New South Wales offences for selling, advertising and promoting tobacco and e-cigarettes

(1) A person must not sell a tobacco product that is not in the package in which it was packed by the manufacturer.

(2) A person must not sell cigarettes as individual items or in a package containing fewer than 20.

Exception to offence

(3) This section does not apply to the sale of single cigars.

Any presumption is rebuttable.

($110 per unit at the time of writing)

($110 per unit at the time of writing)

(1) A person must not pack a tobacco product into a package in which the product is to be sold unless the package is marked with a health warning.

(2) A person must not sell a tobacco product unless the package in which the product is sold is marked with a health warning.

Exception to offence

(3) This section does not apply to the sale or packing of single cigars.

Any presumption is rebuttable.

(1) A person must not–

(a) pack a tobacco product into a package in which the product is to be sold, or

(b) sell a tobacco product in a package, if the package is marked with, or accompanied by, any material that contains any prohibited words.

(2) For the purposes of this section, the prohibited words are–

(a) “non-injurious”, “non-hazardous”, “harmless to man” and “harmless to woman”, and

(b) words of similar import to those specified in paragraph (a), and

(c) words that directly or by implication contradict, qualify or modify a health warning that is marked, or required to be marked, on the package.

(1) A person who is the occupier of premises on which tobacco products or non-tobacco smoking products are sold must ensure that members of the public cannot see any of those products, or any smoking accessories, from inside or outside the premises.

Exceptions to offence

(2) This section does not apply to–

(a) the display of tobacco products, non-tobacco smoking products or smoking accessories to a customer of the business concerned at his or her request, or

(b) the display of tobacco products, non-tobacco smoking products or smoking accessories by a customer of the business concerned, or

(c) the display of tobacco products, non-tobacco smoking products or smoking accessories in such other circumstances as may be prescribed by the regulations as exempt from this section.

(1)The occupier of premises on which tobacco products or non-tobacco smoking products are sold must ensure that those products, and any smoking accessories, are sold from only one point of sale on those premises.

Exception to offence

(2) For the purposes of this section, a
“point of sale” includes a cash register but does not include a tobacco vending machine

(1) A person (the
“vendor”) must not carry a tobacco product in any public place for the purpose of the sale of the product by retail to persons in the place.

(2) A person must not cause or permit a vendor to carry a tobacco product in contravention of subsection (1) on premises under the person's control.

(3) If a vendor contravenes subsection (1)–

(a) a person who is the employer of the vendor in the person's capacity as vendor, or

(b) a person who has entered into a contract with the vendor in the performance of which the vendor engaged in the activity that constituted the contravention,

is also guilty of an offence.

(4) A person must not sell a tobacco product by retail from–

(a) any booth, tent or other temporary enclosure (including a market stall or stand), whether or not part of the booth, tent or enclosure is permanent, or

(b) any mobile structure, vehicle or vessel.

(5) A person must not cause or permit another person to sell a tobacco product in contravention of subsection (4)–

(a) on premises under the person's control, or

(b) on premises being used for a concert or other event organised by the person.

(1) A person who owns or is the lessee of a tobacco or e-cigarette vending machine must not place the vending machine, or cause or permit the vending machine to be placed, in any premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products unless the vending machine is placed in an area of the premises that is–

(a) a bar area of a hotel or club premises within the meaning of the Liquor Act 2007 , or

(b) a bar area of a casino within the meaning of the Liquor Act 2007 as applied by the Casino Control Act 1992 , or

(c) a gaming machine area within the meaning of the Gaming Machines Act 2001 .

(2) A person who owns or is the lessee of a tobacco or e-cigarette vending machine must not place the vending machine, or cause or permit the vending machine to be placed, in any of the following premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products if, as a result, more than one tobacco or e-cigarette vending machine would be situated on those premises–

(a) a hotel (within the meaning of the Liquor Act 2007 ),

(b) club premises (within the meaning of the Liquor Act 2007 ),

(c) a casino (within the meaning of the Casino Control Act 1992 ), including premises to be considered to form part of the casino by an order under section 89 (3) of that Act.

A person who owns or is the lessee of a tobacco or e-cigarette vending machine must not place the vending machine, or cause or permit the vending machine to be placed, in any premises in New South Wales for the purpose of the sale of tobacco products, non-tobacco smoking products, e-cigarettes or e-cigarette accessories, unless:

(a) the vending machine can only be activated by a member of staff of the hotel, club or casino in which the vending machine is situated, whether by remote control or some other means, or

(b) a person intending to obtain products from the vending machine is required to use a vending machine token that is only available from a member of staff of the hotel, club or casino in which the vending machine is situated.

(1) A person who owns or is the lessee of a tobacco or e-cigarette vending machine situated in premises in New South Wales for the purpose of the sale of tobacco products, non-tobacco smoking products, e-cigarettes or e-cigarette accessories must ensure that a statement in the form (if any) prescribed by the regulations is kept conspicuously displayed on the front of the vending machine.

(2) A person who owns or is the lessee of a tobacco vending machine in New South Wales must ensure that–

(a) the tobacco products contained in the vending machine are not displayed so as to be in view of members of the public, and

(b) no information about tobacco products, or representation of a tobacco product or package of a tobacco product, is displayed on the vending machine other than permissible information.

(1) A person must not, in New South Wales and for any direct or indirect benefit, display a tobacco advertisement in, or so that it can be seen or heard from, a public place or a place prescribed by the regulations.

(2) A person must not, in New South Wales–

(a) distribute to the public any unsolicited object that constitutes or contains a tobacco advertisement, or

(b) sell, hire or supply for any direct or indirect benefit any object to any person (other than a person, or the employee of a person, who is a manufacturer, distributor or retailer of a tobacco product) if the object constitutes or contains a tobacco advertisement.

Exceptions to the offence

(3) This section does not apply in relation to any of the following–

(a) anything done by means of a radio or television broadcast,

(b) a tobacco advertisement in or on a newspaper or book–

(i) printed and published outside New South Wales, or

(ii) printed and published before 17 December 1991,

unless the sole or main purpose of the newspaper or book is the promotion or publicising of the purchase or use of a tobacco product or a trademark or brand name of a tobacco product,

(d) a tobacco advertisement that is an incidental accompaniment to the subject of a film, video tape or live stage performance unless the sole or main purpose of the film, video tape or performance is the promotion or publicising of the purchase or use of a tobacco product or a trademark or brand name of a tobacco product,

(e) the display of retail prices and names of tobacco products within a retail outlet, where the display complies with this Act and the regulations,

(f) an invoice, statement, order, letterhead, business card, cheque, manual or other document that is ordinarily used in the course of the business of a manufacturer or distributor of a tobacco product.

(1) A person must not, in connection with the sale of a tobacco product or for the purpose of promoting the sale of a tobacco product, supply (whether from inside or outside New South Wales) to a person in New South Wales–

(a) a prize, gift or other benefit, or

(b) a stamp, coupon, token, voucher, ticket or other thing by virtue of which any person may become entitled to, or may qualify for, a prize, gift or other benefit (whether that entitlement or qualification is absolute or conditional).

(2) Subsection (1) applies whether or not the person supplied with the benefit or thing concerned is a purchaser of a tobacco product.

Exception to the offence

(3) Subsection (1) does not apply to the supply of a benefit or thing to a person who is, or is the employee of–

(a) a manufacturer or distributor of tobacco products, or

(b) a retailer of tobacco products, unless it is established that the benefit or thing was supplied for resupply to persons who purchase tobacco products from the retailer.

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(5) A person must not, in connection with the sale of a tobacco product or for the purpose of promoting the sale of a tobacco product, conduct (whether from inside or outside New South Wales) a scheme–

(a) declared by the regulations to be a scheme to promote the sale of a tobacco product or to promote smoking generally, and

(b) the whole or any part of which is implemented in New South Wales.

Defence to the offences

(6) It is a defence in proceedings for an offence under this section to prove that the benefit or thing supplied was only incidentally connected with the purchase of a tobacco product and that equal opportunity to receive that benefit or thing and to buy products other than tobacco products was afforded generally to persons who purchased products, whether or not they were tobacco products.

(1) A person must not implement or conduct a shopper loyalty program.

(2) In this section, a
“shopper loyalty program” means any of the following programs–

(a) a program under which a gift or other benefit may be obtained by a purchaser of tobacco products or non-tobacco smoking products on the basis of the amount or type of those products purchased, regardless of whether the program extends to the purchase of other products or goods,

(b) a program under which a purchaser of goods or products may be entitled to a gift of tobacco products or non-tobacco smoking products, regardless of whether the purchaser may choose to accept another type of gift instead.

Exceptions to the offence

(3) However, a shopper loyalty program does not include the following–

(a) any program under which a gift or other benefit may be obtained by a purchaser of goods on the basis of the method of payment used, such as the use of a particular credit card,

(b) any program conducted by a manufacturer or distributor of tobacco products or non-tobacco smoking products where the gift or other benefit provided under the program is provided to a retailer of such products for the use of the retailer and is not intended for resupply.

A person must not, for the purpose of inducing or promoting the sale of a tobacco product, offer, give or distribute to another person (not being a person who is, or is the employee of, a manufacturer, distributor or retailer of a tobacco product) a free tobacco product.

(1) A person must not promote or publicise, or agree to promote or publicise, in New South Wales any of the following under a contract, or an arrangement (whether or not legally binding), under which a sponsorship is provided, or to be provided, by another person–

(a) a tobacco product or a trademark or brand name of a tobacco product,

(b) the name or interests of a manufacturer or distributor of a tobacco product (whether or not that manufacturer or distributor also manufactures or distributes a product other than the tobacco product) in association directly or indirectly with the tobacco product.

(2) A person must not provide, or agree to provide, a sponsorship under a contract or arrangement of a kind referred to in subsection (1).

(1) A person must not manufacture or sell in New South Wales a tobacco product designed for consumption otherwise than by smoking.

(1A) For the purposes of subsection (1), a quantity of tobacco product that exceeds the amount prescribed by the regulations is presumed to be for the purposes of sale if–

(a) it is on premises where tobacco products are being sold, and

(b) it is a tobacco product designed for consumption otherwise than by smoking.

Exceptions to the offence

(1B) The presumption referred to in subsection (1A) is rebuttable.

(2) Subsection (1) does not apply to the manufacture or sale of any mixture or product, or mixture or product of a class, prescribed by the regulations if the manufacture or sale occurred in the circumstances prescribed by the regulations.

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(3) A person must not sell–

(a) any confectionery or other food, or

(b) any toy, amusement or other product,

that resembles a tobacco product or is packaged to resemble a tobacco product.

(1) A person must not sell a tobacco product to a person who is under the age of 18 years.

(2) A person must not sell a non-tobacco smoking product to a person who is under the age of 18 years.

(2A) A person must not sell an e-cigarette or e-cigarette accessory to a person who is under the age of 18 years unless it is an authorised product.

Defence to the offence 

(3) It is a defence to a prosecution for an offence under this section if the court is satisfied that–

(a) the person to whom the tobacco product, non-tobacco smoking product, e-cigarette or e-cigarette accessory was sold was over the age of 14 years at the time of the sale, and

(b) at or before the time of the sale there was produced to the defendant documentary evidence that might reasonably be accepted as applying to the person to whom the tobacco product or non-tobacco smoking product was sold and as proving that the person was at least 18 years of age.

(1) A person of or above the age of 18 years must not purchase, on behalf of a person under the age of 18 years, a tobacco, smoking or vaping product from premises where such products are sold.

Defence to the offence 

(2) It is a defence to a prosecution for an offence under this section if the court is satisfied that–

(a) the person on whose behalf the relevant product was purchased was over the age of 14 years, and

(b) at or before the time the relevant product was purchased there was produced to the defendant documentary evidence that might reasonably be accepted as applying to the person and as proving that the person was at least 18 years of age.

(1) A manager or member of staff of premises on which a tobacco or e-cigarette vending is situated must not supply a vending machine token to a person who is under the age of 18 years or activate a tobacco or e-cigarette vending for a person under the age of 18 years.

Defence to the offence

(2) It is a defence to a prosecution for an offence under this section if the court is satisfied that–

(a) the person to whom the relevant token was supplied or for whom the tobacco or e-cigarette vending machine was activated was over the age of 14 years, and

(b) at or before the time the relevant token was supplied or tobacco or e-cigarette vending machine was activated there was produced to the defendant documentary evidence that might reasonably be accepted as applying to the person and as proving that the person was at least 18 years of age.

(1) A person of or above the age of 18 years must not obtain, on behalf of a person under the age of 18 years, a vending machine token.

Defence to the offence

(2) It is a defence to a prosecution for an offence under this section if the court is satisfied that–

(a) the person on whose behalf the relevant token was obtained was over the age of 14 years, and

(b) at or before the time the relevant token was obtained there was produced to the defendant documentary evidence that might reasonably be accepted as applying to the person and as proving that the person was at least 18 years of age.

(4) A person must not sell a prohibited tobacco product.

Limitation on prohibiting products 

(2) The Minister must not make a declaration under subsection (1) unless the Minister is satisfied that the tobacco product or products, or the smoke of the product or products, has a distinctive fruity, sweet or confectionery-like character that might encourage a minor to smoke.

(1) A person must not smoke in a motor vehicle that is on a road or road related area if there is a person under the age of 16 years present in the vehicle.

(2) The driver of a motor vehicle in which a person is smoking in contravention of subsection (1) is guilty of an offence.

Defences 

(4) It is a defence to a prosecution for an offence under subsection (1) if the court is satisfied that, when the defendant was smoking, the defendant believed on reasonable grounds that no person in the motor vehicle was under the age of 16 years.

(5) It is a defence to a prosecution for an offence under subsection (2) if the court is satisfied that the defendant believed on reasonable grounds that, when the person who contravened subsection (1) was smoking, no person in the motor vehicle was under the age of 16 years.

(1) A person who is prohibited under this Part from engaging in tobacco retailing for any period must not engage in tobacco retailing during that period on the prohibited premises.

(1) A person who is prohibited under this Part from engaging in tobacco retailing for any period must ensure that none of the following things are displayed on the prohibited premises during that period if the person is operating any business on those premises–

(a) tobacco products or non-tobacco smoking products,

(b) smoking accessories,

(c) any sign, information or other thing (including any health warning) relating to a thing referred to in paragraph (a) or (b).

Exception to the offence

(3) This section does not apply to the display of tobacco products, non-tobacco smoking products or smoking accessories by customers of the business concerned.

(1) A person must not engage in tobacco retailing or e-cigarette retailing, or both, unless the person has notified the Secretary, in accordance with this section, that the person intends to engage in retailing of a type so notified.

(1) A person must not obtain a tobacco product, e-cigarette or e-cigarette accessory by wholesale unless the person provides the wholesaler with the retailer identification number.

(1) An inspector may seize any tobacco product that the inspector believes on reasonable grounds is in a person's possession, custody or control in the course of committing, or for the purposes of committing, an offence under Division 2.

(4) A person must not retake or attempt to retake any tobacco product seized under this section or resist or attempt to prevent such a seizure.

(1) A person must not, without reasonable excuse, fail to comply with a requirement or direction of a police officer or an inspector duly made under this Act.

(2) A person must not, in connection with a requirement of a police officer or an inspector made under this Act, provide any information or produce any document that the person knows is false or misleading in a material particular.

Limitation on powers of inspectors

(3) A requirement of an inspector under this Act is not duly made unless, at the time of the making of the requirement–

(a) the inspector has identified himself or herself to the person of whom the requirement is made as an inspector and, on request, produced his or her certificate of authority, and

(b) the person is informed by the inspector that a refusal or failure to comply with the requirement may constitute an offence.

(1) A person must not, without reasonable excuse, resist, obstruct, or attempt to obstruct, a police officer or an inspector in the exercise of the police officer's or inspector's functions under this Act.

(2) A person must not impersonate an inspector.

(1) A person must not pack a tobacco product or e-cigarette in a package that–

(a) contains a statement alluding to sporting, sexual or business success, or

(b) depicts, wholly or in part, people, or

(c) depicts, wholly or in part, cartoon characters, or

(d) depicts scenes or activities, or contains words, representations or illustrations, that have appeal to children or young persons, or

(e) displays a hologram.

Exception to the offence

(2) Subsection (1)(b) does not apply to a package containing cigars if the cigars were packed in the package before 31 August 1999.

(1) A person must not pack a tobacco product in a package that contains a tobacco advertisement on the package's external or internal surfaces unless the advertisement also displays a health warning that–

(a) occupies at least one quarter of the area used for the text and space of the advertisement, and

(b) has a white background, and

(c) contains text in black characters in the form set out in Schedule 1, Form 1 in approximately the same proportions of character size and empty space as the form.

Exception to the offence

(2) Subsection (1) does not apply to an advertisement printed only on tobacco products in the package.

(1) The occupier of a shop or other retail outlet from which tobacco products are sold must ensure that a health warning is displayed in accordance with this section.

(2) The health warning must–

(a) be at least 50cm but not more than 100cm wide, and

(b) be at least 2,000cm 2 but not more than 3,200cm 2 in area, and

(c) have a white background, and

(d) contain text in black characters in the form set out in Schedule 1, Form 1 in approximately the same proportions of character size and empty space as the form.

(3) The health warning must be conspicuously displayed at the point of sale of tobacco products in the shop or other retail outlet.

(1) The occupier of a shop or other retail outlet from which tobacco products are sold must ensure that a health warning is displayed in accordance with this section.

: Maximum penalty–25 penalty units.

(2) The health warning must–

(a) be at least 50cm but not more than 100cm wide, and

(b) be at least 2,000cm 2 but not more than 3,200cm 2 in area, and

(c) have a white background, and

(d) contain text in black characters in the form set out in Schedule 1, Form 1 in approximately the same proportions of character size and empty space as the form.

(3) The health warning must be conspicuously displayed at the point of sale of tobacco products in the shop or other retail outlet.