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SNL1993 CHAPTER T-4.1

TOBACCO CONTROL ACT

Amended:

1995 c25; 1996 cR-10.1 s73; 1996 cT-0.01 s20; 1999 c8; 2000 c24; 2009 c15; 2012 cP-12.2 s67;
2014 cC-11.01 s40 (not in force - not included here)

CHAPTER T-4.1

AN ACT RESPECTING THE CONTROL OF THE SALE OF TOBACCO TO MINORS

(Assented to December 17, 1993)

Analysis



Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

        1. This Act may be cited as the Tobacco Control Act .

1993 cT-4.1 s1

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Definitions

        2. In this Act

             (a)  "accessory" means a product that may be used in the consumption of tobacco and includes cigarette papers, a pipe, a cigarette holder, and a cigar clip;

         (a.1)  "inspector" means a person appointed or designated under section 3;

             (b)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (c)  "minor" means a person under the age of 19 years;

             (d)  "retailer" means a person who in the ordinary course of business sells or supplies tobacco to another person;

             (e)  "tobacco" means tobacco in any form in which tobacco is consumed and includes snuff and an accessory as defined in paragraph (a); and

          (e.1)  "wholesaler" means a person who buys tobacco for resale to a person other than a consumer.

             (f)  [Rep. by 1995 c25 s1]

1993 cT-4.1 s2; 1995 c25 s1; 1996 cT-0.01 s20; 1999 c8 s1; 2000 c24 s1

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Purpose

      2.1 The purpose of this Act, in light of conclusive evidence that tobacco use causes premature death and disease, is to protect the health of Newfoundlanders and Labradorians and in particular young people by restricting access to tobacco and tobacco related products and to protect them from inducements to use tobacco.

2009 c15 s1

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Inspectors

        3. (1) The minister may appoint or designate a person or a class of persons as an inspector for the purpose of this Act.

             (2)  An inspector may, at all reasonable times, with or without the help of other persons, enter upon the business premises of a retailer or wholesaler or upon the premises where the retailer's or wholesaler’s tobacco or records are kept so long as it is reasonably necessary to determine compliance with this Act and may

             (a)  enter and inspect the business premises of a retailer or wholesaler and examine and take copies of those records that may be relevant to the enforcement of this Act or to a prosecution of a violation of this Act;

             (b)  investigate a complaint of a violation of this Act and question a retailer or wholesaler or employee of a retailer or wholesaler to determine whether a violation has occurred;

             (c)  make test purchases, or take samples of tobacco;

             (d)  give directions to a retailer or wholesaler;

             (e)  commence proceedings, which may be in the form of a ticket issued under the Provincial Offences Act, in respect of a violation of this Act;

             (f)  record and report convictions under this Act; and

             (g)  ask a person who is on the premises for proof of the person's age and make other inquiries of the person.

             (3)  A person shall not interfere with, obstruct, attempt to obstruct, or fail to co-operate with, an inspector in the exercise of his or her functions under this Act.

1993 cT-4.1 s3; 1995 c25 s2; 2000 c24 s2; 2009 c15 s2

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Licence

      3.1 (1) A retailer or wholesaler shall not sell tobacco without a licence.

             (2)  A person wishing to obtain a licence shall apply in writing to the Government Service Center including the information that the minister may prescribe.

             (3)  A licence issued under this section shall be affixed in a conspicuous place within the retail or wholesale premises.

             (4)  A licence may be transferred with the written approval of the minister.

             (5)  [Rep. by 2009 c15 s3]

1999 c8 s2; 2009 c15 s3

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Suspension or cancellation of licence

      3.2 (1) Where a retailer or wholesaler violates a provision of this Act or the Tobacco Act (Canada )

             (a)  for a first violation, his or her licence shall be suspended for 3 months;

             (b)  for a second violation, his or her licence shall be suspended for 6 months; and

             (c)  for a third or subsequent violation, his or her licence shall be cancelled.

             (2)  A retailer or wholesaler who sells tobacco while his or her licence is suspended or cancelled under subsection (1) is guilty of an offence.

             (3)  Where a retailer’s or wholesaler’s licence has been suspended or revoked under this section, an inspector shall remove the licence from the premises with respect to which it was issued.

1999 c8 s2; 2000 c24 s3; 2009 c15 s4

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Appeal

      3.3 A person whose licence has been suspended or cancelled under section 3.2 or an applicant for a licence or renewal of a licence whose application has been refused under section 3.1 may appeal against the suspension, cancellation or refusal to the minister responsible for tobacco licensing who may confirm or overrule the suspension, cancellation or refusal.

1999 c8 s2; 2009 c15 s5

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Offence

        4. (1) It is an offence for a retailer or other person to sell, give or furnish, directly or indirectly, tobacco to a person under the age of 19 years.

             (2)  It is not a defence to a prosecution for an offence under subsection (1) for the retailer or other person to show that the person under the age of 19 years appeared to be 19 years of age or older.

             (3)  A retailer or his or her employee shall require a person appearing to be under the age of 19 years to provide proof of age.

         (3.1)  Where a person is required to produce proof of age under subsection (3), the person shall produce an identification card issued under section 205.1 of the Highway Traffic Act or a driver’s licence issued under section 46 of the Highway Traffic Act or an identification card issued under an equivalent Act by another jurisdiction.

         (3.2)  A retailer or an employee of a retailer shall not accept, as proof of age, a form of proof other than one referred to in subsection (3.1).

             (4)  [Rep. by 2009 c15 s6]

1993 cT-4.1 s4; 1995 c25 s3; 2000 c24 s4; 2009 c15 s6

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Sales prohibited in certain places

      4.1 (1) A person shall not sell, or offer for sale, tobacco in

             (a)  a pharmacy;

             (b)  a temporary facility;

             (c)  a facility operated by a regional health authority established under paragraph 6(1)(b) of the Regional Health Authorities Act ;

             (d)  a personal care home as defined in the Personal Care Home Regulations ;

             (e)  a long term care home;

             (f)  a nursing home;

             (g)  an assisted living facility;

             (h)  a child care service operated under the Child Care Services Act;

              (i)  a school as defined in the Schools Act, 1997;

              (j)  a university as defined in the Memorial University Act ;

             (k)  a college as defined in the College Act, 1996 ;

              (l)  a private training institution as defined in the Private Training Institutions Act ;

           (m)  a building, or that part of a building that is owned, leased or operated by, the Government of Newfoundland and Labrador, an agency of the Government of Newfoundland and Labrador, a Crown corporation or a municipality;

             (n)  a recreational facility where the primary activity is physical recreation, including

                      (i)  a bowling alley,

                     (ii)  a fitness centre,

                    (iii)  a gymnasium,

                    (iv)  a swimming pool, and

                     (v)  an arena or rink;

             (o)  a theatre or cinema;

             (p)  a library;

             (q)  an art gallery;

              (r)  a museum;

             (s)  an amusement park;

              (t)  a video or games arcade; and

             (u)  a place prescribed by regulation.

             (2)  For the purpose of subsection (1)

             (a)  "pharmacy" means a pharmacy as defined in paragraph 2(l) of the Pharmacy Act, 2012 and includes

                      (i)  a kiosk that permits direct access to a pharmacist, whether in person or by telephone or another means, and from which prescription drugs or other medicines are sold or dispensed, and

                     (ii)  a retail store if

                            (A)  a pharmacy is located within the store, or

                            (B)  customers of the pharmacy can pass into the store directly or by use of a corridor or area used exclusively to connect the pharmacy with the store, or

                            (C)  a kiosk described in subparagraph (i) is located within the store; and

             (b)  "temporary facility" means premises established in conjunction with fairs, circuses, concerts, festivals, civic events or another event lasting not longer than 7 consecutive days.

2009 c15 s7; 2012 cP-12.2 s67

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No display of tobacco

      4.2 (1) In this section, "tobacco" includes the package in which the tobacco is sold.

             (2)  A person shall not display or permit the display of tobacco in a place or premises in which tobacco is sold or offered for sale

             (a)  by a means or in a manner, including the use of a countertop or wall display, that permits a customer in the place or premises to view tobacco before purchasing it, or

             (b)  by a means or in a manner that makes tobacco visible to the public from the outside of the place or premises.

             (3)  Notwithstanding subsection (2), it is not an offence for a customer to view tobacco

             (a)  during the restocking of tobacco;

             (b)  while a retailer is doing an inventory; or

             (c)  when a retailer is receiving delivery of tobacco or unpacking tobacco.

2009 c15 s8

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No advertising or promotional material

      4.3 A person shall not advertise or promote the sale or use of tobacco in a place or premises in which tobacco is sold or offered for sale on the exterior of the place or premises or anywhere within the boundaries of the place or premises.

2009 c15 s8

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Cigarette vending machine

      4.4 Sections 4.2 and 4.3 do not apply to a cigarette vending machine.

2009 c15 s8

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Signs

      4.5 Notwithstanding section 4.3, a person may in a place or premises in which tobacco is sold or offered for sale

             (a)  display or make available for viewing upon request, a sign that lists the types of tobacco for sale and their prices, if the sign complies with and is displayed in the manner, place, form and size prescribed by the regulations;

             (b)  display signs supplied by the minister; or

             (c)  display a magazine or other publication that is offered for sale and that contains tobacco advertising if the magazine or publication

                      (i)  is displayed in such a way that the tobacco advertisement is not visible to a customer unless he or she is reading the magazine or publication, and

                     (ii)  meets the requirements set out in the Tobacco Act (Canada ) or the regulations made under that Act.

2009 c15 s8

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Tobacconist shop

      4.6 (1) In this section, "tobacconist shop" means a place or premises in which the only business conducted is the sale of tobacco.

             (2)  Sections 4.2 and 4.3 do not apply to a tobacconist shop.

             (3)  A tobacconist shop may display its name outside the shop but advertisements, promotional material or products shall not be

             (a)  visible from the outside of the shop; or

             (b)  on the exterior of the shop.

             (4)  The owner or person in charge of a tobacconist shop shall not permit a person under the age of 19 years to enter the premises unless accompanied by an adult.

2009 c15 s8

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Signs

        5. (1) The minister may direct that signs be posted or displayed for the purposes of this Act.

             (2)  Where the minister directs that signs be posted or displayed at public entrances, on the front of cigarette vending machines and elsewhere, those signs shall be visible, unobstructed from view and in a form approved by the minister.

             (3)  It is an offence for a retailer to fail to post or display signs as directed and required under this Act.

1996 cR-10.1 s73

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Civil liability

        6. A person who reports to an inspector or peace officer a violation or suspected violation of this Act is not liable to a civil action in respect of the allegation contained in the report or anything done in good faith in assistance of an investigation by an inspector or by a peace officer.

1993 cT-4.1 s6

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Penalty

        7. (1) Notwithstanding the Provincial Offences Act , a retailer guilty of an offence under this Act is liable on summary conviction

             (a)  for a 1st offence, to a fine of $500 and is prohibited from selling tobacco for 3 months;

             (b)  for a 2nd offence, to a fine of $2,500 and is prohibited from selling tobacco for 6 months;

             (c)  for a 3rd offence and for each subsequent offence, to a fine of $5,000 and is prohibited from selling tobacco for 9 months; and

             (d)  to a fine of $500 for selling tobacco while prohibited from doing so under paragraph (a), (b) or (c).

             (2)  Notwithstanding the Provincial Offences Act , a person other than a retailer guilty of an offence under this Act is liable on summary conviction

             (a)  for a 1st offence, to a fine of $50;

             (b)  for a 2nd offence, to a fine of $250; and

             (c)  for a 3rd offence and for each subsequent offence, to a fine of $500.

             (3)  Each contravention of this Act constitutes a new and separate offence.

             (4)  The Minister of Justice or a person authorized by that minister may, either before or after the institution of proceedings against a person for a violation of this Act, accept from the person alleged to have been guilty of the violation payment of the fine for that violation.

             (5)  Where a person pays a fine under subsection (4) that person shall also be prohibited from selling tobacco for the period of time specified under subsection (1).

             (6)  The payment of an amount under subsection (4) shall, for the purpose of this Act, have the same effect as if the person paying the amount had been convicted of the violation in respect of which the amount was paid and a certificate or a copy of a receipt signed by a person authorized by the Minister of Justice under subsection (4) for the amount so paid is evidence of the conviction without further proof.

             (7)  All fines imposed under the provisions of the Act and recovered on summary conviction shall be paid to the Consolidated Revenue Fund.

             (8)  For the purpose of subsections (1) and (2), a conviction for an offence more than one year after the date of the last previous conviction shall be considered to be a conviction for a first offence.

             (9)  For the purpose of determining whether a conviction of a person for an offence under subsection (1) or (2) is a first, second or third conviction, a conviction of the person for an offence under the Tobacco Act (Canada ) shall be considered to be a conviction for an offence under this Act.

1993 cT-4.1 s7; 1995 c25 s1; 1999 c8 s3; 2000 c24 s6

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Penalties

      7.1 (1) Notwithstanding section 7, a retailer or wholesaler who is guilty of an offence under section 3.1 or 3.2 is liable on summary conviction

             (a)  for a first offence, to a fine of not less than $500 and not more than $5,000, or to imprisonment for a term of not less than one month nor more than 6 months, or to both a fine and imprisonment; and

             (b)  for a second and subsequent offence, to a fine of not less than $5,000 and not more than $20,000 or to imprisonment for a term of not less than 2 months nor more than 6 months, or to both a fine and imprisonment.

             (2)  Fines imposed and received under this section shall be paid into the Consolidated Revenue Fund.

1999 c8 s4

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Rep. by 2000 c24 s7

        8. [Rep. by 2000 c24 s7]

2000 c24 s7

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Removal of tobacco

        9. Where a retailer is prohibited from selling tobacco under section 3.1, 3.2 or 7 the retailer shall arrange for the removal of all tobacco from his or her business premises until the suspension is over.

1993 cT-4.1 s9; 1999 c8 s5

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Regulations

      10. The Lieutenant-Governor in Council may make regulations

             (a)  respecting signs required to be displayed under section 5;

         (a.1)  respecting the manner, location, form, size and content of signs permitted in a place or premises in which tobacco is sold or offered for sale;

         (a.2)  respecting places where the sale of tobacco is prohibited;

             (b)  notwithstanding section 3, respecting the powers of an inspector to enforce the provisions of this Act;

             (c)  respecting the notification of a wholesaler by the minister that a retailer is prohibited under section 3.1, 3.2 or 7 from selling tobacco;

             (d)  providing for the appointment or designation of, and prescribing the duties and functions of, inspectors; and

             (e)  generally to give effect to the purpose of this Act.

2000 c24 s8; 2009 c15 s9

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Rep. by 2009 c15 s10

      11. [Rep. by 2009 c15 s10]

2009 c15 s10

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Commencement

      12. This Act comes into force 6 months after the day on which it receives Royal Assent.

1993 cT-4.1 s12