Selling Tobacco Products - Information for Businesses
Wholesale and retail businesses that sell smoking products in the ACT must comply with the Tobacco and Other Smoking Products Act 1927. The Act includes requirements for smoking product licensing, sales, product displays, advertising and promotion. A smoking product is a tobacco product, a herbal product, a personal vaporiser or a personal vaporiser related product. A personal vaporiser is commonly referred to as an electronic cigarette (e-cigarette), and also includes e-cigars, vape pens, hookah pens and e-hookahs.
Smoking Product licensing
To sell smoking products in the ACT, businesses must be licensed. A licence is required to sell personal vaporisers in the ACT.
An application for a tobacco licence can be obtained from Access Canberra shop fronts or online. The licence issued by Access Canberra will be either a wholesale merchant’s licence or retail tobacconist’s licence, depending on whether the business carries out wholesaling or retailing at a particular premises.
It is an offence under the Tobacco and Other Smoking Products Act 1927 to sell smoking products in the ACT without a licence.
Guide to the sale of smoking products in the ACT
Licensees must comply with the Tobacco and Other Smoking Products Act 1927 when selling tobacco or smoking products in the ACT.
For policy enquiries: Health Protection Service Locked Bag 5005 Weston Creek ACT 2611 6205 1700
For licensing, compliance enquiries:
GPO Box 158
Canberra City ACT 2601 132281
Guide to the Sale of Smoking Products in the ACT
In order to sell smoking products in the ACT, a person must be licensed. The licence period is from 1 September to 31 August. A licence may be applied for from Access Canberra at any time during this period. The licence issued by Access Canberra will either be a wholesale merchant’s licence or a retail tobacconist’s licence depending on whether the business carries out tobacco wholesaling or retailing at a particular premise. From 1 August 2016 businesses that sell personal vaporisers (including e-cigarettes) will also be required to hold a tobacco license.
Tobacco licensees have an obligation to comply with the Tobacco and Other Smoking Products Act 1927 (the Act) in selling smoking products in the ACT. This guide has been prepared to assist tobacco licensees with understanding their obligations.
At a point of sale, smoking products must be stored out of customers’ view. That is, smoking products should not be displayed. No representations or advertising of smoking products, eg. pictures of smoking products in place of the packets at a point of sale, may be used. In placing smoking products out of sight, tobacco licensees may choose the approach that suits their operational needs.
Tobacco licence display requirement
Tobacco licensees are required, under the Act, to display their licence details notice section which is shown on the reverse side of the licence certificate. The licence details notice must be displayed in a prominent place at the business premises of a wholesale tobacco merchant or in the case of a retail tobacconist, at or in close proximity to the point of sale of tobacco products. Failure to display the licence details notice section of the certificate is an offence.
What is a ‘smoking product’?
The Act defines a smoking product as a tobacco product, a herbal product, a personal vaporiser or a personal vaporiser related product.
A tobacco product is tobacco or something containing tobacco prepared for human consumption, including a cigarette or cigar.
A herbal product is a product prepared for smoking but which does not contain tobacco, for example cigarettes or cigars containing herbs or other plant matter.
A personal vaporiser is a device that is made for the purpose or apparent purpose of delivering a substance into a person’s body when the person inhales. Personal vaporisers include e-cigarettes, e-cigars, vape pens, hookah pens and e-hookas. Personal vaporisers do not include any devices listed in the Therapeutic Goods Act Australian Register of Therapeutic Goods, which covers therapeutic and medical goods and devices.
A personal vaporiser related product includes any device that is not capable of being used to deliver a substance but is intended to be used as a part of a personal vaporiser, for example heating elements, batteries, cartridges or mouthpieces for personal vaporisers.
Smoking products do not encompass pipes, matches, lighters or cigarette papers.
What is a point of sale?
A point of sale is the place where smoking products are sold within a retail outlet or wholesale outlet. The Act provides for one (1) point of sale for a retail outlet and up to five (5) points of sale for liquor-licensed premises.
Under the Act, a liquor-licensed premises means a premises for which an on licence, a general licence or a club licence is in force under the Liquor Act 2010. All other types of liquor licence holders are required to have one point of sale. Licensees will need to advise the Commissioner for Fair Trading where the point of sale is in the business premises.
The place must be bounded by a counter that a customer can approach to purchase smoking products and payment is made to cash register(s) located at that counter. For retail outlets, this does not include registers that may be located adjacent to a point of sale, such as at express check- outs. Selling smoking products from cash registers on adjacent counters would constitute more than one point of sale.
Smoking products at the point of sale
The Act requires that smoking products be kept out of public view, on the seller’s side not less than 1 metre from any part of the customer service area of the point of sale. The customer service area is on the customer side of a counter, with the 1 metre measured from the customer side of the counter.
It is recognised that some businesses have found it more convenient to place smoking products under the counter. Such arrangements are acceptable but should be carefully managed to ensure that smoking products cannot be seen by customers inside or outside the premises.
Various types of product storage units and arrangements may assist with keeping smoking products out of public view. Some examples are described below.
Example: stack dispensers
Packages at the front, top and sides of a stack dispenser covered with material that blocks the visibility of the packages. To assist retrieval of the packet, a liftable shield is placed above the first package. The covering material used must not contain a representation of a smoking product (eg. brand name, etc.).
Example: drawers and shelves
Drawers within the point of sale may assist the retrieval of smoking products. If a drawer has a clear glass front allowing packets to be seen, this should be covered. If products are stocked on shelves, an appropriate cover should be used to shield the shelf.
Doors could be used to cover smoking products. There should also be coverage of the smoking products behind these doors to minimise visibility to customers when the doors are opened.
Self-closing doors will assist in ensuring that doors are not left inadvertently open.
The stocking of smoking products at the point of sale needs to be managed to ensure smoking products are kept from customers’ view. Stock should be placed immediately in the dispensing unit when brought out from storage. It is expected that some visibility of smoking products will occur during restocking – you should not prolong the exposure of the products during this process.
Roller doors and other security cabinets can be used for the security of smoking products. It is suggested these not be used to cover up smoking products during business hours as they may be left open. If they are left open, this may result in non-compliance with the Act if the products inside are not obscured from public view.
Retrieval of smoking products during purchase
Retrieving smoking products makes it inevitable that smoking products become visible during a purchase transaction. In retrieving smoking products, licensees and their staff should ensure that smoking products are only briefly visible. This can be achieved if only the product requested is retrieved and no other product is made visible for that transaction. If various smoking products are requested, it should be ensured that covers are put back in place before moving on to the next product to be retrieved.
Products may also be visible during the course of a sale where a purchaser wishes to view a selection of cigars or e-cigarettes. While presenting a selection of products in a display, it is reasonable for a customer to ask to see the goods in order to make a purchase. During the selection process, the seller should limit any cigars or e-cigarettes on view to the types or price range that the customer has indicated that they prefer. Once the purchaser’s selection is made, the products should be returned to their storage place immediately.
What information can be displayed at the point of sale?
As noted above, an A5 sign may be placed at the point of sale that indicates smoking products are sold to persons 18 years or older.
Price tickets may be displayed for product lines which are available, or usually available, for sale. These must not exceed 15cm2 in size and must contain only text printed in 12 point, Times New Roman type (a bar code or similar identifying code may be included).
A price ticket must be located at least 1 metre from any part of the customer service area. Price tickets may be displayed below or next to the blocked-out smoking products. Price tickets may also be arranged sequentially if it is not possible to place the price ticket below or adjacent to smoking products.
A document indicating the price of smoking products cannot be given to a customer to read. If needed, a barcode sheet may be provided to staff to assist the scanning of prices. To ensure it is not a price ticket within the meaning of the Act, only the barcode and product names should be on this sheet. The sheet should be kept under the counter.
You may scan the product to confirm the price for a customer. You may also tell customers what products are available, their price and answer any questions they may have. Care should be taken to ensure that nothing is said that would constitute the promotion of particular products or of smoking generally.
Advertising and promotion
Advertising or promoting a smoking product is restricted in the ACT. A smoking advertisement is any writing, sound, picture, symbol, light or other visible device, object or sign that a reasonable person would consider publicises or otherwise promotes the purchase or use of a smoking product or a trademark or brand name, or part of a trademark or brand name, of a smoking product. This includes:
- signs, poster, items and devices which advertise or promote smoking or smoking products;
- tobacco product or e-cigarette posters and packaging;
- customer reward schemes for the purchase of smoking products, for example shopper dockets;
- competitions that promote smoking or promote a smoking product;
- films, videotapes, DVDs or other recordings that contain a smoking advertisement; and
- anything which advertises a smoking product or the interests of a manufacturer or distributor of a smoking product in connection with a sponsorship, gift, prize, scholarship or similar benefit.
Care should be taken with signs outside retail or wholesale outlets about smoking products being available to ensure that they do not contain a smoking advertisement. The purchase or use of a smoking product cannot be promoted but a factual statement can be made. For example, milk, cigarettes, newspapers, available here; or, stockists of cigarettes, e-cigarettes, cigars, liquor, etc. The words should be of equal size, that is, no one word should be larger text than the others. A licensed tobacconist (a person whose main business is selling tobacco) may state that they are a tobacconist.
Australian Government legislation prohibits, with some exceptions, anything that promotes smoking, including through print and broadcast media. Information about the Tobacco Advertising Prohibition Act 1992 can be found at www.health.gov.au.
Sale and Supply to Minors
You must not sell a smoking product to someone who is younger than 18 years of age. It is also an offence for a person to purchase a smoking product for the purpose of supplying it to a person under the age of 18. You may refuse a sale if you believe that the product is being purchased for use by a person under the age of 18. Only smoking products are prohibited for sale to minors. Smoking products do not include pipes, matches, lighters, or cigarette papers.
Sellers are responsible for asking to see proof of age to ensure that no one under the age of 18 purchases a smoking product. It is a defence to selling a smoking product to an underage person that you have asked for and have seen an acceptable form of proof of age which indicates that the person is 18 or older. Acceptable identification means: a passport, driver’s licence, proof of age card issued for alcohol purchases, or another document with the person’s photograph and birth date, but not a student ID. A person who offers a fake or tampered document as a proof of age also commits an offence.
Access Canberra is authorised to conduct controlled purchase operations under the Act. Volunteer young people may be used to test retailer compliance with the sales to minors provision at any time.
A vending machine is a machine or device from which smoking products can be obtained, including by an electronic funds transfer, insertion of money, a token or another object. Vending machines may not be placed on premises where they can be used for the sale of smoking products to members of the public. It should also be noted that the Commissioner for Fair Trading is not permitted to issue a licence for the sale of smoking products from vending machines, even where the machines are not placed for use by members of the public.
Prohibitions under the Act
The Act also provides that it is prohibited to:
- manufacture or sell tobacco products that are not prepared for smoking;
- sell or to import into the ACT foods or toys which resemble or promote, or whose packaging resembles or promotes, a smoking product or the use of a smoking product;
- sell, distribute or give away an item or entitlement in association with a smoking product;
- sell cigarettes in quantities of less than 20, or sell a package designed to hold less than 20 cigarettes or be able to be divided into portions which contain less than 20 cigarettes;
- sell a smoking product which the Assistant Minister for Health has declared to be a prohibited smoking product because it has a distinctive fruity, sweet or confectionary-like character and may be attractive to children.
Under Australian Government legislation, graphic health warnings are required on most tobacco products imported or manufactured for retail in Australia. A system of warnings, explanatory messages and graphic images is in place to increase consumer knowledge of health effects relating to smoking, to encourage the cessation of smoking and to discourage uptake or relapse. For more information on features of health warnings please refer to the Product Safety Australia website at www.productsafety.gov.au.
Tobacco plain packaging
The Australian Government’s Tobacco Plain Packaging Act 2011, received Royal Assent on 1 December 2011 and requires all tobacco products sold in Australia to be sold in plain packaging by 1 December 2012. The law includes requirements for the physical features, colour and finish of retail packaging of tobacco products, details of prohibited marks on retail packaging and requirements for wrappers. The supply, purchase or manufacture of tobacco products that do not comply with the plain packaging laws are prohibited.
These laws do not exclude or limit the operation of the ACT’s Tobacco and Other Smoking Products Act 1927. When these laws come into effect, tobacco licensees will still be required to comply with all the requirements of the Act including those restricting the display of smoking products in the ACT.
For more information on tobacco plain packaging please refer to the Department of Health and Ageing’s website at www.health.gov.au.
Electronic cigarettes (e-cigarettes) have not been approved by the Therapeutic Goods Administration (TGA) for therapeutic use and little can be said, at this stage, of their safety and suitability as an aid to quitting smoking. If you require more information on e-cigarettes, please contact the TGA directly or refer to the organisation’s website at www.tga.gov.au.
What if I don’t comply with the law?
The Act provides criminal and licensing penalties for non-compliance. Access Canberra is authorised to issue infringement notices for some offences against the Act. An infringement notice can be issued if it is believed an offence has been committed. Information is provided in the infringement notice on your options with respect to the notice. You may also be referred to the ACT Civil and Administrative Tribunal for occupational discipline. Please refer to the Act for information on penalties.
For further information on licensing and compliance, please visit the Access Canberra website.
For policy enquiries on smoking product regulation, please contact the Health Protection Service via email at firstname.lastname@example.org or call (02) 6205 1700.