Tobacco retailers incorporating Certified Specialist Tobacconists Part B If you would like to receive this publication in an accessible format, please phone 9096 0469 using the National Relay Service 13 36 77 if required, or email tobacco[email protected]
Published by Prevention and Population Health Branch, Victorian Government Department of Health, Melbourne Australia
© Copyright State of Victoria, Department of Health, 2011.
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Authorised by the State Government of Victoria, 50 Lonsdale Street, Melbourne 3000
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July 2011 (1107024) Tobacco retailers incorporating Certified Specialist Tobacconists Part B Contents
1.0 General tobacco retailers 1
1.1 Certified Specialist Tobacconists 1
1.2 Vending machines 1
2.0 Breaches concerning Certified Specialist Tobacconists 2
3.0 Complaints 3
3.1 Education and enforcement requirements under the MAV when a complaint is received 3
4.0 Education 4
4.1 Education visits to general tobacco retailers 4
4.2 Education visits to Certified Specialist Tobacconists 4
5.0 Enforcement 6
6.0 Evidence 12
7.0 Tobacco products banned under Victorian Government Gazette 16
7.1 List of tobacco products banned under Victorian Government Gazette 17
8.0 Tobacco Act educational visit checklist 18
9.0 Tobacco retailer interview 22 1.0 Tobacco retailer (including vending machines)
Tobacco retailers include milk bars, newsagents, supermarkets, convenience stores, bottle shops, a bar where cigarettes are sold behind the bar area, vending machines and any other business selling tobacco by retail.
From 1 January 2011, tobacco products and packaging must not be visible to the public from anywhere inside or outside the retail outlet. Tobacco products include cigarettes and loose tobacco and cigars, whether or not they are in a humidor. Tobacco packaging includes individual packets of cartons, cigarettes, cigars and loose tobacco.
1.1 Certified Specialist Tobacconists Certified Specialist Tobacconists are exempt from the display ban which commenced on 1 January 2011. A Certified Specialist Tobacconist has met a number of criteria assessed by the Department of Health (the department). Certified Specialist Tobacconists remain subject to the display and advertising restrictions in place prior to 1 January 2011.
A Certified Specialist Tobacconist is a retail tobacco business which:
• derives 80% or more of its gross turnover for the preceding 12 months from the sale of tobacco products • operates from a premises which is separated from other retail premises by a wall • operates from a premises which does not open directly to another retail business • does not sell or display products or services designed for children or adolescents • does not sell dairy products, bread and bakery cereals or food or beverages other than low-risk, shelf stable foods and beverages • clearly identifies itself as a specialist tobacconist through the use of external branding containing the words; tobacco and/or tobacconist and/or cigarettes • does not identify itself as a newsagent through external or internal branding and only sells local, state and national/daily/weekly newspapers • is certified by the Secretary, Department of Health.
1.2 Vending machines Vending machines can only be located in the following locations:
• in the line of sight of the bar in a licensed premises (premises which hold either a general, on- premises or club liquor license), not more than 5 metres from the outer edge of the bar counter • in the line of sight of the service counter in a gaming venue and the casino • immediately adjacent to the service counter of a bottle shop.
A vending machine is considered a tobacco retail outlet and therefore tobacco products or packaging must not be visible inside or outside of the vending machine. Price tickets can be displayed to show price and other information about tobacco products for sale.
Tobacco retailer signs, including the A3 black and white health warning and A4 blue and white U/18s signs, must be displayed.
1 2.0 Certified Specialist Tobacconists (breaches of the Tobacco Act 1987 and non compliance with certification criteria)
To receive certification as a specialist tobacconist, a retailer must meet the criteria set out and developed under section 15U(2) of the Tobacco Act 1987 (the Act) and comply with all requirements of the Act and Tobacco Regulations 2007.
The Department requests that any Certified Specialist Tobacconist found breaching the Act or Regulations, or which does not satisfy any criteria stated and developed under 15U(2) (see section 8 for details) be reported for monitoring by the department.
Please provide the following details as soon as the breach or non-conformity with criteria is identified:
1. Contact details of the Environmental Health Officer or inspector 2. Name and address of the certified specialist tobacconist 3. Proprietor (if known) 4. Date and time of the substantiated breach or non-conformity with criteria 5. Description of the substantiated breach or non- conformity with criteria 6. Evidence obtained (including attached photos, notes or statements) 7. Reasons provided by the proprietor for the breach 8. Action taken
Please email [email protected] or phone 9096 0469 with this information. Your assistance is greatly appreciated.
Alternatively you may wish to scan and email the Tobacco Act educational visit checklist, including any photos to the department. Should you notice any products or services for children at a Certified Specialist Tobacconist we would also request photos of the products or services in question.
Grounds for cancellation of certification include:
• Non compliance with the Tobacco Act 1987. Breaches are described in section 4.0. • Not satisfying the criteria specified and developed under section 15(U)(2) of the Tobacco Act 1987. Please refer to the Certified Specialist Tobacconist checklist and explanatory notes (Section 8). If an Environmental Health Officer or inspector is unsure about assessing criteria, it is requested a photograph be taken and provided to the department.
The department will assess the seriousness and extent of all breaches and non-compliance with criteria; some situations may result in cancellation of certification.
2 3.0 Complaints
3.1 Education and enforcement requirements under the MAV agreement when a complaint is received The following table is a guide as to whether an educative or enforcement approach should be considered after a complaint is received, however, it is suggested that each complaint be assessed on a case-by-case basis.
Table 1 below outlines the suggested action that may be taken after a tobacco retailer complaint is received. Table 1
Complaint Complaint type number Suggested action Both general retailers 1st complaint The local council to conduct an educational visit. and Certified Specialist Tobacconists 2nd and The local council to conduct an enforcement visit (not including cigarette subsequent with the intention of taking enforcement action if sales to minors) complaints enough evidence is obtained to substantiate the complaint. Cigarette sales to minors 1st and Local council to conduct a test purchase. (councils conducting test subsequent purchasing) complaints
Cigarette sales to minors 1st and Local council to conduct an educational visit. (councils not conducting subsequent test purchasing) complaints
Please note Certified Specialist Tobacconists found breaching the Tobacco Act 1987 or not satisfying the criteria stated and developed under section 15U(2) must be reported to the department. See section 2.0
3 4.0 Education
4.1 Education visits to general tobacco retailers When an education visit is provided to a tobacco retailer, the inspector should:
• Inform the tobacco retailer about their legislative responsibility to train staff or anyone who helps behind the counter at least every six months in an attempt to prevent the sale of cigarettes to minors (refer to page 9 of the Tobacco Retailer Guide published for tobacco retailers). • Ensure the retailer is aware of what identification they should sight before selling cigarettes. • Inform the retailer they must not sell single cigarettes or cigarettes in a packet less than 20. • Ensure tobacco products and packaging are not visible to the public anywhere inside or outside the shop (Certified Specialist obacconistsT are exempt from point of sale display and advertising bans). • Explain that a storage unit containing tobacco products may only be opened when a customer requests to purchase a specified tobacco product (see page 21 of the Tobacco Retailer Guide). • Ensure that a graphic health warning sign is placed on or immediately adjacent to the price notice if a price notice is used. • Ensure the A3 black and white health warning and A4 blue ‘We don’t sell tobacco to u/18s’ signs are clearly displayed at the point of sale or near the entrance to the premises. • Ensure there is no tobacco advertising in the store (inc. non-branded tobacco advertising such as a backlit sign of lighters and/or matches). • Ensure there are no cheap or discount cigarette signs.
4.2 Education visits to Certified Specialist Tobacconists The inspector should:
• Inform the tobacco retailer about their legislative responsibility to train staff or anyone who helps behind the counter at least every six months in an attempt to prevent the sale of cigarettes to minors (refer to page 19 of the Specialist Tobacconist Guide published for Certified Specialist Tobacconists). • Ensure the retailer is aware of what identification they should sight before selling cigarettes. • Inform the retailer they must not sell single cigarettes or cigarettes in a packet less than 20. • Ensure product lines are displayed correctly. • Ensure there is only one display and that it is at point of sale. • Ensure the Certified Specialist Tobacconist certificate is displayed in a conspicuous location. • Ensure the A3 black and white health warning and A4 blue ‘We don’t sell tobacco to u/18s’ signs are clearly displayed at the point of sale or near the entrance to the premises. • Ensure there is no tobacco advertising in the store (inc. non-branded tobacco advertising such as a backlit sign of lighters and/or matches). • Ensure there are no cheap or discount cigarette signs. • Ensure there are no cigarette cartons displayed.
4 In addition, a Certified Specialist Tobacconist needs to meet the following criteria. The inspector should:
• Ensure the business operates from a premises which is separated from other retail premises by a wall and does not open directly to another retail premises. • Ensure the business does not sell or display products or services designed for children or adolescents. • Ensure the business does not sell dairy products, bread and bakery products, breakfast cereals or food or beverages other than low-risk, shelf stable foods and beverages. • Ensure the business does not identify itself as a newsagent through internal or external branding and only sells local, state and national/daily/weekly newspapers. • Ensure the business identifies itself as a specialist tobacconist through the use of external branding.
A full list of offences for tobacco retailers is listed in table 2 on the following page. When conducting a visit to a general retailer or Certified Specialist Tobacconist, inspectors should be aware of these offences. If there is a new product or display and it is not obvious as to whether it is a breach, a photograph or notes should be taken before contacting the Department of Health.
A checklist for conducting an education visit to a tobacco retailer is provided in section 8 of this protocol.
5 5.0 Enforcement
The Act gives inspectors the power to enter the public area of a tobacco retailer outlet and go behind the counter to inspect tobacco displays without having to obtain written consent. Refer to the ‘Powers’ section of Part A of this protocol for more information about powers.
The inspector has the discretion (in line with their council policy) to determine the type of enforcement action to take when there is a breach of the Act. A guide to the type of enforcement action that may be taken is in the ‘Enforcement’ section of Part A of this protocol.
Table 2 below outlines all the offences related to tobacco retailers. Table 2
Brief description Offence Section no. of offence Person responsible Penalty (maximum)
Display of 6(2) Examples of breaches of this Proprietor of the business, Natural person a tobacco offence include: and the tobacco company if 60 penalty units if prosecuted advertisement • display of cheap or the company intentionally or Body Corporate that is visible discounted cigarette signs recklessly contravenes the from a public • non-branded tobacco section, or causes another 5,000 penalty units for a place advertising such as backlit person to contravene tobacco company signs with a picture of a lighter the section. • any other form of tobacco advertising.
Display of 6(2AA) for • Tobacco products or Proprietor of the business, Natural person a tobacco a general packaging visible. and the tobacco company if 3 penalty units for an advertisement retailer the company intentionally or infringement and 60 penalty at a general recklessly contravenes the units if prosecuted retail outlet section, or causes another Body Corporate (tobacco person to contravene products and the section. 30 penalty units for an packaging) infringement and 300 penalty units if prosecuted 5,000 penalty units for a tobacco company
Display of 6(2AA) for Price notices/board: Proprietor of the business, Natural person a tobacco a general • using more than four colours and the tobacco company if 3 penalty units for an advertisement retailer. • using fluorescent colours the company intentionally or infringement and 60 penalty at a general recklessly contravenes the 6(2A) for • forming an image or visual effect units if prosecuted retail outlet section, or causes another a Certified and Certified • highlighted by artificial lighting person to contravene Body Corporate Specialist Specialist greater than that used in the the section. 30 penalty units for an Tobacconist Tobacconist. rest of the premises. infringement and 300 penalty • bigger than 1.5m by 1.5m (price notices/ units if prosecuted boards) • having lettering bigger than 5,000 penalty units for a 2.1cm high and 1.5cm wide. tobacco company Price notice/board: • without a graphic health warning sign immediately on or adjacent to the notice/board (general retailer only) • in excess of 1 (general retailer only).
6 Table 2 (cont.)
Brief description Offence Section no. of offence Person responsible Penalty (maximum)
Display of 6(2AA) for Price tickets being displayed Proprietor of the business, Natural person a tobacco a general and clearly visible at a and the tobacco company 3 penalty units for an advertisement retailer. general retailer. if the company intentionally infringement and 60 at a general or recklessly contravenes the 6(2A) for Price tickets at a Certified penalty units if prosecuted retail outlet section, or causes another a Certified Specialist Tobacconist or and Certified person to contravene Body Corporate Specialist on a vending machine: Specialist the section. 30 penalty units for an Tobacconist • larger than the largest Tobacconist infringement and 300 penalty tobacco package on display (price tickets) 6(2AA) for units if prosecuted a vending • have lettering more than 5,000 penalty units for macihne 1 cm wide or 2.1 cm high • more distinctive than price a tobacco company tickets or labels used in the rest of the retail outlet • using more than four colours • using fluorescent colours • form an image or visual effect • highlighted by artificial lighting greater than that used in the rest of the premises.
Product line 6(2A) When more than one product Proprietor of the business, Natural person display offence line is displayed (see page and the tobacco company if 3 penalty units for an (Certified 12 of the Specialist the company intentionally or infringement and 60 penalty Specialist Tobacconist Guide). recklessly contravenes the units if prosecuted Tobacconist section, or causes another only) person to contravene Body Corporate the section. 30 penalty units for an infringement and 300 penalty units if prosecuted 5,000 penalty units for a tobacco company
Display of 6(2A) Cartons cannot be displayed Proprietor of the business, Natural person cartons in a tobacco retail outlet and the tobacco company if 3 penalty units for an (Certified (except at an on airport duty the company intentionally or infringement and 60 penalty Specialist free outlet). recklessly contravenes the units if prosecuted Tobacconist section, or causes another Body Corporate only) person to contravene the section. 30 penalty units for an infringement and 300 penalty units if prosecuted 5,000 penalty units for a tobacco company
7 Table 2 (cont.)
Brief description Offence Section no. of offence Person responsible Penalty (maximum)
Display area 6(2A) The tobacco display area in Proprietor of the business, Natural person exceeds 4m2 a retail outlet should not and the tobacco company if 3 penalty units for an (Certified exceed 4m2 (excluding cigars the company intentionally or infringement and 60 penalty Specialist in an operating humidor). recklessly contravenes the units if prosecuted Tobacconist See page 14 of the Specialist section, or causes another Body Corporate only) Tobacconist Guide. person to contravene the section. 30 penalty units for an infringement and 300 penalty units if prosecuted 5,000 penalty units for a tobacco company
More than 13 6(2A) Cigars should be displayed in Proprietor of the business, Natural person cigars are on the following manner: and the tobacco company if 3 penalty units for an display in an (i) up to 13 cigars of the the company intentionally or infringement and 60 penalty open box, or product line in an open box, recklessly contravenes the units if prosecuted more than one or in any other matter, or section, or causes another Body Corporate box of cigars of (ii) a single closed box full of person to contravene 30 penalty units for an a product line the product line in the form the section. infringement and 300 penalty are on display in which the box is available units if prosecuted (Certified for sale at the point of sale. Specialist 5,000 penalty units for a Tobacconist tobacco company only)
Display of 6(2B) A Certified Specialist Proprietor of the business, Natural person tobacco Tobacconist can only display and the tobacco company if 3 penalty units for an products in an tobacco products at a point the company intentionally or infringement or 60 penalty area other than of sale. recklessly contravenes the units if prosecuted at the point of section, or causes another sale (Certified person to contravene Body corporate Specialist the section. 30 penalty units for an Tobacconist infringement and 300 penalty only) units if prosecuted. 5,000 penalty units for a tobacco company
Gifts or benefits 7 Non-tobacco products cannot Person who provides the Natural person be offered in connection with product or the tobacco 60 penalty units if prosecuted tobacco products. company if they cause another person to Body corporate contravene this section. 300 penalty units if prosecuted
Free samples 8 Must not give or distribute a fee Person who provides the Natural person sample of tobacco or a product product or the tobacco 60 penalty units if prosecuted which advertises a tobacco company if they cause product. another person to Body corporate contravene this section. 300 penalty units if prosecuted
8 Table 2 (cont.)
Brief description Offence Section no. of offence Person responsible Penalty (maximum)
Packaging of 11 Tobacco packages must have Person who sells. Natural person tobacco that appropriate health warning 120 penalty units if is not labelled messages as per Trade prosecuted appropriately Practices (Consumer Product Information Standards)(Tobacco) Body corporate Regulations 2004. 600 penalty units if prosecuted
Possession of 11A A tobacco retailer must not Proprietor of the business. Natural person black market possess black market tobacco 60 penalty units if prosecuted tobacco without reasonable excuse. Body corporate 300 penalty units if prosecuted
Cigarettes sold 12(1) * This offence is covered Person (primary offender) Natural person to a person in the Cigarette Sales to who sells 4 penalty units for an under the age Minors Protocol.* infringement and 120 penalty of 18 years. units if prosecuted Offence by the primary Body corporate offender 60 penalty units infringement and 600 penalty units if prosecuted
Purchase of 12(2) * This is referred to as a secondary Person who purchases Natural person a tobacco supply offence and occurs when the tobacco. 2 penalty units for an product for the an adult purchases cigarettes for infringement or 20 penalty use of a person a minor. units if prosecuted. under the age of 18 years Body corporate 12 penalty units for an infringement or 100 penalty units if prosecuted
Person under 12(3) * A person allows another person The proprietor or occupier Natural person the age of 18 under the age of 18 to obtain of the area where the vending 3 penalty units for an purchases a tobacco product from a machine is positioned. infringement or 60 penalty tobacco from vending machine situated on the units if prosecuted a vending premises which is occupied by machine the first-mentioned person. Body corporate 30 penalty units for an infringement or 300 penalty units if prosecuted
Vending 13(1) Vending machines can The proprietor of the hotel Natural person machine placed only be placed: and/or the vending machine 3 penalty unit for an incorrectly • in the bar area of a licensed company who placed the infringement or 60 penalty premises in line of sight of vending machine. units if prosecuted a bar Body corporate • in an approved venue (pokies venue) or casino in line of sight 30 penalty units for an of a service counter infringement and 300 penalty • in a bottle shop immediately units if prosecuted adjacent to the service counter of the bottle shop.
9 Table 2 (cont.)
Brief description Offence Section no. of offence Person responsible Penalty (maximum)
Mobile selling 13(A)(1) A person must not (in the course The person who sells and the Natural person of cigarettes of carrying on a business or in person who authorises the 4 penalty unit for an the course of employment) sell person to sell. infringement or 120 penalty any tobacco product that is units if prosecuted carried about on their person.
Single 14 A person must not sell single The person who sells. Natural person cigarettes or cigarettes or cigarettes in a 3 penalty unit for an cigarettes sold packet of less than 20. infringement or 120 penalty in a packet of units if prosecuted less than 20 Body Corporate 60 penalty units for an infringement and 600 penalty units if prosecuted
Smokeless 15 A person must not manufacture The person or company who Natural person tobacco or sell a tobacco product other sells or manufactures. 120 penalty units if e.g. snus than a product prepared prosecuted or chewing for smoking. tobacco Body corporate 600 penalty units if prosecuted
Failure to 15C(1) A health warning sign or a sign The proprietor of the business Natural person display the relating to programs assisting in 2 penalty units for an health warning the cessation of smoking must infringement or 10 penalty sign or a be displayed in a manner that units if prosecuted sign relating ensures that it is clearly visible— to programs (i) at an entrance to the Body Corporate assisting in the premises; or 5 penalty units for an cessation of (ii) at a point of sale on infringement or 50 penalty smoking the premises. units if prosecuted
Failure to 15C(3) A ‘We Don’t Sell Tobacco To The proprietor of the business. Natural person display the U/18’s’ sign must be displayed 2 penalty units for an sign relating to in a manner that ensures that it infringement or 10 penalty the prohibition is clearly visible— units if prosecuted of the sale of (i) at an entrance to the tobacco to premises; or Body corporate persons under (ii) at a point of sale on the 5 penalty units for an the age of 18 premises. infringement or 50 penalty years units if prosecuted
Sale of 15L(1) A person selling tobacco from The proprietor of the business. Natural person tobacco from a temporary outlet such as a 3 penalty units for an a temporary stand, booth, tent, enclosure, infringement or 60 penalty outlet temporary or mobile structure. units if prosecuted Body corporate 30 penalty units for an infringement and 300 penalty units if prosecuted
10 Table 2 (cont.)
Brief description Offence Section no. of offence Person responsible Penalty (maximum)
Sale of tobacco 15L(2) A person selling tobacco from The proprietor of the business. Natural person from a a point a retail outlet where a sporting, 3 penalty units for an of sale that is music or arts event infringement or 60 penalty in a retail outlet is occurring. units if prosecuted for the duration of a sports, Body Corporate music or art 30 penalty units for an related function infringement and 300 penalty in the premises units if prosecuted or area
Selling a 15S(1) The Minister, by order The wholesaler or retailer. Natural person product that published in the Government 4 penalty units for an has been Gazette may ban a product or infringement or 120 penalty banned under class of product. units if prosecuted a Ministerial ban order Body corporate 60 penalty units for an infringement or 600 penalty units if prosecuted
Failure to 15ZB A Certified Specialist The proprietor of the Certified Natural person display a Tobacconist must display a Specialist Tobacconist. 1 penalty unit for an specialist certificate in a conspicuous infringement or 10 penalty tobacconist position within the retail outlet. units if prosecuted certificate in a retail outlet Body corporate 5 penalty units for an infringement or 50 penalty units if prosecuted
*Refer to the cigarette sales to minors protocol
It should be noted that infringements cannot be issued for all offences. The PERIN codes table (in Part A of this protocol) should be used as a reference to determine if an infringement can be issued for a particular offence. If the offence is not listed on the PERIN codes table, then it will be necessary to proceed by way of prosecution.
The Act makes a tobacco company guilty of an offence if it intentionally or recklessly causes another person to contravene sub- sections 6 (1), (2), (2AA), (2A) or 2(B). A maximum 5000 penalty units can apply. Therefore, if an inspector becomes aware of any situations where a tobacco company has caused a retailer to contravene the Act, they should collect relevant evidence if it is available and contact the Department of Health.
11 6.0 Evidence
In order to take enforcement action for tobacco retailer offences under the Act, a statement from the inspector is required and a photo of the offence should be taken where possible. An interview should also be conducted with the tobacco retailer.
An interview proforma plan for conducting an enforcement interview with a tobacco retailer is provided at the end of this section.
Table 3 below outlines the suggested evidence required to take enforcement action for tobacco retailer breaches. Table 3
Offence Offence description Evidence required
6(2) Display of a tobacco • photo of the tobacco advertisement advertisement that is • statement from an inspector outlining that the inspector witnessed the breach visible from a public • identification of the person who placed the advertisement, obtained through place an interview • there may be a need to interview other staff members to determine who placed the advertisement.
6(2AA) Display of a tobacco • photo of the tobacco display area including tobacco products and packaging clearly advertisement at a visible and/or retail outlet (general • photo of visible and clearly legible price tickets or labelling that constitutes a tobacco retailer only) advertisement if observed and/or • photo of the non compliant price notice/board if observed • statement from an inspector who witnessed the breaches including that the inspector verified there was no equestr for a specified a tobacco product • identification of the person carrying on the tobacco retailing business, obtained through an interview.
6(2AA) Display of a tobacco • photo of non-compliant price tickets on the vending machine advertisement at a • statement from an inspector who witnessed the breaches retail outlet. (vending • identification of the person carrying on the tobacco retailing business, obtained machine) through an interview.
6(2A) Product line display • photo of the product line offence offence (Certified • statement from an inspector outlining that the inspector witnessed the breach Specialist Tobacconist • identification of the person carrying on the tobacco retailing business, obtained only) through an interview.
6(2A) Display of cartons • photo of the cartons on display (Certified Specialist • statement from an inspector outlining that the inspector witnessed the breach Tobacconist only) • identification of the person carrying on the tobacco retailing business, obtained through an interview.
6(2A) Display area • photo of the display area exceeds 4m2. • statement from an inspector outlining that the inspector witnessed the breach, (Certified Specialist including measurements Tobacconist only) • identification of the person carrying on the tobacco retailing business, obtained through an interview.
12 Table 3 (cont.)
Offence Offence description Evidence required
6(2A) More than 13 cigars • photo of the display are on display in an • statement from an inspector outlining that the inspector witnessed the breach open box, or more • identification of the person carrying on the tobacco retailing business, obtained than one box of cigars through an interview. of a product line are on display (Certified Specialist Tobacconist only)
6(2A) Price tickets • photo of the price ticket not displayed in • statement from an inspector outlining that the inspector witnessed the breach accordance • identification of the person carrying on the tobacco retailing business, obtained with regulations through an interview. (Certified Specialist Tobacconist only)
6(2A) Price boards • photo of the price board not displayed in • statement from an inspector outlining that the inspector witnessed the breach accordance with • identification of the person carrying on the tobacco retailing business, obtained regulations. (Certified through an interview. Specialist Tobacconist only)
6(2B) Display of tobacco • photo of the display products in an • statement from an inspector outlining that the inspector witnessed the breach area other than at • identification of the person carrying on the tobacco retailing business, obtained the point of sale through an interview. (Certified Specialist Tobacconists only)
7 Gifts or benefits • witness statement from the person who received the gift or benefit • identification of the person who provided the gift or benefit.
8 Free samples • witness statement from the person who received the free sample • identification of the person who provided the free sample • interview of the alleged offender to prove their intent was to: – induce or promote the sale of a tobacco product, the use of consumption of a tobacco product, or smoking generally.
11 Packaging of tobacco • photo of the tobacco package or seizure of the package that is not labelled • statement from an inspector outlining that the inspector witnessed the breach appropriately • identification of the person who sold the incorrectly packaged product, obtained through an interview.
11A Possession of black • contact the Department of Health if observed or if there is a complaint. market tobacco
12(1)* Cigarettes sold to *See Cigarette Sales to Minors Protocol. a person under the age of 18 years. (offence by the primary offender)
13 Table 3 (cont.)
Offence Offence description Evidence required
12(2) Purchase of a tobacco • statement from an inspector outlining that the inspector witnessed the breach product for the use • identification of the person who purchased the cigarettes obtained through of a person under the an interview age of 18 years • identification of the person whom the cigarettes were purchased for to prove that the person is under the age of 18 years.
12(3A) Cigarettes sold to a *See Cigarette Sales to Minors Protocol. person under the age of 18 years offence by the manager)
13 Vending machine • photo of the vending machine in the incorrect position placed incorrectly • statement from the inspector outlining that the inspector witnessed the breach • identification of proprietor and/or the company who placed the vending machine in the incorrect position, obtained through an interview.
13(A) Mobile selling of • statement from the inspector or witness outlining the mobile selling of cigarettes cigarettes • identification of the person who sold and/or the person who authorises the person to sell, obtained through an interview/s.
14 Single cigarettes • the cigarette/s (which were purchased by a test purchase assistant) or cigarettes sold • statement from test purchase assistant outlining the purchase of the cigarette/s in a packet of less • identification of the person who sold than 20 • statement from inspector identifying the seller and outlining any interviews conducted.
15 Smokeless tobacco • photos showing the manufacture or sale of smokeless tobacco (if possible) e.g. snus or chewing • statement from a person who had purchased smokeless tobacco tobacco • identification of the person who manufactured or sold the smokeless tobacco, obtained through an interview • statement from inspector identifying the seller and/or manufacturer and outlining any interviews conducted.
15C(1) Failure to display the • photos showing that signage is not displayed health warning sign • statement from inspector outlining the inspector’s observation that inadequate or no or a sign relating to signage was being displayed programs assisting • identification of the occupier, obtained through an interview. in the cessation of smoking
15C(3) Failure to display the • photos showing that signage is not displayed sign relating to the • statement from inspector outlining the inspector’s observation that inadequate or no prohibition of the sale signage was being displayed of tobacco to persons • identification of the occupier, obtained through an interview. under the age of 18 years
15L(1) Sale of tobacco from • photos of the temporary outlet a temporary outlet • statement from inspector confirming a sale of tobacco products occurred • identification of the occupier or proprietor.
14 Table 3 (cont.)
Offence Offence description Evidence required
15L(2) Sale of tobacco from • photos of the retail outlet within a sports, music or art related function, premises a point of sale that or area is in a retail outlet • statement from inspector confirming a sale of tobacco products occurred for the duration of a • identification of the occupier or proprietor. sports, music or arts related function in the premises or area
15S(1) Selling a product that • photos showing the banned product has been banned • confirm product is listed in the Gazette. See section 8. under a Ministerial • statement from the inspector outlining the inspector’s observation that a banned ban order product is being sold at the retail outlet. • request who sold them the product and when the sale took place • identification of the proprietor and wholesaler, obtained through an interview.
15ZB Failure to display a • photos of the retail outlet showing certificate is not visible specialist tobacconist • statement from inspector confirming certificate is not visible inside the retail outlet certificate in a • identification of the person carrying on the tobacco retailing business, possibly retail outlet through interview.
15 7.0 Tobacco products banned under Victorian Government Gazette
Under section 15N of the Act the Minister has power to ban:
• certain fruit and confectionery flavoured products • tobacco products packaged in a way that is appealing to young children • non tobacco products resembling tobacco products • products which are of a nature or are advertised in a way that encourages children to smoke.
If an inspector notices a banned product the inspector should:
• confirm the product is listed in the Gazette
• advise the product is banned and show them the Gazette
• photograph the product
• advise the retailer that the product should be removed from sale
• ask who sold them the product and when the product took place
• advise tobacco control staff and provide details as above
• if products are still being officered for sale after you have advised them of the ban, take appropriate enforcement action.
16 7.1 List of tobacco products banned under Victorian Government Gazette
17 8.0 Tobacco Act educational visit checklist
Is this visit being conducted as a result of a complaint? (Please tick) Yes No Visit conducted by:
Date: / / Time: (Please tick) am pm
Name of premises:
Address of premises:
Contact name:
Contact number:
Actions = FU Follow up required V Verbal warning with education W Warning letter I Infringement P Prosecution The following is the checklist for general retailers. If you are visiting a Certified Specialist Tobacconist, refer to the checklist for Certified Specialist Tobacconists. Complies Check (for general retailers) Action Y/N or N/A Are tobacco products and packaging (cigarettes, cigars, loose tobacco and cigars inside humidors) covered and not visible to the public from anywhere inside or outside the retail premises? Is the health warning sign displayed? Is the ‘We don’t sell tobacco to u/18s sign’ displayed? If a price board is displayed, is there a graphic health warning sign displayed on or immediately next to the price board? Are staff being trained regarding cigarette sales to minors? Is there any tobacco advertising within the store (inc. non-branded tobacco advertising such as a backlit sign of lighters and/or matches)? Are there any ‘discounted’ or ‘cheap’ cigarette signs? Inform on (for general retailers) Done Types of identification that should be sighted when someone purchasing cigarettes who may be under the age of 25. Not selling single cigarettes or in a packet less than 20.
When conducting a visit at a Certified Specialist Tobacconist, please complete both checklists below. The first checklist shows offences where infringements can be issued while the second is a checklist used by the Department of Health to determine whether the retailer is eligible for certification and cannot be used as a basis for enforcement action. Check (for Certified Specialist Tobacconists). Complies Action Please report any breach to the Department of Health at [email protected] or 9096 0469 Y/N or N/A Is the certificate displayed in a conspicuous position? Is there only one tobacco display area? Is the display of tobacco product facings less than 4 square metres (excluding cigars in an operating humidor)? Is there only one front facing of each product line on display? Is the ‘We don’t sell tobacco to u/18s sign’ displayed? Is the health warning sign displayed? Are staff being trained regarding cigarette sales to minors? Is there any tobacco advertising within the store (inc. non-branded tobacco advertising such as a backlit sign of lighters and/or matches)? Are there any ‘discounted’ or ‘cheap’ cigarette signs? Are any cigarette cartons displayed?
18 Inform on (Certified Specialist Tobacconists) Done Types of identification that should be sighted when someone purchasing cigarettes who may be under the age of 25. Not selling single cigarettes or in a packet less than 20. Action Certified Specialist Tobacconist criteria checklist.See also attached explanatory notes. Please report No Y/N enforcement any non-conforming criteria to the Department of Health at [email protected] or 9096 0469 action can be initiated If N — Advise Does the retail outlet operate from premises separated from all other retail premises by walls? department
Do the signs at the front of the retail outlet clearly show that it is a tobacconist by using branding If N — Advise containing any or all of the words: tobacconist, tobacco, cigars, cigarettes? department If Y — Advise Does the retail outlet operate from premises opening directly or exiting from any other retail premises? department If Y — Advise Does the retail outlet identify itself as a newsagent? department If Y — Advise Does the retail outlet contain any internal or external branding identifying it as a newsagent? department
Does the retail outlet sell print materials other than local, state and national, daily and If Y — Advise weekly newspapers? department
Does the retail outlet sell any food or beverages other than low risk and shelf-stable foods If Y — Advise and beverages? department If Y — Advise Does the retail outlet sell any milk or dairy products, including UHT or other shelf stable products? department If Y — Advise Does the retail outlet sell any bread or other bakery products? department If Y — Advise Does the retail outlet sell eggs or breakfast cereals? department If Y — Advise Does the retail outlet sell products or services for children or adolescents? department
Enclosed workplace Eating establishment: Licensed premises Gaming Shopping centre Other:
Complies Check Action Y/N or N/A Are no smoking signs posted as required (licensed premises, shopping centre, bingo centre, casino, café/restaurants)? Any signs that smoking may be occurring in the workplace (eg butts, smell)? Is the vending machine located in a correct position (in the line of sight of the bar area not more than 5 meters from the outer edge of the bar area in a licensed premises, or in the line of sight of counter at a gaming venue or casino, or next to the counter at a bottle shop)? Are tobacco products and packaging covered and not visible inside or outside of the vending machine? (price tickets permitted) Is the smoking status of any outdoor dining and drinking area correct (see further on)? Inform on Done The need for the entire enclosed workplace to be smoke-free at all times. Smoking status of a workplace never changes even if doors and windows are opened. Smoking status of an outdoor area can change if awning (or similar) are drawn. Occupier must not provide ash trays, matches, lighters or any other things designed to facilitate smoking. If occupier witnesses smoking in their workplace they should request that the person extinguish the cigarette. Where possible, designate an outside area as the area where smoking is permitted. A cigarette butt bin should be provided in designated outdoor smoking areas Educating new staff regarding the smoke-free enclosed workplace.
Notes:
19 Notes (cont.):
Step Description Calculation No.
1. Does area have roof? Does the roof impede airflow? If so, the area should be regarded as having a roof. As a guide, if half of the area is covered then the area may be considered to have a roof.
2. Total notional wall area Wall 1. Calculate the total wall surface area that is required to Wall 2. enclose all walls up to the lowest point of the roof along the Wall 3 perimeter of the roofline - this will give you your ‘total otional Wall 4. wall area’. Total
3. Total actual wall area Wall 1. Work out the actual wall area that exists. If a wall prevents Wall 2. or significantly impedes lateral airflow in an area, despite Wall 3 any openings or gaps in the wall, those openings should be Wall 4. disregarded in assessing the total actual area of the wall surface. Total 4. Compare your actual wall area as a percentage of your Actual Wall Area m2 total notional wall area. If the amount is 75% or less, smoking is permitted. If the /Notional Wall Area m2 amount is more than 75%, smoking is not permitted. x 100
Equals %
Diagrams
20 Assistance with completing the checklist
Please note that any Certified Specialist Tobacconist found breaching the Tobacco Act 1987 or not satisfying any criteria stated and developed under 15U(2) must be reported to the Department of Health for monitoring purposes. Please email [email protected] or on phone 9096 0469.
Please be aware that not satisfying the criteria required of a specialist tobacconist is not an offence under the Tobacco Act 1987. Rather not satisfying the criteria stated and developed under section 15U(2) is grounds for the cancellation of certification.
What is branding (Question 5)? Trade name, brand name, brand or name given to product or service.
What are low risk foods/ beverages (Question 7)? Food/ beverage that is unlikely to contain pathogenic micro-organisms and will not normally support their growth due to food characteristics. Some examples of foods which are not low risk include: meats, fish, prepared foods such as sandwiches and salads.
What are shelf stable foods (Question 7)? Food/ beverage of a type that has been processed so that it can be safely stored in a sealed container at room or ambient temperature for a usefully long shelf life. Some examples of foods which are not shelf stable include: ice cream and ice confectionery, heated foods such as pies and hot dogs. Generally, most snack foods and confectionery will be both low risk and shelf stable. Remember: food and beverage must be both low risk and shelf stable. Eggs, UHT milks, baked products and bread, or breakfast cereals may be considered low risk and/ or shelf stable, but Certified Specialist Tobacconists will not be able to sell or display these either.
What are products for children or adolescents (Question 11)? This is potentially a very broad area and we are aware that there will be a number of questions surrounding this area. Some examples of products/ services for children and adolescents include: • children’s DVDs/CDs • toys • licensed Merchandise and products with cartoon pictures on the packaging which appeal to children eg. Disney and Pixar licensed products • food products that appeal to young children and adolescents including Freddo Frogs, Kinder Surprise chocolates and lolly pops • services appealing to children include: lolly/ toy vending machines, children’s haircuts and arcade games
If you believe a product or service is for children or adolescents, write a list, photograph the product and provide it to the Tobacco team. We will provide further advice to councils as we work through these lists and get a firmer idea of what is out there.
What are considered print materials (Question 6)? Print materials include (but are not limited to) magazines, books, comics, notebooks and other stationery, wrapping paper, cards and post cards. If you find what you believe is a print material which is not listed here, write a list, take photos and provide these to the Tobacco team. We will provide further advice to councils as we work through these lists and can get a more firm idea of what is out there.
Note: If the proprietor asks you whether or not they will receive certification, it is important to emphasise that you cannot comment about this as the Department of Health makes the decisions about which businesses will receive certification. If they push you, explain that you are only making a visit on behalf of the department and any queries should be referred to us at: [email protected] or on 9096 0469.
21 9.0 Tobacco retailer interview
(This interview proforma is not appropriate for interviewing in relation to cigarette sales to minors offences) This proforma has been designed to give inspectors the flexibility to ask questions they think are appropriate to the offence. Prior to conducting an interview it is advised that reference be made to the information relating to suggested evidence requirements in the Tobacco Retailer section of the protocol.
1. Date of interview: / / Time: (Please tick) am pm
2. Name of premises:
3. Address of premises:
4. Name of interviewee:
5. Address of interviewee:
6. Date of birth: / /
7. Contact telephone number:
Caution
I am an inspector under the Tobacco Act, and I believe that (outline alleged offence committed by interviewee )
has occurred in contravention of the Act. I’d like to ask you some questions, but you do not have to say anything other than your name and address, and anything you do say may be recorded and later used as evidence against you.
Do you understand what I have just told you? Yes No 8. Do you need an interpreter to help you with answering my questions? Yes No 9. What is your position here? (e.g. are you the owner, manager, employee)
10. Are you responsible for (the area where the offence occurred e.g. point of sale display) Yes No
11. Do you agree that at (time) / / on (date) Yes No
(insert offence description)
12. Do you have anything to say about this?
22 Additional questions
Signature
The contents of this record of interview have been explained to me/I have read the record of this interview and agree that this is a true and accurate account of what was said.
/ /
Interviewee’s name Signature Date
/ /
Enforcement Officer’s name Signature Date
/ /
Witness’ name Signature Date
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