the tobacco products are displayed in the course of a business which is part of the tobacco trade,

(b) they are displayed for the purposes of that trade, and

(c) the display is accessible only to persons who are engaged in, or employed by, a business which is also part of that trade.

(2) No offence is committed under section 7A if the display is a requested display to an individual aged 18 or over.

(3) The appropriate Minister may provide in regulations that no offence is committed under section 7A if the display complies with requirements specified in the regulations.

(4) Subsections (5) and (7) apply where a person (“D”) is charged with an offence under section 7A in a case where the display is a requested display to an individual aged under 18.

(5) Where D is charged by reason of D having displayed the tobacco product it is a defence that—

(a) D believed that the individual was aged 18 or over, and

(b) either—

(i) D had taken all reasonable steps to establish the individual’s age, or

(ii) from the individual’s appearance nobody could reasonably have suspected that the individual was aged under 18.

(6) For the purposes of subsection (5), a person is treated as having taken all reasonable steps to establish an individual’s age if—

(a) the person asked the individual for evidence of the individual’s age, and

(b) the evidence would have convinced a reasonable person.

(7) Where D is charged by reason of D having caused the display of the tobacco product it is a defence that D exercised all due diligence to avoid committing the offence.

(8) In this section “a requested display” means a display to an individual following a particular request by the individual to purchase a tobacco product, or for information about a tobacco product.

7C Displays: prices of tobacco products

(1) The appropriate Minister may by regulations make provision imposing requirements in relation to the display in a place in England and Wales or Northern Ireland in the course of a business of prices of tobacco products.

(2) A person who displays or causes to be displayed prices of tobacco products in breach of a requirement contained in the regulations is guilty of an offence.

(3) The regulations may, in particular, provide for the meaning of “place” in this section.

(4) The regulations may make provision for a display of prices in a place which also amounts to an advertisement to be treated for the purposes of offences in England and Wales or Northern Ireland under this Act—

(a) as an advertisement and not as a display of prices, or

(b) as a display of prices and not as an advertisement.

7D Displays on a website

(1) The Secretary of State may by regulations make provision imposing requirements in relation to the display in England and Wales or Northern Ireland in the course of a business of tobacco products or their prices on a website where tobacco products are offered for sale.

(2) A person who displays or causes to be displayed tobacco products or their prices in breach of a requirement contained in the regulations is guilty of an offence.

(3) A service provider established in England and Wales or Northern Ireland is guilty of an offence if, in the course of providing information society services, the provider does anything in an EEA State other than the United Kingdom which, if done in England and Wales or Northern Ireland, would constitute an offence under subsection (2).

(4) Nothing in subsection (2) makes it an offence for a service provider established outside the United Kingdom to do anything in the course of providing information society services.

(5) The regulations may make provision for a relevant display of tobacco products or their prices which also amounts to an advertisement to be treated for the purposes of offences in England and Wales or Northern Ireland under this Act—

(a) as an advertisement and not as a display, or

(b) as a display and not as an advertisement.

(6) In subsection (5) a “relevant display” means a display on a website where tobacco products are offered for sale.”