The Display of Tobacco Prices
Enforcement Guide
This guidance is provided to assist with the enforcement of legislation in relation the display of tobacco prices. All retailers are subject to restrictions on the display of tobacco products and smoking related products. Those restrictions also include provisions for the display of prices.
The legislation is set out in Tobacco and Primary Medical Services (Scotland) Act 2010 and The Sale of Tobacco (Display of Tobacco Products and Prices) (Scotland) Regulations 2013
Guidance was provided by the Scottish Government and can be found here.
Contents
Price Marking Order 2004 ...... 1 The Display of Tobacco Products and Prices ...... 2 Price Displays – General ...... 3 Displayed Price List ...... 4 Requested Price List ...... 6 Price labels ...... 7 Imperial Tobacco Price Lists ...... 9 Offences...... 11
1
Price Marking Order 2004
Retailers of electronic cigarettes, e-liquids, tobacco products and smoking related products must ensure that they are complying with the Price Marking Order 2004 (PMO).
Article 4 of the PMO states - where a trader indicates that any product is or may be for sale to a consumer, he shall indicate the SELLING PRICE of that product.
The order defines SELLING PRICE as the final price for a given quantity of a product, including VAT and all other taxes.
Article 7 states that an indication of the selling price shall be —
• Unambiguous, easily identifiable and clearly legible,
• given in proximity to the product, and
• so placed as to be available to consumers without the need for them to seek assistance from the trader or someone on his behalf in order to ascertain it.
Normally a retailer will indicate a product is on offer for sale by placing it on a shelf or in the shop window and would be obliged to have an accompanying price indication. Tobacco products are prohibited from being on display so will not be on an open shelf. As they are not on display they are not on offer for sale. Electronic cigarettes and e-liquids (NVPs), which are on offer for sale, must have an accompanying price indication.
Smoking related products will also be hidden if they are sold in premises which also sell tobacco products.
Advertisements for tobacco products and their promotion are prohibited under the Tobacco Advertising and Promotion Act 2002 (TAPA).
How then can a retailer sell tobacco products? They cannot have them on display and they cannot advertise to customers that they are for sale.
Some retailers may indicate that they sell tobacco products by putting up a general sign which simply states “Tobacco Sold Here” or “Cigarettes Sold Here”. This is fine. However, if they go further and put up signs which state the name of an individual brand or have a picture of a tobacco product it would become an advertisement. “Benson & Hedges Sold Here” is not allowed.
2
The Display of Tobacco Products and Prices
The Sale of Tobacco (Display of Tobacco Products and Prices etc.) (Scotland) Regulations 2013 (DTPP) does allow tobacco and smoking related products to be displayed temporarily in some circumstances. The main reason would be their display following requests by customers to buy or see the products.
When a product is displayed it is an indication that it is for sale and it must therefore comply with the PMO and include a displayed price. However, if the tobacco products are displayed with a price, each would be an advertisement under TAPA, which is not allowed. The two obligations are contradictory.
Regulation 19 of DTTP clarifies this situation and states that if tobacco and smoking related products are displayed with a price, and the display complies with the DTTP regulations then the display of the price or prices is not a tobacco advertisement.
The DTTP regulations set out three different ways a retailer can display tobacco and smoking related product prices.
Retailers can utilise one or more of these methods –
1. The display of a price list. 2. Requested price list. 3. Price labels.
Retailers must have regard to the requirements of the PMO when they are selecting how to display their prices. The price must be unambiguous, easily identifiable and clearly legible. It should also be in close proximity to the product.
Legibility is dependent on several factors -
a. The size and style of the font,
b. the distance between the price indication and the customer, and
c. the ability of the customer to see.
Not all of the permitted methods will be suitable for every retailer. It is up to the retailer to decide the best method(s) for their premises. Compliance with the DTTP regulations does not always mean compliance with the PMO.
3
Price Displays – General
Price displays must ONLY include –
• the brand name of the product;
• the price of the product;
• where pre-packed, the number of units in the package or, where sold by weight, the net weight of the product;
• in relation only to cigars, the country of origin and the dimensions;
• in relation only to pipe tobaccos, the cut and type of tobacco used.
This information must be written –
• using black Helvetica or Arial bold or plain type on a white background,
• in type which has a consistent size throughout the text, and
• in lower case type except that the first letter of a word may be in upper case type.
4
Displayed Price List
• Must be titled “Tobacco products/Smoking related products price list”.
• It may include sub-headings for “cigarettes”, “hand rolling tobacco”, “cigars”, “pipe tobaccos”, “other tobacco products” and “smoking related products”.
• Must not include the prices of any other products.
• Must be worded with characters no higher than 7 millimetres.
• It cannot have a border or frame.
• Must not exceed 1250 square centimetres in size (equivalent to A3).
• Must not contain pictures.
• Only one price list is permitted for each separate area where tobacco products are located and can be paid for. The exception is for locations where there is more than one till in which case one price list is allowed for each till.
Such a price list is always on display.
5
Example of Tobacco and Smoking Related Products Price List
Cigarettes
Rothmans Value Blue Superkings 20 Pack £9.99 Vogue Perle Capsule 20 Pack £9.60 Rothmans Value Blue King Size 20 Pack £9.99 Royals Blue King Size 20 Pack £9.55 Superkings Black 20 Pack £9.25 Rothmans Blue King Size 20 Pack £9.25 Royals Red King Size 20 Pack £9.55 Superkings Menthol 20 Pack £9.55 Rothmans Value Silver King Size 20 Pack £9.99 Royals Red Superkings 20 Pack £9.59 Royals Red King Size 20 Pack £9.88 Windsor Blue Superkings 20 Pack £9.13 Rothmans Menthol Superkings 20 Pack £9.99 St Moritz Menthol 20 Pack £9.50 Regal King Size 20 Pack £9.38 Royals Red King Size 20 Pack £9.18 Pall Mall Blue King Size 20 Pack £9.65 Windsor Blue Menthol 20 Pack £9.13 Pall Mall Red Superkings 20 Pack £9.65 Pall Mall Red King Size 20 Pack £9.70 Superkings Blue 20 Pack £9.25 Pall Mall Blue King Size 20 Pack £9.70 Pall Mall Blue Superkings 20 Pack £9.65 Windsor Blue King Size 20 Pack £9.11 Pall Mall Silver King Size 20 Pack £9.65 Superkings White 20 Pack £9.25 Consulate Menthol 20 Pack £9.25 Superkings 20 Pack £9.00 Pall Mall Red King Size 20 Pack £9.65 Players Navy Cut 20 Pack £9.72 JPS Black King Size 20 Pack £9.27
Hand Rolling Tobacco
Amber Leaf Roll Your Own 25G £9.45 JPS Roll Your Own 25G £9.54 Sterling Roll Your Own 25G £9.98 American Spirit Roll Your Own 25G £9.88 Cutters Choice A True Blend 25G £9.51 Golden Virginia Yellow RYO 25G £9.35
Cigars
Panama Slim Panatelas 6 Pack £8.11
Pipe Tobacco
St Bruno Ready Rubbed 50G £12.60 Gold Block 50G £12.53
Other Tobacco Products
Blunt Wraps £1.00
Smoking Related Products
Swan Slim Filter Tips 102s £0.85 Swan Menthol Extra Slim Filters 120s £1.00 Rizla Liquorice Papers £0.38 Rizla Green Papers £0.26 Rizla Blue Slim King Size Papers £0.77 Rizla Red King Size Papers £0.67
6
Requested Price List
Requested price lists are kept out of view. A sign will normally indicate that the tobacco prices are available on request.
• Must be worded with characters no higher than 4 millimetres.
• Colour pictures of the tobacco products are permitted no larger than 50sq cm.
• Only one requested price list is permitted for each separate area where tobacco products are located and can be paid for. The exception is for locations where there is more than one till in which case one price list is allowed for each till.
Up until the time when the trader provides the price list from under the counter he is not indicating that any particular product is available for sale. Asking to see the price list is not contrary to the PMO. After the consumer has been given the price list and is then aware that particular products are for sale, the information in the price list must enable them to ascertain the prices without the need for them to seek assistance from the retailer.
Price lists with pictures must only be available for as long as necessary for the consumer to make their choice. They should never be left out on a counter or table.
Benson & Hedges Blue King Size
20pk £9.65
Rothman King Size Blue
20pk £9.65
7
Price labels
On the storage unit where the particular tobacco product or smoking related product is held pending sale, price labels may either be placed on the outside of the opening flap or they may be underneath the flap on the covered shelving.
• They must be worded with characters no higher than 4 millimetres.
• The price label can be no larger than 9sq cm. However it is possible to include this 9sq cm area on a larger label which also includes a barcode.
• Only one label is permitted for each separate location in a storage unit where a particular tobacco product or smoking related product is held
Price labels on the outside of opening flap will be on permanent display.
These indicate that a particular product is for sale and therefore they must be clearly legible and unambiguous.
No products are on display. To be unambiguous the price label must also contain the brand name of the tobacco product and the quantity. Adding additional information could make the label an advertisement.
Price labels inside the storage unit where tobacco products or smoking related products are held pending sale are only visible when the flap is opened. Until the trader opens the flap there is no indication that a particular product is for sale. Once it is opened then the labels should be clearly legible and unambiguous.
To be unambiguous they must be in proximity to the product.
a. Since the introduction of plain packaging, if the price label only includes a price it is meaningless unless it is possible for customers to read the brand names printed on the packets.
b. If the brand names on the products are not legible to customers they must also be included on the labels.
Price labels must only be visible with the product for as long as necessary. Prolonged exposure will make them an advertisement.
8
Example Sizes for Price Labels –
Rothmans Regal King Size Val Blue 3cm x 3cm 20pk £9.38 SKs 20pk £8.99
2cm x 4.5cm
20pk Rothmans Val Blue SKs £8.99
1cm x 9cm
9
Imperial Tobacco Price Lists
In many small stores there are cigarette gantries owned by Imperial Tobacco Limited (IT). When the display ban was introduced in 2015, many retailers entered into contracts with IT in return for them converting/replacing the tobacco gantries. Terms in these contracts mean that the retailer has to follow IT schematic plans which require them to place all IT products in the middle of the gantry. They also control how prices are displayed.
IT initially supplied retailers with small magnetic numbers to place on the shelf edges of the gantries to display a price. Shops complained that these numbers were always falling off, as they were small and awkward. Most shops did not use these numbers. Many of these retailers were buying price marked packets from the wholesalers and there was not much of a pricing problem. However, with the advent of plain packaging, price marked packets are no longer available. Shops need to find another way to display their tobacco products’ prices
In the latter part of 2016 price lists began to appear on the Imperial Tobacco gantries. The lists were supplied by IT and placed on the gantry, split into five parts as illustrated below.
These signs do not comply with the Regulations. There is an easy argument to make that the total area of these signs extends to an area larger than A3 size, they are therefore too big.
This argument was accepted by IT, who then came up with a new price list. The new price list has the same font and only contains prices of Imperial Tobacco products. It has not been cut into pieces. The list is two A4 sized sheets placed side by side at the top of the gantry or nearby wall. 10
The new price list complies with the Regulations in regard to size and font. It contains prices for 20 Imperial Tobacco brands. There is no requirement in the Regulations that every tobacco product must appear on a price list.
Even though the list is promoting the IT brand products it is not a tobacco advertisement by virtue of Article 17 of the Regulations.
There are no grounds for seizing this sign.
The retailer must comply with the Price Marking Order 2004 - all tobacco products must be priced.
If the retailer was to utilise another menu style price list to display the price of the other brands of tobacco products, there will then be 2 price lists, which is not allowed under article 15(2). The retailer cannot employ this method to display these prices.
A retailer who has to display an Imperial Tobacco price list can only really comply with the Price Marking order by having price labels for all the other tobacco products or by having a price list available on request.
11
Offences
1. No prices displayed, prices are ambiguous or prices are not legible
If there are no prices displayed when the products are offered for sale this will be contrary to the Price Marking Order 2004.
Under the Prices Act 1974 there is a requirement to serve on the person charged a notice in writing of the date and nature of the offence alleged. The notice must be served within 30 days from the date of the offence.
The time limit under the Prices Act is 3 months.
2. The prices are incorrect
If the price displayed is not the same as the selling price when the product is offered for sale this could be contrary to the Consumer Protection from Unfair Trading Regulations 2008.
3. Too much information – A Tobacco Advert
If the price display includes information other than specified in the Sale of Tobacco (Display of Tobacco Products and Prices) (Scotland) Regulations 2013 it could be a tobacco advertisement.
4. Price display does not conform to DTTP – too big, too many etc.
Price displays which do not conform to the DTTP Regulations. Enforcement - The Tobacco and Primary Medical Services (Scotland) Act 2010.
As an alternative to the submission of a report to the Procurator Fiscal the offence could be subject to the Fixed Penalty Notice scheme as outlined in The Sale of Tobacco (Registration of Moveable Structures and Fixed Penalty Notices) (Scotland) Regulations 2010.