The Law on Smoking

The Law on Smoking

1.       Introduction

1.1    Smoking is now regulated by the Tobacco Control Act 2016 (hereinafter ‘the Act’). The purpose of the Act was to control and regulate the manufacture, importation, distribution and sale and use of tobacco products[1].As of June 2017, the Tobacco Control Act 2016, was only partly in force. The act itself provides that Parts V, VI, VII, and IX of the Act will commence upon Gazettal. 

Smoking Defined

1.2    Under the Act, smoking means ‘puffing or inhaling and expelling the smoke of any tobacco product and includes the holding of, or control over, any ignited product or brus’[2]. Under that definition, a person who merely holds onto a lighted cigarette or tobacco pipe will be deemed to be smoking.

1.3    Inhalation and exhalation and the mere holding onto a lighted or ignited tobacco products qualifies as smoking under the Act. The extent of the act of smoking extends to what qualifies as a tobacco product. Under the Act, tobacco products are:

a.      products made or derived from tobacco that is intended for human consumption and includes any component, part or accessory of a tobacco product. By so, whole cigarettes, or parts of a cigar rete (the butt or filter or its packaging material) are taken to be a tobacco product.

b.      electronic devices that can be used to deliver nicotine to the person inhaling from the device. Some examples of such products, an electronic cigarettes, cigar, cigarillo or pipe.

1.4    Vaping has been defined as ‘the activity of using electronic cigarettes’[3] or ‘the action or practice of inhaling and exhaling the vapour produced by an electronic cigarette or similar device’[4]. It appears that the definition of the term smoking extends to include vaping as well. Although the term ‘vaping’ is not expressly found or defined in the Act, the term smoking under the Act extends to include vaping.

1.5    At this juncture, please take note that brus is not a tobacco product. Brus is unbranded loose tobacco grown locally in PNG and sold in an informal business whether sold loose, packaged, or in stick form and is not an excisable material for the purposes of the Excise Tariff Act 1956.

2.       Public Smoking

2.1    The Act imposes prohibition on smokers and a corresponding obligation on occupiers and employers to enforce smoking prohibition in their respective areas.

Prohibition – Smoke Free areas & Work place

2.2    Under the Act, smoking in smoke-free areas is prohibited. No person is allowed to smoke in a smoke-free area.[5] People are also prohibited to smoke in the work place[6]. No one is allowed to smoke at work. It appears that this prohibition applies to all smoke-free areas and work places.

2.3    Under the act, a smoke-free area is any public area or building where the Minister for Health[7] declares to be a smoke-free area. A public place can be a place or vehicle that the general public or section of the public is entitled to use or that is open to use by the public or a section of the public regardless of the fact that such use is made on payment of money, or by virtue of membership. In short, public transport facilities like buses and public facilities such as sports and recreational centres and private clubs are deemed public places for the purposes of the Act.

2.4    A smoke free area is a public area or building that the Minister declares to be a Smoke-free area. The Minister may publish an order in the National Gazette on terms he considers fit that:

a.   a class or a part of a building accessible by public[8]; or

b.   a specific building or part of it[9]; or

c.    a specific vehicle or craft or a class of vehicle or craft used for public transport[10],

to be smoke-free areas.

2.5    A work place is any indoor or enclosed area that is occupied by an employer that is frequently used by employees in the course of their employment[11]. The work place includes vehicles, cafeteria, corridors, lifts, lobbies, stairwells, toilets and washrooms and common areas. In other words, no one is allowed to smoke anywhere at the workplace or in a company vehicle.

2.6    By Amendment No. 11 of 2018, the Summary Offences Act 1977 was amended to prohibit smoking in public places. The amendment introduced a new section 44A which prescribed that it was an offence to smoke in public place[12] and also to buy or sell cigarettes or brus in a public place[13]. The penalty imposed for those offences was for payment of a fine not more than K 10,000.00 or imprisonment for a term not more than three years. Whilst the Amendment has been passed, as of the 7th June 2019, the Amendment had not yet commenced, and has not therefore been consolidated in the Summary Offences Act 1977. A confirmation is needed from the Law Reform Commission to confirm the status of Amendment No. 11 of 2018.

                  Obligations – Occupiers & Employers

2.7    The Occupier of a smoke-free area is the person (artificial or natural) in occupation or having possession of the smoke free area. The occupier in occupation of a smoke free area is vested with the responsibility to take all steps necessary to ensure that nor person smokes at any time in a smoke free area[14]. Whilst not specifically provided, it could mean that occupiers should install smoke detectors and alarms or security personnel.

2.8    The occupier must put up signs and notices displaying the prohibition of smoking within the smoke-free area the he occupies[15]. Those signs or notices must comply with the requirements of the Act.

2.9.   Where an occupier fails to take steps to enforce prohibition of smoking, he is deemed to have committed and offence. Where an occupier fails to install no smoking signs within his smoke free area, the occupier is deemed to have committed an offence. Both of these offences attract a penalty of not more than K 2,000.00[16].

2.10   An employer is also obligated to take all steps necessary to ensure that smoking is prohibited in the work place. Again, this could mean that employers must install smoke detection and deterrence devices to detect and deter smoking.

2.11   An employer must also put up signs at the work place stating that smoking is not permitted at work in the offices and in company vehicles. Again, these signs must comply with the requirements of the Act.

2.12   Any employer who fails to take steps to enforce the smoking prohibition is deemed to have committed and offence. Also, any employer who fails to display signs prohibiting smoking within the work place is deemed to have committed and offence. Again, both of these offences attract a penalty of not more than K 2,000.00.

3.      Advertising, Sponsorships and Promotions

                  Restrictions on Manufacturers, Importers and Distributors

3.1    The Act defines the terms, distributor, retailer and wholesaler. Neither the act nor does any legislation within PNG define the terms ‘manufacturer’ and ‘importer’. A distributor “means a person engaged in the business of selling tobacco products otherwise than by retail only”[17]. A retailer “means a person engaged in any business that includes or may include the sale of a tobacco product in whole or in part”[18]. A wholesaler “means a person who sells or offers for sale, tobacco products for the purpose of resale”[19].

3.2    A manufacturer is not defined in the Act or any legislation in Papua New Guinea, but it can mean a person (artificial or natural) that produces tobacco products in large quantities[20]. An importer also, not defined in the Act and legislation can mean a person or company, etc. who buys goods from another country in order to sell them in[21] Papua New Guinea.

3.3    It is illegal for anyone to publish or arrange for the publication of any tobacco product advertisement in Papua New Guinea[22]. Also, it is an offence to advertise any item commonly associate or likely to be associated with a tobacco product or trademark or brand name of a tobacco product or manufacturer[23]. Unless it is a business premises of a tobacco manufacturer or seller, it is an offence to put up a billboard or advertise on any building or structure any product that is commonly associated or likely to be associated to a tobacco product or trademark or brand name of a tobacco product or its manufacturer[24]. It is also an offence to advertise the trademarks and brand names of other products or services on tobacco products[25].

3.4    It is illegal to package or label tobacco products in labels that are generally deceiving or misleading[26] or misleading as to the characteristics, toxicity, composition, merit and safety of the products[27].

3.5    Even if a person is entitled, it is illegal to use a tobacco product trademark, or name (or part of the name of a manufacturer, importer or distributor of tobacco products,) on any article other than a tobacco product for the purpose of advertising of identifying to the public:

a.      Any article other than a tobacco product;

b.      Any service activity or event;

c.      Any scholarship, fellowship or other educational benefit.

3.6    It is illegal for any tobacco manufacturer, importer or distributor of tobacco products:

a.      to organize or promote any activity in Papua New Guinea;

b.      to make any financially contributions towards any organized activity in Papua New Guinea. 

c.      To make any financial contribution;

i.       to a person in; or

ii.      for the participation by that person in

in any organized activity in Papua New Guinea that involves the use of a tobacco product trademark or a company name or any part of company name included in that tobacco trademark.

3.7    In summary: it is illegal to advertise tobacco products in Papua New Guinea; it is illegal to use trademarks and names of tobacco products or of their manufacturers, importers and distributors on goods other than tobacco products or in sponsorship and promotion events in Papua New Guinea. Tobacco manufacturers, importers and distributors are not allowed to advertise and promote their products and are restricted from taking part in sponsorship activities or events in Papua New Guinea.

Restrictions on Selling

3.8    No manufacturer, distributor, or importer, or retailer shall sell, supply or distribute tobacco, free of charge or on a reduced charge[28]. It is illegal to offer a gift, cash rebate, discount or right to participate to a person on the account of him purchasing a tobacco product[29]. Any person who offers a gift, cash rebate or right of participation commits and offence and liable to a fine[30].

3.9    It is illegal to advertise or label a tobacco product as being suitable for chewing[31].

3.10   It is illegal to sell tobacco products to person under the age of 18 years[32].

3.11  It is illegal to sell confectionary or toys that resembles a tobacco product or its packaging or contains a brand name or trademark of a tobacco product[33].

3.12   It is an offence to sell by retail cigarettes fewer than 25 cigarettes or packaged tobacco weighing less than 25 grams[34].

3.13   It is an offence to sell tobacco unsupervised, through mail, or via automatic vending machines[35].

3.14  All tobacco products to be sold or supplied must be labelled with health messages the large large, clearly visible and legible. It is an offence to sell or supply tobacco products without having a health warning labelled on the tobacco product[36].

3.15   All tobacco products to be supplied, distributed or sold must comply with the prescribed standards relating to the manufacture of tobacco products.

3.16   The Secretary of Health may recommend to the Minister of Health to impose a ban on the sale of a specified tobacco product or a class of products. The Minister imposes the ban by order in the National Gazette. The Secretary may recommend the ban on tobacco products that:

a.   possess a distinctive fruity, sweet or confectionery-like character; or

b.   have packaging that appeals to children or young people; or

c.    Is not tobacco but resembles a tobacco product; or

d.   Is of a nature or advertised in a way that may encourage children or young people to smoke.

4.      Registration & Licensing

                  Wholesalers & Retailers

4.1    Section 39 of the Act requires that wholesalers and retailers who intend to sell tobacco products must now register. Wholesalers and retailers must be registered by the Secretary for Health upon payment of prescribed fee.

4.2    Any person or company who sells tobacco without being registered is deemed to have committed an offence[37]. In the case of a person is liable to pay a fine not more than K5,000.00 In the case of a corporation, the corporation will be liable to pay a fine not more than K50,000.00.

Manufacturers, Importers and Distributors

4.3    Manufacturers, Importers or distributors are required under section 41 of the Act to apply be licenced before they conduct the business of manufacturing, importing or distributing tobacco products. Any manufacturer, importer or distributor who conducts business without a licence is deemed to have committed an offence and will be liable to pay a fine of not more than K50,000.00[38]. The Secretary for Health is the licensing authority and will grant licences on a yearly basis for a prescribed annual fee.

                  Registration & Licencing – Not yet in effect

4.5    At the present time, the requirements of registration and licensing under Part V and VII of the Act are not yet in force. In short, the requirements imposed for registration and licensing enumerated in sections 39 to 43 of the Act will come into effect upon a Notice in the National Gazette by virtue of section 62 of the Act.

4.6    Under section 62, the Head of State, by notice in the National Gazette, shall nominate the dates by which the various parts of the Act shall come into operation. There has been no such notice in the Gazettal and it remains to be known or decided when those parts will come into effect. At present there is no requirement to register or be licenced.

FOOTNOTES:

[1] Tobacco Control Act 2016, Preamble.

[2] Tobacco Control Act 2016, s. 2.

[3] ‘vaping’, Oxford Advanced Learner's Dictionary 9th edition ? Oxford University Press, 2015

[4] Lexico online dictionary, Oxford [https://www.lexico.com/en/definition/vaping].

[5] Tobacco Control Act 2016, s.5.

[6] Tobacco Control Act 23016, s. 9.

[7] Whilst the Minister for Health is not expressly stated, the term Department under the Act means the Department responsible for Health matters, so by inference, the term Minister is a reference to the Minister for Health.

[8] Tobacco Control Act 2016, s. 8(1).

[9] Tobacco Control Act 2016, s. 8(2).

[10] Tobacco Control Act 2016, s. 8(3).

[11] Tobacco Control Act 2016, s. 2.

[12] Summary Offence Act 1977, s. 44A (1).

[13] Summary Offences Act 1977, s. 44A (2).

[14] Tobacco Control Act 2016, s. 6 (1).

[15] Tobacco Control Act 2016, s. 7.

[16] Tobacco Control Act 2016, s. 6 (2) and s. 7 (2).

[17] Tobacco Control Act 2016, s. 2.

[18] Tobacco Control Act 2016, s. 2.

[19] Tobacco Control Act 2016, s. 2.

[20] ‘manufacturer ‘, Oxford Advanced Learner's Dictionary 9th edition ? Oxford University Press, 2015.

[21] ‘importer’, Oxford Advanced Learner's Dictionary 9th edition ? Oxford University Press, 2015.

[22] Tobacco Control Act 2016, s. 14.

[23] Tobacco Control Act 2016, s. 26 (1).

[24] Tobacco Control Act 2016, s. 26(2).

[25] Tobacco Control Act 2016, s. 27 (1).

[26] Tobacco Control Act 2016, s. 29(2).

[27] Tobacco Control Act 2016, s. 29(1).

[28] Tobacco Control Act 2016, s. 20(1).

[29] Tobacco Control Act 2016, s. 20(2).

[30] Tobacco Control Act 2016, s. 20(5).

[31] Tobacco Control Act 2016, s. 21.

[32] Tobacco Control Act 2016, s. 22.

[33] Tobacco Control Act 2016, s. 23.

[34] Tobacco Control Act 2016, s. 24.

[35] Tobacco Control Act 2016, s. 25.

[36] Tobacco Control Act 2016, s. 28.

[37] Tobacco Control Act 2016, s. 39(6).

[38] Tobacco Control Act 2016, s. 41(6).