Published: Tue, Mar 1st, 2005
The recent amendments to the Smokefree Environments Act 1990 have generated much discussion over recent months. Although the impression sometimes conveyed is that a new law has come into effect, the amendments to the 1990 Act were actually passed at the end of 2003 and provided for progressive changes over a two-year period.
The most significant are as follows:
- Imposition of a ban on access to smoking products for those aged under 18 years of age effective from 10 December 2003.
- Buildings and grounds of schools and early childhood centres became smokefree with effect from 1 January 2004.
- Licensed premises (including bars, restaurants, cafes, sports clubs and casinos) became smokefree indoors from 10 December 2004.
- All other work places became smokefree indoors from 10 December 2004.
- Restrictions on the display of tobacco products in retail outlets apply from 10 December 2004.
Implications for Retailers
There are a number of restrictions on retailers who sell tobacco products. These include:
- A prohibition on the promotion of the sale of tobacco products with other products.
- A prohibition on promotional schemes for the sale of tobacco products.
- Restrictions as to the manner in which tobacco products can be displayed.
- Appropriate signage warning of the dangers of tobacco use which must be displayed where tobacco products are sold within 200 metres of the point of sale.
- Strict marketing directives aimed at enforcing the prohibition on the sale of tobacco or herbal products to persons under the age of 18 years.
All clubs or sporting organisations which are licensed for the sale of alcohol must comply with the new smokefree law. In particular, such organisations should be aware of the following:
- The fact that the premises are not open to the general public does not mean that compliance with the Act is not required.
- A club must take "reasonably practical steps" to ensure that it complies with the Act. Failure to do so could result in a fine.
Although the Act does not define what "reasonably practical steps" are, the Ministry of Health have issued guidelines which include the formulation of smokefree policies, displaying appropriate signage and prohibiting the sale of tobacco products on the club’s premises. Further information can be obtained from the Ministry of Health.
Partially Covered Spaces
Partially covered spaces are also an area of some concern and confusion to bar, restaurant and club managers and owners. By way of a specific example, if an area has a marquee roof over existing permanent walls there is some uncertaintyas to whether this area is appropriate for allowing smoking. The legal question that must be asked is whether it is an “open area”. The law does allow smoking in open areas. The legislation describes open areas as anything that is not an “internal area”. Therefore the real question to be asked is, “What is an internal area?” The legislation defines “internal area” as the following:
In relation to any premises or vehicle, means an area within or on the premises or vehicle that, when all the doors, windows and other closable openings are closed, is completely or substantially enclosed by:
- ceiling, roof or similar overhead surface;
- walls, sides, screens or other similar surfaces; and
- those openings.
Therefore in deciding the answer to this question will be dependent on how substantially closed the entire area is. Things to look at will include the permeability of the surrounding structures and the percentage open to the environment permanently. The Ministry of Health have indicated that they will be attempting to require anything more than 50% enclosed to be smoke-free. It would therefore be a cautious approach to ensure that any area with more than 50% coverage is deemed a non smoking area. We believe that ultimately this question will have to be decided through the courts. When this occurs it is most likely to have significant media coverage.
The underlying objective in making these changes is to protect the public from the harmful effects of smoking and to further promote a smokefree lifestyle as the norm. The changes to the law have not been welcomed by everybody, particularly some casinos, hotels and bars where employers and customers have voiced resentment at what they perceive as undue Government interference.
There are significant penalties whereby failure to comply can result in fines of up to $4,000 in respect of each offence for companies and up to $400 for each offence for individuals. As some licensees of licensed premises (particularly hotels) have stated their intention to flout the law by continuing to allow smoking on their premises, presumably it will not be long until we have an indication as to the penalties likely to be imposed by the Courts in practice.