Guidance

Tobacco control legislation for United Kingdom Overseas Territories

Published 12 February 2019

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1. Introduction

The World Health Organization (WHO) report on the global tobacco epidemic 2017 finds that tobacco use causes 1 in 10 deaths around the world and says that “it is critical that all countries act urgently to more effectively protect their people with evidence-based tobacco control policies”.

WHO’s Framework Convention on Tobacco Control (FCTC) is the first global public health treaty, adopted in 2003. The United Kingdom (UK) is highly compliant with the FCTC, but the UK Overseas Territories (UKOTs) have mixed compliance.

Public Health England (PHE) is providing help through a 4-year project to improve UKOTs’ compliance. The support programme concentrates on 3 priority sections of the in FCTC, Articles 8, 11 and 13, which relate to:

  • smokefree public places
  • regulations on packaging and labelling of tobacco products
  • a ban on tobacco advertising, promotion and sponsorship

This guidance sets out the important policy and legal provisions that UKOTs will need to consider for each of the FCTC Articles 8, 11 and 13. It explains the significance of each provision and provides examples of suitable wording to include in legislation by UKOTs seeking to adopt or improve their tobacco control legislation in line with the FCTC’s requirements.

2. Article 8 of the Framework Convention on Tobacco Control

Article 8 of the FCTC is about adopting and implementing effective measures to provide protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and other public places.

The WHO has produced detailed implementation guidelines for Article 8 that you should read with this chapter.

Comprehensive smokefree compliance is best achieved through adopting, implementing and enforcing effective legislation. Business owners and operators, as well as the public, should easily understand the legislation. There should be few exemptions and simple enforcement procedures.

2.1 Terms and definitions in Article 8

This section provides guidance on the use of important terms and definitions in Article 8.

2.1.1 ‘Smoking’ or ‘to smoke’

In some legislation, the definition of ‘smoking’ or ‘to smoke’ only applies to smoking tobacco and refers to the action of inhaling smoke. Problems can arise where the requirements are not applicable to non-tobacco products.

Example

The legislation in Gibraltar uses a comprehensive definition (like England), which states:

“‘smoking’ refers to smoking tobacco or anything which contains tobacco, or smoking any other substance, and includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked.”[footnote 1]

2.1.2 ‘Closed’ or ‘enclosed’ premises

The definitions of public place and workplace will usually include the term ‘closed’, ‘enclosed’ or ‘semi-enclosed’ space (or alternative expressions). Whatever terms are used, it is important that they are accurately defined and can be clearly understood.

Example

In Guernsey, the legislation uses the amount (for example, 50%) of the premises that could be classed as enclosed as a guide. It says:

“‘enclosed’ means premises-

a) which are covered, either wholly or substantially, by a fixed or moveable roof, ceiling or similar structure, whether permanent or temporary, and

b) which have one or more walls or similar structures, whether permanent or temporary, (inclusive of windows and doors, gates and other means of access or egress) for more than 50% of their perimeter.”[footnote 2]

2.1.3 Workplace

It’s common for countries to include a list of premises which are workplaces as examples. This runs the risk that the legislation excludes premises and activities which are not specifically included. Smokefree requirements should apply at all times.

Example

The legislation in St Helena uses a comprehensive definition of workplace, which says:

“all premises which are used as a place of work (including voluntary work) shall at all times be smokefree if:

a) such premises are used by more than one person (even if the persons who work there do so at different times, or only intermittently); or

b) members of the public might attend for the purpose of seeking or receiving goods or services from any person working there.”[footnote 3]

2.1.4 Public place

Similarly to the term ‘workplace’, it’s common for countries to treat public places as categories of premises and legislation can exclude premises and activities which are not specifically included. There is often an overlap between the terms ‘workplace’ and ‘public place’.

Example

English legislation uses a highly inclusive definition of public place. It says that premises are smokefree if they are “open to the public” if the public (or a section of the public) has access to them, whether by invitation or not, and whether on payment or not.[footnote 4]

2.1.5 Vehicles

With the exception of private cars, legislation can define all other forms of transport as either work vehicles or public vehicles, or both. Legislation should require work vehicles, like other workplaces, to be smokefree even when they are not used for work purposes.

Example

Legislation in the British Virgin Islands uses a simplified definition that says:

“any means of transportation used for commercial, public or professional purposes and used by more than one person.”[footnote 5]

2.2 Requirements and enforcement measures in Article 8

This section provides guidance on the requirements and enforcement measures in Article 8 that you need to consider when incorporating them into legislation.

2.2.1 No smoking signs

No smoking signs need to clearly convey the message that the law prohibits smoking and can result in a penalty and it’s not simply advice or a request. It is also preferable to have an official standard sign so that the message is consistent.

Example

The British Virgin Islands use a set of signage requirements that are easy to understand:

“1. A ‘No Smoking’ sign shall be conspicuously displayed

a) at the entrance to and in a conspicuous place within each public place, by the occupier of the public place;

b) by the occupier of a private dwelling, at any part of the private dwelling

i. open to the public,

ii. used as a work place, or

iii. which is a common entrance or foyer to other apartment blocks;

c) by an employer in a work vehicle or vessel used by more than 1 person;

d) by each public transport owner, in that transport owner’s public transport vehicle.

2. A ‘No Smoking’ sign shall

a) be flat and rectangular in shape;

b) have a minimum measuring size of 8.5 inches by 11 inches;

c) display the symbol for ‘No Smoking’, set out in Schedule 3; and

d) carry the message ‘It is unlawful to smoke in this location’, in English.”[footnote 6]

2.2.2 People in control

It should be an offence for people who control or manage smokefree premises or vehicles to permit others to smoke in them. By ‘permit’ we mean to fail to stop smoking that is taking place and to fail to prevent smoking from occurring.

Example

In Gibraltar, the legislation uses an inclusive requirement:

“It is the duty of any person who controls or is concerned in the management of premises, a place or a vehicle where smoking is prohibited to cause any person smoking there to stop smoking where that person is smoking in contravention of a prohibition imposed by or under this Act.”[footnote 7]

2.2.3 Penalties

You should impose penalties for contraventions by both smokers and people who permit, or fail to prevent, smoking in a smokefree place or a no smoking area.

Example

The legislation in the Turks and Caicos Islands accurately specifies the offences and penalties, including for higher penalties for second or subsequent offences.

“No smoking areas

A person shall not smoke or hold a lighted tobacco product in an enclosed public place, enclosed workplace, or public conveyance, including a place listed in Schedule 3.

Notwithstanding the prohibition under subsection (1)

a) The owner or manager of an outdoor bar or outdoor restaurant, including any such bar or restaurant at a hotel, may designate an outdoor smoking area in the premises;

b) The manager or person in charge of an airport may designate a smoking area at the airport; and

c) The owner or manager of a tobacco speciality store may designate a smoking area within the store,

As may be prescribed:

A manager, owner or lessee of a place specified in subsection (1) shall post signs prominently on the premises or public conveyance, stating that smoking is not permitted in that place or public conveyance.

A person who contravenes subsection (1) commits an offence and is liable on summary conviction

a) to a fine not exceeding $5,000 or a term of imprisonment not exceeding 2 years, or to both; and

b) for a second or subsequent offence, to a fine not exceeding $10,000 or a term of imprisonment not exceeding 3 years, or to both.

A manager, owner or lessee

a) who contravenes subsection (3) commits an offence and is liable on summary conviction

i. to a fine not exceeding $10,000 or a term of imprisonment not exceeding 3 years, or to both; and

ii. for a second or subsequent offence, to a fine not exceeding $20,000 or a term of imprisonment not exceeding 4 years, or to both; and

b) where the contravention occurs, who authorises or consents to the smoking, commits an offence and is liable on summary conviction

i. to a fine not exceeding $3,000 or a term of imprisonment not exceeding 18 months or to both; and

ii. for a second or subsequent offence, to a fine not exceeding $5,000 or a term of imprisonment not exceeding 2 years, or to both.”[footnote 8]

2.2.4 Ashtrays

The presence of ashtrays creates the impression that smoking is permitted in the premises. However, in designated or permitted smoking areas, ashtrays are useful as a demonstration of the use of the area and a way to control litter.

Example

The legislation in the British Virgin Islands uses a comprehensive requirement with permission for pre-existing fixed ashtrays:

“a) an ash tray or similar equipment is not placed at the work place;

b) an ash tray or similar equipment is not placed in a work vehicle or vessel used by more than one person, except where the ash tray was originally installed in that vehicle or vessel by the manufacturer.”[footnote 9]

2.2.5 Hotels

It is usual for hotels to allow a proportion of their rooms for use by occupants who choose to smoke. Legislation may provide similar exemptions for other forms of residential accommodation. The legislation should describe any such exemptions and arrangements to prevent, as far as possible, smoke escaping from the room and into other rooms and common areas.

Example

The legislation in the British Virgin Islands uses a comprehensive set of requirements to limit the proportion of smoking rooms:

“1. An operator or proprietor of a hotel, motel or guest house shall ensure that

a) smoking is prohibited in at least 75% of the rooms in the hotel; and

b) a ‘No Smoking’ sign is posted in every room designated as a non-smoking room.

2. An operator or proprietor of a hotel, motel or guest house who designates smoking rooms pursuant to sub-regulation (1)

a) shall ensure that the rooms so designated are not let out to non-smokers.

3. A designated smoking room shall be situated in a designated smoking zone.

4. A guest room designated in a smoking zone shall be constructed in a manner that physically separates it from an adjacent area where smoking is prohibited.”[footnote 10]

3. Article 11 of the Framework Convention on Tobacco Control

Article 11 concerns the adoption and implementation of effective measures to:

  • prohibit misleading tobacco packaging and labelling
  • ensure that tobacco product packages carry large health warnings
  • ensure these messages describe the harmful effects of tobacco use

The WHO has produced detailed implementation guidelines for Article 11 that you should be read with this chapter.

Article 11 provides the opportunity to label tobacco products with warnings of the harms caused by the product in a clear and unambiguous way. It also restricts the use of the packaging of the product as a form of advertising. The aim of the measure is to encourage existing smokers to quit by providing health information and contacts to stop smoking services and to discourage non-smokers from starting.

The Article states the warnings “may be in the form of or include pictures or pictograms”. International evidence confirms these types of health warnings as being the most effective.

Note on plain packaging

The guidelines to Article 11 recommends plain packaging as a policy that parties should adopt. Plain packaging includes highly effective health warnings and ensures that packaging is not misleading. The UK is one of the countries that has implemented standardised packaging legislation (sometimes referred to as plain packaging).

3.1 Terms and definitions in Article 11

This section provides guidance on the use of important terms and definitions from Article 11.

3.1.1 Tobacco products

This information is relevant to both Article 11 and Article 13.

Legislation needs to define products containing some tobacco as well as those that are 100% tobacco. This is particularly relevant for flavoured tobacco products such as those used in shisha pipes and closes a potential loophole for products that are deliberately not manufactured with 100% tobacco.

Examples

The British Virgin Islands use an inclusive definition of tobacco and tobacco products:

“‘tobacco’ includes tobacco leaves or any extract of tobacco leaves; ‘tobacco product’ means a product composed in whole or in part of tobacco, including cigarette papers, tubes and filters.”[footnote 11]

The legislation in Bermuda extends the definition to include the use of the product:

“tobacco products means, for the purposes of this Act, products entirely or partly made of the leaf tobacco as raw material which are manufactured to be used for smoking, sucking, chewing or snuffing.”[footnote 12]

3.1.2 Package

The packaging on a tobacco product needs a clear definition to ensure that the required labels and warnings are visible to anyone intending to purchase or use tobacco products. It should include a provision for products such as cigars that are sold without a package and be sufficiently broad to cover all forms of package. For example, a shisha pipe and its contents are a ‘package’.

Examples

The legislation in the British Virgin Islands uses a concise definition of package:

“‘package’ means a container, receptacle or wrapper in which a tobacco product is sold or displayed at retail, including a carton that contains smaller packages.”[footnote 13]

It also states that ‘container’ includes a room and ‘humidified container’ means a container which controls humidity to preserve the quality of cigars in the container. This is relevant for the health warning requirement where a cigar room door must display a combined health warning and age of sale restriction sign.[footnote 14]

Bermuda takes the definition further:

“‘package’ means any covering, wrapper, box, container, carton or other enclosure that contains a tobacco product and includes a box, carton, cylinder, packet, pouch or tin.”[footnote 15]

Regulations can expand on these definitions. There is a specific problem about cigar bands and whether the definition of ‘wrapper’ can be used to bring them into the requirement.

3.1.3 False or misleading

Some terms used to describe tobacco are false or misleading. Using these terms can have the effect of reducing the impact of health warnings and give the false impression that some tobacco products are less harmful than others. This is dealt with by regulation rather than a simple definition. Article 11 gives examples such as the use of ‘light’ or ‘mild’ in the product name.

Example

The legislation in Bermuda uses a comprehensive wording that mirrors Article 11:

“False information on package

(1) No person shall sell, offer for sale or possess for the purpose of sale, a cigarette product, tobacco product or smokeless tobacco product if the package contains —

(a) any information that is false, misleading, deceptive, or is likely or intended, directly or indirectly, to create an incorrect impression about the characteristics, health effects or health hazards of such products;

(b) any claim suggesting or implying that its use or exposure to its smoke is not hazardous or less hazardous than other cigarette products, tobacco products or smokeless tobacco products or brands.

(2) This section includes but is not limited to the use of

(a) words or descriptors, whether or not a part of the brand name, such as ‘ultra light’, ‘light’, ‘mild’, ‘low tar’, ‘slim’ or similar words or descriptors;

(b) any graphics associated with, or likely to be associated with, such words or descriptors;

(c) any package design characteristics associated with or like or intended to be associated with such descriptors.”[footnote 16]

“False promotion - No person shall advertise or promote a cigarette product, tobacco product or smokeless tobacco product in a manner that is false, misleading or deceptive or that is likely to create an incorrect impression about the characteristics, health effects or health hazards of a cigarette product, tobacco product or smokeless tobacco product.”[footnote 17]

3.1.4 Health warnings and messages

Clear, unambiguous health warnings can encourage smokers to quit and reduce the likelihood of young people taking up smoking. Regulations can define the form and content and Article 11.1(b) provides advice on the size, content and technical aspects of the provisions.

The UK health warning covers 65% of the package because of the European Union (EU) Tobacco Products Directive (TPD) requirement, but this is no longer seen as being best practice.

Some other countries, including Commonwealth countries, have health warnings larger than 65% of the principal surface areas. For example, Canada implemented a new set of 16 health warnings in 2012. The new warnings are larger and must cover 75% of the front and back of cigarette and little cigar packages.[footnote 18]

Example

The legislation in Guernsey includes picture warnings, based on the EU suite of images current at that time.

“Warnings on tobacco products other than oral use or smokeless products.

1. Subject to paragraph (5), and in accordance with paragraphs (2), (3) and (4), each packet of tobacco product must carry the following warnings

a) on its most visible surface, one of these 2 written warnings

i. ‘Smoking kills’, or

ii. ‘Smoking seriously harms you and others around you’,

and

b) on its other most visible surface, one of the 14 picture warnings in Part 1 of the Schedule, printed in accordance with the technical specifications in Part 2 of the Schedule.

2. Where a person sells, or offers or exposes for sale, any brand of a tobacco product, the text of each of the 2 written warnings set out in paragraph (1) (a) must be carried on an equal number, or as near to an equal number as possible, of all the packets of tobacco product of that brand sold, or offered or exposed for sale, by that person over any period of 12 months.

3. Where a person sells, or offers or exposes for sale, any brand of a tobacco product, each of the 14 picture warnings referred to in paragraph (1) (b) must be carried on an equal number, or as near to an equal number as possible, of all the packets of tobacco product of that brand sold, or offered or exposed for sale, by that person over any period of 12 months.

4. In the case of packets of tobacco product other than packets which immediately enclose the tobacco product, the period for calculating the number of picture warnings as required by paragraph (3) is 3 years, instead of 12 months.

5. Nothing in this regulation applies in relation to

a) tobacco for oral use, or

b) smokeless tobacco products.”[footnote 19]

3.2 Requirements and enforcement measures in Article 11

This section provides guidance on the requirements and enforcement measures in Article 11 that you need to consider when incorporating them into legislation.

3.2.1 Use of languages

It is usual to specify that English is the required language, but some countries allow the use of more than one language.

Examples

The Cayman Islands specify English as the required language. It simply says:

“the statement shall be in English.”[footnote 20]

Bermuda allows for dual language marking:

“No person shall sell, offer for sale or possess for the purpose of sale any cigarette product, tobacco product or smokeless tobacco product with labelling information that does not contain English.”[footnote 21]

3.2.2 Fines

Making a breach of the labelling regulations an offence can improve compliance, because the impact of breaching the requirements is clear and a possible penalty for breach reinforces the importance of the labelling.

Examples

The legislation in Bermuda imposes a $5,000 fine for breaching the requirements:

“Offences and penalties under Part 5

(1) Any person who contravenes section 13, 14, 15, 16 or 17 commits an offence and is liable on summary conviction to a fine of $5,000.

(2) Any person who contravenes section 18, 19 or 20 commits an offence and is liable on summary conviction to a fine of $5,000.”[footnote 22]

Bermuda also gives inspectors a full range of enforcement powers, including seizing the infringing product.

“Designation of inspectors

  1. The Minister may designate a public officer to be an inspector for the purposes of enforcement of this Act and shall furnish every such person with a certificate of his designation signed by the Minister and the person so designated.

Power to make test purchases

  1. An inspector may, for the purposes of enforcement of this Act or any regulations, make test purchases of cigarette products, tobacco products, smokeless tobacco products or related products, or otherwise ascertain whether any provisions of this Act or regulations made under this Act are being complied with.”[footnote 23]

The legislation in the British Virgin Islands has a requirement for a simplified health warning and imposes a $250 fine for breaching that requirement. It also imposes a fine of $75 for a pack that misleads a purchaser to the health harms. Both fines apply to businesses only. There is also a $125 business fine for obstructing a tobacco control officer and a $50 fine for private individuals.

“A person who contravenes a provision of the Act specified under column 1 of Schedule 4 is liable to the penalty stated

(a) in column 3 with respect to a business entity; or

(b) in column 4 with respect to an individual.”[footnote 24]

4. Article 13 of the Framework Convention on Tobacco Control

4.1 Banning tobacco advertising, promotion and sponsorship

Article 13 requires parties to undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship. To be effective, the ban should cover all types of tobacco advertising and promotion as well as any sponsorship from the tobacco industry. The comprehensive ban must include a cross-border advertising ban originating from the party’s territory (a party is a country that has ratified – or is party to – a treaty). Parties that are not in a position to provide for a comprehensive ban due to their constitutional principles must apply restrictions.

WHO has produced detailed implementation guidelines for Article 13 that you should read with this chapter.

Article 13 of the FCTC requires that parties “undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship.”

The implementation guidelines for Article 13 of the FCTC state that a comprehensive ban should cover:

  • all advertising and promotion, as well as sponsorship, without exemption
  • direct and indirect advertising, promotion and sponsorship
  • acts that aim at promotion and acts that have or are likely to have a promotional effect
  • promotion of tobacco products and the use of tobacco
  • commercial communications and commercial recommendations and actions
  • contribution of any kind to any event, activity or individual
  • advertising and promotion of tobacco brand names and all corporate promotion
  • traditional media (print, television and radio) and all media platforms, including internet, mobile telephones and other new technologies as well as films

The guidelines also recommend banning point of sale (POS) displays for tobacco products, including a ban on vending machines, and a ban on all internet sales of tobacco. The guidelines also recommend banning ‘brand stretching’ and ‘brand sharing’, as well as any contributions from tobacco companies to any other entity for “socially responsible causes”.

The UK has comprehensive laws on advertising, promotion and sponsorship. This includes a ban on POS advertising, a POS display ban, a ban on vending machines and prohibitions on brand stretching or brand sharing.

However, the UK laws that cover all elements of Article 13 are complex and spread over several different acts and regulations, providing a lot of detail on exceptions and defences. The UK laws also contain some exceptions that may not be necessary or appropriate for other countries. For instance, the laws permit POS advertising and displays in specialist tobacconists if they are not visible from outside the premises.

While some elements of the UK laws may be useful, overall they could be too convoluted to simply replicate for other territories. The laws of Turks and Caicos and Guernsey are more straightforward examples, and we outline them below in section 5.3.

4.2 Terms and definitions in Article 13

This section provides guidance on the use of important terms and definitions used in Article 13.

4.2.1 Tobacco product

See information provided in section 3.1.1 on Article 11.

4.2.2 Tobacco advertising and promotion

The FCTC defines tobacco advertising and promotion as “any form of commercial communication, recommendation, or action with the aim, effect, or likely effect of promoting a tobacco product or tobacco use directly or indirectly”.

If the legislation is not drafted in a broad and inclusive way, the tobacco industry will find ways to promote its products. The chosen definition should ideally incorporate (by way of schedule or otherwise) all the elements included in the annex to the Guidelines for implementation of Article 13.

Examples

The legislation in Turks and Caicos provides an example of comprehensive definitions:

Tobacco advertisement “means a commercial communication through any media or means that is intended to have, or is likely to have, the direct, indirect or incidental effect of

a) creating an awareness of a tobacco product, brand, manufacturer or seller

or

b) promoting the purchase of or use of a tobacco product or brand…”

Tobacco promotion “includes advertisement and a commercial act or practice that is intended to or is likely to encourage or recommend a tobacco product or the use of a tobacco product, directly or indirectly”.

Tobacco sponsorship “means a form of contribution to an event activity, organization or individual that has the aim, effect or likely effect of promoting a tobacco product or tobacco use, directly or indirectly”.[footnote 25]

The legislation in Guernsey uses a good inclusive definition that covers both purpose and effect, whether direct or indirect. As with the UK definition, it only covers tobacco products and not tobacco use, or tobacco manufacturers. However, it also specifically includes the use of a brand name, trade mark, emblem or other distinctive features associated with a tobacco product. The definition also includes the term ‘tobacco manufacturer or producer’. This may be a useful model for other territories to emulate.

“Meaning of ‘tobacco advertisement’.

  1. For the purposes of this Law a tobacco advertisement is a message or representation of which (a) the purpose, or one of the purposes, or (b) the effect, or one of the effects (whether direct or indirect) is to advertise, publicise or promote to people who see, hear, or otherwise receive it, tobacco products in general, tobacco products of any description, or any particular tobacco product.

  2. A tobacco advertisement may be contained within any form of communication whether using printed or written words, designs, still or moving pictures or images, or any other devices; and whether the medium of communication is tangible, by way of image projection or sound reproduction, computer communication, radio, television or similar broadcast, or otherwise.

  3. The use of a brand name, trade mark, emblem or other distinctive feature associated with a tobacco product, whether (a) in a design marked or exhibited on a vehicle, building or object, or (b) in printed or written material, or (c) in a film, broadcast, or other visible material, may be a message or representation within subsection (1) even without any express mention of that product.

  4. For the avoidance of doubt (a) tobacco products themselves, (b) invoices, letterheads, price lists and other documents ordinarily used in the course of business, the primary purpose of which is to identify the business and not to advertise, publicise or promote any tobacco product, (c) inscriptions marked or exhibited on business premises or vehicles, the primary purpose of which is to identify the business and not to advertise, publicise or promote any tobacco product, are not tobacco advertisements.”[footnote 26]

4.2.3 Prohibition on advertising, promotion and sponsorship

It is important to cover all forms of advertising, promotion and sponsorship of tobacco products in the prohibition.

Example

In the UK, the prohibition of tobacco advertising is comprehensive and sufficient to cover all means of advertising including POS.

Legislation in Turks and Caicos does not include the detail of the UK legislation, but the definition of advertisement is broad and so likely to cover all circumstances.

“Prohibition against tobacco advertising

  1. A person shall not initiate, produce, publish, engage or participate in a tobacco advertising, promotion or sponsorship.

  2. A person who contravenes this section commits an offence.”[footnote 27]

4.3 Requirements and enforcement measures in Article 13

Useful legislative examples of requirements and enforcement measures are highlighted below for each of the main recommendations in the FCTC implementation guidelines for Article 13.

4.3.1 Cross-border sales and advertising

Article 13 of the FCTC requires the parties to ban or restrict tobacco advertising, promotion and sponsorship. This includes a reference to controlling cross-border advertising:

“Parties which have a ban on certain forms of tobacco advertising, promotion and sponsorship have the sovereign right to ban those forms of cross-border tobacco advertising, promotion and sponsorship entering their territory and to impose equal penalties as those applicable to domestic advertising, promotion and sponsorship originating from their territory in accordance with their national law.”

This measure recognises that international media and advertising can cross national boundaries and could have the effect if left uncontrolled of bypassing national legislation.

Example

The Tobacco Advertising Directive (2003/33/EC) imposes an EU-wide ban on cross-border tobacco advertising and sponsorship in the media other than television. The ban covers print media, radio, internet and sponsorship of events involving several member states. The ban also covers advertising and sponsorship with the aim or direct or indirect effect of promoting a tobacco product.

4.3.2 Fines and penalties

Fines and penalties need to be set sufficiently high to act as a deterrent to further offending, particularly for persistent offenders.

Examples

The legislation in Turks and Caicos provides for both fines ($10,000 on summary conviction or $30,000 on indictment) and imprisonment (3 years on summary and 5 years on indictment).[footnote 28]

The UK legislation on penalties provides for both fines and imprisonment (6 months on summary conviction and 2 years on indictment).

In both the UK and Turks and Caicos, the legislation provides for prosecution of the “officer” of a company or the “director, manager, secretary or other officer” for offences committed by a corporate body.

5. Implementing other measures from FCTC articles

Articles 8, 11 and 13 of the FCTC are the only articles that are ‘timebound’, which means countries need to introduce them into legislation within a certain time after their ratification. However, the FCTC includes a range of measures and approaches to tobacco control and if implemented, these will further strengthen tobacco control within an Overseas Territory. This chapter gives an overview of some other measures that a territory might choose to consider.

Article 4 of the FCTC sets out ‘guiding principles’ which are reinforced in other articles, such as Article 5.2.a. These state that parties should:

“adopt and implement effective legislative, executive, administrative and/or other measures and cooperate, as appropriate, with other parties in developing appropriate policies for preventing and reducing tobacco consumption, nicotine addiction and exposure to tobacco smoke.”

Later articles give specific examples of measures, such as sales to minors in Article 16. The measures below reflect the guiding principles in Articles 4 and 5.

5.1 Brand stretching and brand sharing

Using tobacco product branding on non-tobacco products, such as clothing, bypasses tobacco advertising restrictions and keeps the brand or trademark in the public eye. This is known as brand stretching or brand sharing.

Examples

The UK’s regulations on brandsharing provides useful definitions, but it also provides detailed exceptions that may not be useful or relevant for other territories.

In the Cayman Islands, Part IV of the law of 2008 has extensive restrictions on brand sharing:

“Unless otherwise prescribed, no person shall sell, promote… A product or brand element other than a tobacco product that bears

a) the Brand name

b) the trade mark

c) the trade name

or

d) a distinguishing guise such as a logo, a graphic arrangement, a design a slogan.

Identical or similar to, or identifiable with those used for any brand of tobacco product.”[footnote 29]

5.2 Restricting methods of sale

Vending machines for cigarettes provide an easy way for children and young people to buy tobacco and cigarettes without providing any proof of age. Banning the sale of tobacco in this way helps to reduce accessibility of tobacco for young people. Some countries and territories also restrict sales over the internet for similar reasons.

Examples

The legislation in England prohibits sales of tobacco products from vending machines.

The legislation in Turks and Caicos includes a prohibition on self-service (a consumer handling the product without the assistance of a sales clerk) and automatic vending machines, mail or internet. This is a straightforward provision that deals with a number of issues and can serve as a useful model.

“Prohibition on self service

  1. A person shall not sell or offer for sale a tobacco product

a) In such a way that a consumer may handle the product without the assistance of a sales clerk or other employee or agent of the seller prior to purchase; or

b) Through any self-service means, including automatic vending machines, mail or internet.

2. The Minister may by Order published in the Gazette prohibit other means of sale where the age of the purchaser of a tobacco product cannot be verified at the point of sale.

3. A person who contravenes this section commits an offence.”[footnote 30]

The British Virgin Islands includes a prohibition on sales via vending machines, the mail, or the internet or where a person is able to handle the product before paying for it. Again, these are useful clauses that can serve as a model.

“6. No person shall sell or offer to sell tobacco products by means of a display that permits a person to handle the tobacco product before paying for it.

7. No person shall sell or offer to sell tobacco products through a vending machine, the mail or through the Internet.”[footnote 31]

5.3 Ban on point-of-sale displays

The tobacco industry frequently makes use of displays behind retail counters as a method for continuing to market their brands and products. This becomes even more useful for the tobacco industry in countries and territories which have banned other forms of advertising and sponsorship. Banning displays at the point of sale (POS) restricts opportunities for tobacco marketing.

Examples

The legislation in England bans POS displays. The prohibition is straightforward and also prevents the display of prices. The regulations describe “permitted displays”. The regulations are somewhat complex and may not be suitable for replicating in other territories.

English legislation also has specifications about the display of a list of tobacco prices under separate regulations that could be useful and are not covered in any other UKOT laws.

The legislation in the Cayman Islands provides a straightforward display ban:

“1. No retailer shall sell a tobacco product unless he does so at the request of the purchaser.

2. Notwithstanding subsection (1), a retailer may post a sign indicating

a) The availability of tobacco products for sale;

b) The specific products or brands available for sale; and

c) The prices of the products,

and the brand element may be visibly displayed, but only as prescribed.

3. Unless otherwise prescribed, no person shall sell a tobacco product through the mail, the Internet or a vending machine.

4. No person shall display a tobacco product at the point of sale or in a manner that permits the customer to handle the product prior to purchase except in the case of cigar bars and cigar stores.”[footnote 32]

The legislation in Turks and Caicos provides a straightforward display ban although it could be seen as too broad since it is not limited and includes all displays by any person, not just displays at the point of sale.

“1. A person shall not display a tobacco product in such a way that the tobacco product is visible to the public.

2. The prohibition under subsection (1) shall not apply to individuals incidentally or accidentally displaying a tobacco product during carrying or use.

3. This section applies to cigarette dispensers provided by a manufacturer and these devices shall not be used for the purposes of advertisement or the promotion of a tobacco product and shall meet the prescribed requirements.

4. A person who contravenes this section commits an offence.”[footnote 33]

The legislation in the British Virgin Islands prohibits the sale of tobacco products, unless the tobacco products are hidden from view of the general public at the point of sale.

“No person shall sell or offer to sell tobacco products unless the tobacco products are hidden from view of the general public at point of sale, provided that retailers may post signs indicating that tobacco products are available for sale, the specific products or brands available for sale, and their respective prices if the brand elements are not visibly displayed.”[footnote 34]

5.4 Ban on free distribution or incentive to purchase

The FCTC says that prohibiting marketing incentives, such as winning prizes for buying tobacco products or collecting coupons with discounts on future purchases, should be banned as they encourage the purchasing of tobacco.

Examples

In the UK, legislation prohibits free distribution. It does not matter whether the product or coupon accompanies something else, or is given away separately.

In the Cayman Islands, the legislation prohibits the offer of any inducement to buy a tobacco product or free distribution of tobacco products.

“No person shall, in the course of business

a) offer or provide any consideration, direct or indirect, as an inducement to purchase a tobacco product, including

i. a gift to a purchaser or a third party;

ii. a bonus;

iii. a premium;

iv. cash;

v. a rebate; or

vi. the right to participate in a game, lottery or contest; or

b) distribute a tobacco product without monetary consideration or in consideration of the purchase of a product or service or the performance of a service.”[footnote 35]

5.5 Restrictions on locations for sales of tobacco products

Some countries and territories place restrictions on where people can sell cigarettes. These places often include healthcare or educational premises.

Example

The British Virgin Islands prohibits sales of tobacco products other than in prescribed places and not in health institutions, educational institutions and recreational facilities.

“No person shall sell or offer to sell tobacco products in a place other than a prescribed place and, notwithstanding the generality of the aforesaid, no person shall sell or offer to sell tobacco products in any of the following places:

a) health institutions, including hospitals, pharmacies and health clinics;

b) educational institutions, including pre-primary, primary, secondary, and post secondary schools;

c) recreational facilities, including parks, movie theatres and sports facilities.”[footnote 36]

5.6 Ban on toy or candy cigarettes

Toy and candy cigarettes make smoking more appealing to children. The FCTC suggests banning these products to reduce the appeal of cigarettes.

Example

The legislation in Turks and Caicos provides for a ban on toy or candy cigarettes.

“Prohibition on toy or candy cigarettes

  1. A person shall not

a) import or manufacture; or

b) sell or supply, display for sale or distribute,

sweets, snacks, toys or other non-tobacco items or objects in the form of tobacco products, or which imitate tobacco products.”[footnote 37]

5.8 Ban on sales in packs of less than 20 cigarettes

Banning the sale of cigarettes in packs of 20 or less helps to reduce the affordability of tobacco.

Example

The UK complies with Article 14 of the EU TPD in restricting sales to packs of no less than 20 cigarettes and 30g of hand-rolling tobacco.

“Unit packets of cigarettes shall have a cuboid shape. Unit packets of roll-your-own tobacco shall have a cuboid or cylindrical shape, or the form of a pouch. A unit packet of cigarettes shall include at least 20 cigarettes. A unit packet of roll-your-own tobacco shall contain tobacco weighing not less than 30 g.”[footnote 38]

6. Additional measures to make sure that legislation is robust and enforceable

Any territory looking to strengthen its legislation needs to make sure that people will comply with the legislation and, if not, enforcement measures are straightforward. This chapter outlines suggestions to help people understand the reasons for legislation, avoid loopholes and to try and future-proof the legislation against future changes.

Reason and purpose of the legislation

In some legislation, the reason for its introduction is explicitly described. This is useful for the passage of legislation through parliaments or other processes.

Where the purpose of the legislation is clearly stated and evidence-based, it is difficult to argue against. This also helps to explain the need for change to the public and people who are responsible for premises affected by the legislation.

Legislation already in place

If laws exist that are working in spite of potential loopholes, then the territory may feel the legislation in place is good enough. For example, Bermuda does not have a full ban on tobacco advertising in place but the law is working at the moment.

However, this could leave the territory at risk of being exploited in the future.

Consider appropriate penalties

Enforcement and the use of penalties not only punishes offenders, but also creates a deterrent and supports wider compliance with the regulations. Penalties will need to be appropriate to a territory and should consider the level of offence. For example, a territory might want to consider a far higher penalty for a business owner that allows smoking on their premises than the individual who is smoking.

New and emerging products

The FCTC definition of tobacco product does not cover the latest tobacco product innovations, in particular heated tobacco products (HTP) and the devices used to consume HTP. HTP are not “for smoking, sucking, chewing or snuffing”. So, legislation requires a more inclusive phrase to ensure that HTP and any other new tobacco products are captured. The EU TPD definition section Article 2.5 uses the phrase “or any other means of consumption”. There is another provision for control of “novel tobacco products” introduced after 2014 in Article 19 of the EU TPD.

Also, some devices used for HTP are not tobacco products at all (because they do not contain tobacco) and can have separate branding from the tobacco product.

Some tobacco companies have been able to market HTP devices without infringing the advertising ban or the brand sharing or brand stretching prohibitions in place in many countries. Alternatively, “devices” can be separately defined. This is a new issue which countries are only starting to address in legislation.

Including e-cigarettes in the definition of smoking causes confusion and is increasingly unjustifiable in light of the evidence on health risks and their widespread use as an alternative to smoking. E-cigarettes contain no tobacco and should not be classified as a tobacco product.

  1. Gibraltar. Command Paper on a law to introduce a ban on smoking in certain public places, premises and in public service vehicles, Section 2(1), 2012 ↩

  2. Guernsey. The Smoking (Prohibition in Public Places and Workplaces) (Guernsey) Law, 2005 ↩

  3. St Helena. Tobacco Control Ordinance, Section 4, 2011 ↩

  4. England. Health Act 2006, Part 1 section 2 (7), Department of Health ↩

  5. British Virgin Islands. Tobacco Products Control Act 2006, Part 3, Section 7 (e) ↩

  6. British Virgin Islands. Tobacco Products Control Regulations 2007, Section 8 ↩

  7. Gibraltar. Command Paper on a law to introduce a ban on smoking in certain public places, premises and in public service vehicles, Section 15 (1), 2012 ↩

  8. Turks and Caicos Islands. Tobacco Control (Amendment) Ordinance 2016, Section 23 ↩

  9. British Virgin Islands. Tobacco Products Control Regulations 2007, Section 9 (1) (c) ↩

  10. British Virgin Islands. Tobacco Products Control Regulations 2007, Section 10 ↩

  11. British Virgin Islands. Tobacco Products Control Act 2006, Section 2 ↩

  12. Bermuda. Tobacco Products (Public Health) Act 1987, Section 2 ↩

  13. British Virgin Islands. Tobacco Products Control Act 2006, Section 2 ↩

  14. British Virgin Islands. Tobacco Products Control Regulations 2007, Section 2 ↩

  15. Bermuda. Tobacco Control Act 2015, Section 2 ↩

  16. Bermuda. Tobacco Control Act 2015, Section 7 ↩

  17. Bermuda. Tobacco Control Act 2015, Section 16 ↩

  18. Canada. Tobacco Products Labelling Regulations (Cigarettes and Little Cigars), Section 13, 2011 ↩

  19. Guernsey. The Tobacco Advertising (Guernsey) Regulations 2010, Section 1 ↩

  20. Cayman Islands. Tobacco Regulations 2010, Section 8 (2) ↩

  21. Bermuda. Tobacco Control Act 2015, Section 8 ↩

  22. Bermuda. Tobacco Control Act 2015, Section 21 ↩

  23. Bermuda. Tobacco Control Act 2015, Section 29-36 ↩

  24. British Virgin Islands. Tobacco Products Control Regulations 2007, Schedule 4 and Section 11 ↩

  25. Turks and Caicos Islands. Tobacco Control Ordinance 2015, Section 2 ↩

  26. Guernsey. Tobacco Advertising (Guernsey) Law 1997, Section 6 ↩

  27. Turks and Caicos Islands. Tobacco Control Ordinance 2015, Section 29 ↩

  28. Turks and Caicos Islands. Tobacco Control Ordinance 2015, Section 48 ↩

  29. Cayman Islands. The Tobacco Law 2008, Part IV ↩

  30. Turks and Caicos Islands. Tobacco Control Ordinance 2015, Section 25 ↩

  31. British Virgin Islands. Tobacco Products Control Act 2006, Section 5, 6 and 7 ↩

  32. Cayman Islands. The Tobacco Law 2008, Section 11 ↩

  33. Turks and Caicos Islands. Tobacco Control Ordinance 2015, Section 26 ↩

  34. British Virgin Islands. Tobacco Products Control Act 2006, Section 5(5) ↩

  35. Cayman Islands. The Tobacco Law 2008, Section 9 ↩

  36. British Virgin Islands. Tobacco Products Control Act 2006, Section 5(4) ↩

  37. Turks and Caicos Islands. Tobacco Control Ordinance 2015, Section 28 ↩

  38. England. The Standardised Packaging of Tobacco Products Regulations 2015, Sections 4 and 8, Department of Health ↩

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