Much of the Tobacco and Primary Medical Services (Scotland) Act 2010 came into force on 1 April and 1 October 2011.
"A decision of the Supreme Court dismissed a challenge to those sections of the Act dealing with display of tobacco products and prohibition of tobacco vending machines. This means that the "display" provisions come into force on 29 April 2013 in respect of large shops and 6 April 2015 for other premises, while the "vending machine" provisions will now come into force on 29 April 2013. From that date it will be an offence for a person who has management or control of premises to have an automatic vending machine for the sale of tobacco products available for use. "
Among the provisions which are in force are those dealing with the introduction of the Scottish Tobacco Retailers Register (the Register). All retailers wishing to sell tobacco products must now register. It is an offence not to do so.
It is also an offence to sell tobacco products to someone under the age of 18; to purchase tobacco products if you are under 18, or to purchase tobacco products on behalf of a person under 18 in so-called 'agency purchases'.
Where tobacco products have been sold to a customer under 18 a defence is available if:
- the accused believed the person under the age of 18 was over 18; and
- the accused had taken reasonable steps to establish the customer's age.
The Act says that "reasonable steps" in this context are: sight of a passport, EU photo card driving licence or other such document; and that document would have convinced a reasonable person as to the customer's age.
Enforcement is carried out mostly by local authorities' trading standards departments. They are obliged to carry out a programme of enforcement at least once every 12 months. As part of the programme of enforcement officers have the power to:
- authorise under-18s to buy, or attempt to buy, tobacco products;
- confiscate tobacco products from those under 18;
- enter, inspect and examine any premises and seize any books or documents;
- issue fixed penalty notices.
Local authorities have now carried out their first enforcement programme, providing an insight into the practical interpretation of the Act and the lessons to be learned by retailers.
Fixed Penalty Notices
An enforcement officer may issue a fixed penalty notice if he/she has reason to believe that an offence under the Act has been committed.
If the person who carried out the underage sale, for example, is also the person named on the Register, that person will be served with the fixed penalty notice. Where the person who committed the offence is the employee of the entity named on the Register, in our experience, a fixed penalty notice will be issued to both the employee and the employing entity.
The Act does not state that employers will be held vicariously liable for breaches of the Act carried out by their employees; however it is settled law that employers are liable for the acts of their employees.
Tobacco Retailing Banning Orders
If a premises is subject to more than three enforcement actions in a two year period the local authority may apply to court for an order banning sale of tobacco products from that premises for up to 24 months. It is important to note that this banning order relates to particular premises, not every branch of a particular retailer within the local authority area.
Appealing Enforcement Action
The recipient of a fixed penalty notice has 28 days from the date of the notice to make written representations to the local authority as to why the notice ought not to have been given. If these representations are accepted by the local authority the fixed penalty notice will be withdrawn.
A person or company against whom a tobacco related banning order is made may appeal to the Sheriff Court within 21 days of the order being made.
There is no clear statutory defence to the offence of underage sale for a corporate retailer (as opposed to the individual employee making the sale), who was not in attendance at the sale, but is nevertheless the person named on the Register. While the Act does not contain a clear defence for a company when one of its employees is accused of selling tobacco to under-18s, an appeal based on a 'due diligence' defence is likely to be appropriate.
An appeal detailing the training provided to the employee on age restricted sales, together with evidence that the prevention of inappropriate sale of age restricted products is taken seriously by the company, will allow the local authority or Sheriff to ascertain whether the company has done all that it reasonably could to prevent breach of the Act.
In order to successfully appeal enforcement action under the Act companies will require:
- compelling evidence of training of the employee on age restricted sales;
- use of a sales refusal book which should be regularly reviewed by a manager;
- evidence that the company is taking steps to ensure that employees are complying with legislation, and carrying out regular refresher training.
The sum due in terms of fixed a penalty notice under the Act is comparatively small, and for a first offence will be £200. However receipt of three notices over a two year period may result in a banning order being applied to premises, which could have a significant impact on the business. As such consideration should be given to lodging an appeal against enforcement, if a defence exists.
In order to avoid enforcement companies should ensure that their employees are fully trained on age restricted sales, refresher training is provided regularly, and regular checks are made to ensure that employees are complying with the law.