First Previous (PART 2 Office of Tobacco Control)

6 2002

PUBLIC HEALTH (TOBACCO) ACT, 2002

PART 3

Regulation and Control of Sale, Marketing and Smoking of Tobacco Products

Prohibition of advertising of tobacco products.

33. —(1) Subject to section 34 and 35, a person who advertises, or causes the advertisement of, a tobacco product shall be guilty of an offence.

(2) It shall be an offence for a person to sell or cause to be sold, by retail, or otherwise supply or cause to be supplied, to a member of the public a product (other than a tobacco product) that bears—

(a) the name of the manufacturer of a tobacco product, or the name of any brand of tobacco product, or

(b) any trade description, designation, trademark, emblem, marketing image or logo by reference to which a tobacco product is marketed or sold.

Advertisements in foreign publications.

34. —(1) The Office may, upon the application in writing of a press distributor, exempt from the application of section 33 advertising of tobacco products contained in such publications as are specified in the exemption concerned for such period (not exceeding one year) as is so specified, where it is satisfied that—

(a) the publication concerned has a circulation in the State—

(i) in the case of a daily or weekly publication, not exceeding 3,000, or

(ii) in the case of any other publication, not exceeding 1,000,

(b) it would not be practicable for economic reasons to require—

(i) the excision or omission from the publication of an advertisement the inclusion of which in a publication distributed in the State would, but for the granting of an exemption under this section, constitute an offence under section 33 , or

(ii) the publisher concerned to produce an edition of the publication for distribution solely or mainly in the State,

(c) no part of the publication is printed specially or mainly for distribution in the State,

(d) any advertisement of tobacco products contained in the publication is lawful in the place where the publication is printed or first published,

(e) the publisher of the publication does not publish an edition thereof that does not contain advertisements of tobacco products,

(f) the publication is not produced solely or mainly for the purpose of promoting the smoking or sale of tobacco products, and

(g) the publication is not produced solely or mainly for sale or distribution to persons who have not attained the age of 18 years.

(2) Section 33 shall not apply to an advertisement in a publication in respect of which an exemption under this section is in force.

(3) An exemption under this section shall be in writing.

(4) The Office may revoke an exemption under this section where, in respect of the publication concerned, it ceases to be satisfied in relation to any one or more of the matters specified in subsection (1).

(5) In this section—

“press distributor” means a person who carries on the business of supplying newspapers, magazines or other periodicals to persons for the purpose of their selling those newspapers, magazines or periodicals by retail;

“publication” includes a newspaper, magazine or any other periodical.

Advertisements directed at persons engaged in the sale etc. of tobacco products.

35. Section 33 shall not apply to the advertising of tobacco products, in such form and subject to such conditions as may be prescribed by regulations made by the Minister, that is directed solely at persons who carry on, in whole or in part, the business of selling or distributing tobacco products.

Prohibition of sponsorship.

36. —(1) It shall be an offence for a person to give financial or other assistance, or cause financial or other assistance to be given, to or for the benefit of a person, or for or in relation to an event or activity, in consideration of the—

(a) use, display or advertising by the person, or at the event or activity concerned,

(b) association with the person, event or activity, or

(c) promotion,

of a tobacco product, the name of a tobacco manufacturer or importer, the name of a brand of tobacco product or a trademark, emblem, marketing image or logo used in the marketing of a tobacco product.

(2) It shall be an offence for a person to receive financial or other assistance to which subsection (1) applies.

Register of retailers of tobacco products.

37. —(1) The Office shall, on the commencement of this section, cause to be established and maintained a register of all persons who carry on, in whole or in part, the business of selling tobacco products by retail (hereafter in this Act referred to as “the register”).

(2) The Office may, for the purpose of defraying any expense incurred in establishing or maintaining the register, charge each person registered under this section a fee of such amount as may be determined by the Minister (in this section referred to as the “appropriate fee”).

(3) Where a person proposes to carry on, in whole or in part, the business of selling tobacco products by retail he or she shall, in accordance with this section, apply to the Office to be registered in the register.

(4) A person who immediately before the commencement of this section was carrying on, in whole or in part, the business of selling tobacco products by retail shall, if he or she wishes to continue carrying on that business, apply, not later than 3 months after such commencement, to the Office to be registered in the register.

(5) An application under this section shall—

(a) be in writing,

(b) specify the name of the applicant and the address at which he or she ordinarily resides,

(c) specify the address of each premises at which the applicant carries on, in whole or in part, the business of selling tobacco products by retail,

(d) contain such other information as may be prescribed by regulations made by the Minister,

and shall be accompanied by the appropriate fee.

(6) As soon as practicable after an application under this section, in respect of which there is compliance with subsection (5), is received by the Office, the Office shall, subject to subsection (9), enter in the register—

(a) the applicant's name and the address at which he or she ordinarily resides,

(b) the address of each premises at which he or she carries on, in whole or in part, the business referred to in subsection (1),

(c) a number from which it will be possible to identify the applicant (in this Act referred to as the “registration number”),

(d) the names of the persons who supply the applicant with tobacco products in connection with his or her business, and

(e) such other particulars as the Office considers appropriate,

and a person shall, upon the Office so entering the matters specified in this subsection in relation to him or her, be registered for the purposes of this section.

(7) If a person, who is registered under this section, is convicted of an offence under this Act, and the offence relates to or was committed on premises in respect of which the person carries on, in whole or in part, the business of selling tobacco products by retail (being premises in respect of which the person is for the time being so registered) the Office shall, in circumstances where the person is so registered in respect of premises other than the first-mentioned premises, remove the address of the first-mentioned premises from the register, and such person shall not, before the expiration of—

(a) the period of 3 months (in the case of a person convicted summarily of an offence), or

(b) the period of one year (in the case of a person convicted of an offence on indictment),

from the address being so removed, be eligible to be registered under this section in respect of the premises concerned, and the Office shall not, until such expiration, perform, in relation to any application by the person under this section, any function under subsection (6).

(8) If a person, who is registered under this section, is convicted of an offence under this Act, and the offence relates to or was committed on premises in which the person carries on, in whole or in part, the business of selling tobacco products by retail (being the only premises in respect of which the person is for the time being so registered) the Office shall remove from the register that person's name, the address of those premises, the registration number in respect of him or her and any other particulars entered in the register relating to him or her, and such person shall not, before the expiration of—

(a) the period of 3 months (in the case of a person convicted summarily of an offence), or

(b) the period of one year (in the case of a person convicted of an offence on indictment),

from his or her being so removed, be eligible to be registered under this section in respect of those premises, and the Office shall not, until such expiration, perform, in relation to any application by the person under this section, any function under subsection (6).

(9) Where a person, who has made an application under subsection (3) in respect of which the Office has not yet performed a function under subsection (6), is convicted of an offence under this Act, that person shall not be eligible to be registered under this section before the expiration of—

(a) the period of 3 months (in the case of a person convicted summarily of an offence), or

(b) the period of one year (in the case of a person convicted of an offence on indictment),

from him or her being so convicted, and the Office shall not during that period perform any function under subsection (6) in relation to his or her application.

(10) Where a person to whom subsection (4) applies is convicted of an offence under this Act during the 3 month period referred to therein he or she shall not be eligible to be registered under this section before the expiration of—

(a) the period of 6 months (in the case of a person convicted summarily of an offence), or

(b) the period of 15 months (in the case of a person convicted of an offence on indictment),

from the commencement of this section and the Office shall not during the said period of 6 months or the said period of 15 months, as the case may be, perform any function under subsection (6) in relation to an application under this section by him or her after his or her being so convicted.

(11) A person registered in the register shall, if a particular entered in the register in accordance with subsection (6) ceases to be correct, so inform the Office as soon as may be.

(12) The Office shall upon becoming aware that any particular entered in the register is incorrect or has ceased to be correct make such alterations to the register as it considers necessary.

(13) A person who, in purported compliance with subsection (5), knowingly or recklessly provides information or a particular to the Office that is false or misleading in a material respect, or who believes any such information or particular provided by him or her, in purported compliance with that subsection, not to be true, shall be guilty of an offence.

(14) Subject to subsection (15), it shall be an offence for a person to sell a tobacco product, or cause a tobacco product to be sold, by retail.

(15) (a) It shall be lawful for a person to sell a tobacco product, or cause a tobacco product to be sold by retail, in accordance with this Act, from premises in respect of which he or she is registered under this section.

(b) It shall be lawful for a person who immediately before the commencement of this section carried on, in whole or in part, the business of selling tobacco products by retail to sell a tobacco product, or cause a tobacco product to be sold, by retail, in accordance with this Act, during the period of 3 months after such commencement from premises (being premises in respect of which he or she is not registered under this section) in which, immediately before such commencement, he or she carried on such business.

(c) It shall be lawful for a person to whom paragraph (b) applies and who has made an application under subsection (4) in respect of premises to which that subsection applies to sell a tobacco product, or cause a tobacco product to be sold, by retail, in accordance with this Act, during the period of 12 months after the expiration of the period of 3 months referred to in that subsection, from such premises (being premises in respect of which he or she is not registered under this section).

Prohibition of certain marketing practices.

38. —(1) It shall be an offence for a person to sell cigarettes by retail other than in a packet containing not less than 20 cigarettes.

(2) It shall be an offence for a person to manufacture, import, supply, sell or invite an offer to purchase an oral smokeless tobacco product.

(3) It shall be an offence for a person to sell confectioneries normally intended for sale to children, that have been manufactured in such a way as to resemble in appearance a type of tobacco product.

(4) It shall be an offence for a person to—

(a) import,

(b) sell (by retail or otherwise), or

(c) otherwise supply to, or invite an offer to purchase by, any person,

a tobacco product, the packaging of which does not bear a warning in such form and of such a type as may be prescribed by regulations made by the Minister, that is intended to inform the public that the consumption of the product is injurious to health, and a statement containing such other information as may be so prescribed in such form as may be so prescribed.

(5) It shall be an offence for a person to—

(a) import,

(b) sell (by retail or otherwise), or

(c) otherwise supply to, or invite an offer to purchase by, any person,

a tobacco product, the packaging of which does not bear a number in such form as may be prescribed by regulations made by the Minister, that enables the lot or batch from which the product originated and the date and place of its manufacture to be ascertained.

(6) It shall be an offence for a person to supply free of charge to a member of the public any tobacco product for the purpose of promoting the consumption of that product.

(7) It shall be an offence for a person to supply or sell to a member of the public any voucher, coupon or other document or thing (intended to be used as a substitute for money) for the purpose of its being—

(a) used as payment or payment in part, or

(b) otherwise exchanged,

for a tobacco product.

(8) It shall be an offence for a person to sell a tobacco product by retail, or supply a tobacco product to, or invite an offer to purchase by, a member of the public of a tobacco product where part of the consideration to be given to the purchaser is a gift, token, trading stamp, coupon or other document or thing that may be exchanged for or used as payment or payment in part for certain goods.

(9) The Minister may, for the purpose of ensuring that the price at which a tobacco product is sold does not constitute a sales promotion device, by regulations make such provision in relation to the price at which tobacco products or tobacco products of such class as may be specified in the regulations may be sold as he or she considers appropriate.

(10) A person who sells or invites an offer to purchase a tobacco product in contravention of regulations under subsection (9) shall be guilty of an offence.

Specifications in relation to tobacco products.

39. —(1) Such tobacco products and such classes of tobacco products as may be prescribed by regulations made by the Minister shall comply with such standards and requirements relating to their manufacture, importation, distribution and sale as may be so prescribed.

(2) A person who manufactures or imports, or who sells (whether by retail or otherwise) or invites an offer to purchase, a tobacco product in relation to which there is a contravention of regulations under this section shall be guilty of an offence.

Requirement to provide information on and test tobacco products.

40. —(1) A manufacturer or importer of tobacco products shall provide the Office with such information (within such period as it may, from time to time by notice in writing, require) relating to—

(a) the tobacco products concerned,

(b) tobacco products of such a class as the Office may specify, or

(c) tobacco products that are sold under such brand name as may be so specified,

including information relating to their composition or properties, and to their sale or marketing.

(2) The Office may by notice in writing require the manufacturer or importer of a tobacco product to carry out such tests as are specified in the notice on such tobacco products manufactured by him or her as are so specified.

(3) The manufacturer or importer of a tobacco product shall, when carrying out a test pursuant to a requirement under subsection (2), permit such person as may be specified in a notice under that subsection to attend at the place or places where such test is carried out and observe its being carried out.

(4) A manufacturer or importer who carries out a test pursuant to a notice under subsection (2) shall, not later than 14 days from its obtaining the results of the test, furnish the Office with a statement of those results which shall contain such information and be in such form as the Office may specify.

(5) A person who contravenes this section or a requirement under this section shall be guilty of an offence.

Publication of certain information etc.

41. —(1) The Office may publish such information and such results of tests received under section 40 in such manner as it considers appropriate.

(2) Where the Office proposes to publish information or results of tests under subsection (1) it shall, not later than 21 days before so doing, notify the manufacturer or importer concerned, in writing, that it so proposes.

(3) The High Court may, if of the opinion that the publication of information or the results of tests in accordance with subsection (1) would result in the disclosure of a secret manufacturing process, direct the Office not to publish such information or results, upon application being made to the High Court in that behalf by the manufacturer or importer concerned.

(4) An application referred to in subsection (3) may be brought not later than 7 days from the receipt of the notification under subsection (2).

(5) The Office shall comply with a direction under subsection (3).

(6) Proceedings under subsection (3) shall be held in camera.

Prohibition on certain assertions in relation to tobacco products.

42. —(1) Where the packaging of a tobacco product or any printed material attached to or accompanying a tobacco product or such packaging—

(a) bears an assertion that—

(i) smoking does not cause life threatening diseases,

(ii) the smoking or consumption of one brand or class of tobacco product is less harmful than the smoking or consumption of others,

(iii) the smoking of tobacco products is not addictive,

(iv) filters attached to, additives to or other ingredients of a tobacco product render it less harmful than tobacco products that do not have a filter, or contain such additives or ingredients,

(b) bear the words “low tar”, “light”, “ultra light”, “mild”, or such similar words or terms as may be prescribed by regulations made by the Minister in a manner that implies that the tobacco product or brand concerned is less harmful than other tobacco products or brands of tobacco product, as the case may be,

the manufacturer, importer and distributor of the tobacco product concerned shall each be guilty of an offence.

(2) It shall be an offence for a person to sell by retail a tobacco product where the package containing the product bears an assertion referred to in subsection (1)(a) or words referred to in subsection (1)(b).

Offences relating to sale by retail of tobacco products.

43. —(1) Subject to subsection (2), it shall be an offence for a person to sell a tobacco product by retail, or cause a tobacco product to be sold by retail, by means of self service.

(2) It shall be lawful for tobacco products to be sold by retail, in accordance with regulations made by the Minister, by means of a vending machine on licensed premises or the premises of a registered club by such persons, or by persons belonging to such classes of persons, as are specified in the regulations (being persons who are registered under section 37 in respect of the licensed premises concerned or the premises of the registered club concerned).

(3) A person registered under section 37 (other than a person to whom regulations under subsection (2) apply) shall ensure that tobacco products sold by him or her are kept in a closed container or dispenser that is not visible or accessible to any person other than the first-mentioned person, or a person employed by him or her in connection with the business of selling goods by retail while so employed.

(4) A person registered under section 37 shall ensure that—

(a) the registration number in respect of him or her is affixed to the container, dispenser or vending machine, as the case may be,

(b) subject to paragraph (c) and the European Communities (Requirements to Indicate Product Prices) Regulations, 2001 (S.I. No. 422 of 2001)—

(i) no notice, sign or display shall be displayed, and

(ii) no leaflet, circular, pamphlet or brochure shall be issued to the public or given to a purchaser of a product,

at any place, indicating that tobacco products may be purchased at the premises concerned,

(c) a sign is displayed at the premises concerned—

(i) in such a manner and form as may be prescribed by regulations made by the Minister,

(ii) informing the public that tobacco products may be sold at those premises to persons who have attained the age of 18 years, and

(iii) providing such other information as may be so prescribed.

(5) A person who contravenes subsection (3) or (4) shall be guilty of an offence.

(6) For the purposes of subsection (1), a tobacco product shall be deemed to be sold by means of self service where the purchaser is permitted to supply himself or herself, either upon or before payment, with the tobacco product concerned whether by means of the depositing of money or a token (intended to be used as a substitute for money) in a machine containing the tobacco product or otherwise.

Exemption from section 43 .

44. —(1) This section shall apply to a person who carries on in whole the business of selling—

(a) tobacco products, or

(b) products used for the purposes of or in connection with smoking.

by retail, other than a person who carries on in whole such business being a subsidiary of a company that does not carry on in whole such business.

(2) The Minister may issue a certificate to a person to whom this section applies, upon application being made in that behalf by that person, stating that section 43 shall not apply to him or her in respect of such premises as are specified in the certificate, and accordingly, where the Minister issues such a certificate, section 43 shall not apply to the person in relation to those premises while such certificate remains in force.

(3) The Minister shall not issue a certificate where—

(a) the person making the application concerned is in contravention of regulations under this section, or

(b) there is a contravention of such regulations in respect of the premises to which the application concerned relates.

(4) The Minister may make regulations for the purposes of this section, and, without prejudice to the generality of the foregoing, such regulations may provide—

(a) for the minimum size of premises to which a certificate under this section shall apply,

(b) that such premises shall not form part of another premises in which products other than those referred to in subsection (1) are sold,

(c) for the proportion of tobacco products that may be sold in the form of cigarettes on those premises,

(d) for the form of an application under this section and the information and documentation that shall accompany such application,

(e) for the payment of fees by a person who makes an application under this section, for the purposes of defraying expenses incurred in considering such application or issuing a certificate under this section, or

(f) the period in respect of which a certificate under this section shall continue in force.

(5) The Minister may revoke a certificate under this section if—

(a) the person to whom the certificate is issued—

(i) contravenes regulations under this section, or

(ii) ceases to be a person to whom this section applies,

or

(b) there is a contravention of such regulations in relation to the premises concerned.

(6) In this section “subsidiary” has the same meaning as it has in section 155 of the Companies Act, 1963 .

Prohibition on sale of tobacco products to persons under 18 years of age.

45. —(1) It shall be an offence for a person to sell a tobacco product by retail, or supply a tobacco product, to, or invite an offer to purchase a tobacco product by, a person who has not attained the age of 18 years.

(2) In proceedings for an offence under subsection (1) it shall be a defence for the person against whom such proceedings are brought to prove that—

(a) he or she made all reasonable efforts to satisfy himself or herself that the person to whom the alleged offence relates had at the time of the alleged commission of the offence attained the age of 18 years, or

(b) the person specified in paragraph (a) produced to the first-mentioned person an age card, for the time being in force, relating to the person so specified.

(3) In proceedings for an offence under subsection (1) the court may have regard to a person's physical appearance or attributes for the purpose of determining whether that person is under the age of 18 years or was, at the time of the alleged commission of the offence to which the proceedings relate, under the age of 18 years.

(4) In this section “age card” has the same meaning as it has in Part IV of the Intoxicating Liquor Act, 1988 .

Display of signs.

46. —(1) There shall be displayed at all times at all premises (in which or in part of which the smoking of tobacco products is permitted) to which members of the public have access, either as of right or with the permission of the occupier of those premises, a sign indicating clearly those parts of the premises in which smoking is permitted and those parts of the premises in which smoking is not permitted, and each such sign shall display the name of the occupier or other person in charge of the premises concerned and the name of the person to whom a complaint may be made by a member of the public for the time being present on the premises who observes another person smoking a tobacco product in a part of the premises in which smoking is not permitted.

(2) There shall be displayed at all times in a public service vehicle a sign stating that smoking is not permitted in that vehicle.

(3) Where there is a contravention of subsection (1), the occupier and person in charge of the premises concerned shall each be guilty of an offence.

(4) Where there is a contravention of subsection (2), the owner and person in charge of the public service vehicle concerned shall each be guilty of an offence.

(5) In this section “owner”, when used in relation to a mechanically propelled vehicle that is the subject of a hire-purchase agreement, means the person entitled to be in possession of the vehicle under the agreement.

Prohibition or restriction on smoking of tobacco products.

47. —(1) The Minister may, by regulations, prohibit or restrict the smoking of tobacco products in—

(a) an aircraft, train, ship or other vessel, public service vehicle, or a vehicle used for the carriage of members of the public for reward other than a public service vehicle,

(b) all or part of—

(i) a health premises, or

(ii) a hospital that is not a health premises,

(c) all or part of a school or college,

(d) all or part of a building to which the public has access, either as of right or with the permission of the owner or occupier of the building, and which belongs to, or is in the occupation of—

(i) the State,

(ii) a Minister of the Government,

(iii) the Commissioners of Public Works in Ireland, or

(iv) a body established by or under an Act of the Oireachtas,

(e) a cinema, theatre, concert hall or other place normally used for indoor public entertainment,

(f) all or part of a licenced premises, registered club, or place of work, or

(g) all or part of any other premises or place,

generally or of such a class as may be specified in the regulations (hereafter in this Act referred to as a “specified place”).

(2) Regulations under this section may revoke regulations made under section 2 of the Act of 1988 and regulations under the said section 2 shall notwithstanding section 8 continue in operation as if made under this section.

(3) Any person who contravenes a provision of regulations made under this section shall be guilty of an offence.

(4) Where in relation to a specified place there is a contravention of regulations under this section the occupier, manager and any other person for the time being in charge of the place shall each be guilty of an offence.

(5) In proceedings for an offence under this section, it shall be a defence for a person against whom such proceedings are brought to show that he or she made all reasonable efforts to ensure compliance with such provisions of regulations under this section as are alleged to have been contravened.

(6) In this section—

“college” means a university, institute of technology or other establishment at which third level education is provided;

“health premises” means any hospital, sanatorium, home, laboratory, clinic, health care centre or similar premises required for the provision of services under the Health Acts, 1947 to 2001, provided and maintained by a health board under section 38 of the Act of 1970;

“place of work” has the same meaning as it has in the Safety, Health and Welfare at Work Act, 1989 ;

“school” has the same meaning as it has in the Education Act, 1998 .

Authorised officer.

48. —(1) The chief executive of the Office shall appoint such one or more persons, as he or she considers appropriate, to be an authorised officer or authorised officers for the purposes of this Act.

(2) The chief executive officer of a health board shall, in relation to the functional area of that health board, appoint such one or more persons, as he or she considers appropriate, to be an authorised officer or authorised officers for the purposes of this Act.

(3) A person appointed to be an authorised officer under this section shall, on his or her appointment, be furnished—

(a) in the case of a person appointed under subsection (1), by the Office, and

(b) in the case of a person appointed under subsection (2), by the health board concerned,

with a warrant of his or her appointment, and when exercising a power conferred by this Act shall, if requested by any person thereby affected, produce such warrant to that person for inspection.

(4) An authorised officer may, for the purposes of this Act—

(a) at all reasonable times enter (if necessary by the use of reasonable force), subject to subsection (6), any premises at which he or she has reasonable grounds for believing that—

(i) any trade, business or activity connected with the manufacture, processing, disposal, exportation, importation, distribution, sale, storage, packaging or labelling of a tobacco product is or has been carried on, or

(ii) records relating to such trade, business or activity are kept,

(b) at all reasonable times enter (if necessary by the use of reasonable force) any specified place,

(c) at such premises inspect and take copies of, any books, records, other documents (including documents stored in non-legible form) or extracts therefrom, which he or she finds in the course of his or her inspection,

(d) remove any such books, records or documents from such premises and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,

(e) carry out, or have carried out, such examinations, tests, inspections and checks of—

(i) the premises,

(ii) any tobacco product or any article or substance used in the manufacture, processing or storage of tobacco products, at the premises, or

(iii) any equipment, machinery or plant at the premises,

as he or she reasonably considers to be necessary for the purposes of his or her functions under this Act,

(f) require any person at the premises or the owner or person in charge of the premises and any person employed there to give to him or her such assistance and information and to produce to him or her such books, documents or other records (and in the case of documents or records stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person's power or procurement, as he or she may reasonably require for the purposes of his or her functions under this Act,

(g) take samples of any tobacco product or any article or substance used in the manufacture, processing or storage of tobacco products found at the premises for the purposes of analysis and examination,

(h) direct that such tobacco products found at the premises as he or she, upon reasonable grounds, believes contravene a provision of this Act not be sold or distributed or moved from the premises, without his or her consent,

(i) secure for later inspection any premises or part of any premises in which a tobacco product, substance or article is found or ordinarily kept, or records, books or documents are found or ordinarily kept, for such period as may reasonably be necessary for the purposes of his or her functions under this Act, or

(j) take possession of and remove from the premises for examination and analysis any tobacco product or any substance or article used in the manufacture, processing or storage of tobacco products found there, and detain them for such period as he or she considers reasonably necessary for the purposes of his or her functions under this Act.

(5) When performing a function under this Act, an authorised officer may, subject to any warrant under subsection (7), be accompanied by such number of authorised officers or members of the Garda Síochána as he or she considers appropriate.

(6) An authorised officer shall not enter a dwelling, other than—

(a) with the consent of the occupier, or

(b) in accordance with a warrant issued under subsection (7).

(7) On the application of an authorised officer, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that—

(a) a tobacco product or any substance or article used in the manufacture, processing or storage of a tobacco product is to be found in any dwelling, or is being or has been subjected to any process or stored in any dwelling,

(b) books, records or other documents (including documents stored in non-legible form) referred to in subsection (4)(a)(ii) are being stored or kept in any dwelling, or

(c) a dwelling is occupied in whole or in part by an undertaking engaged in any trade, business or activity referred to in subsection (4)(a)(i),

issue a warrant authorising a named authorised officer accompanied by such other authorised officers or members of the Garda Síochána as may be necessary, at any time or times, within one month of the date of issue of the warrant, to enter the dwelling and perform the functions of an authorised officer under paragraphs (c), (d), (e), (f), (g), (h), (i) and (j) of subsection (4).

(8) Any person who obstructs or interferes with an authorised officer or a member of the Garda Síochána in the course of exercising a power conferred on him or her by this Act or a warrant under subsection (7) or impedes the exercise by the officer or member, as the case may be, of such power or fails or refuses to comply with a request or requirement of, or to answer a question asked by, the officer or member pursuant to this section, or in purported compliance with such request or requirement or in answer to such question gives information to the officer or member that he or she knows to be false or misleading in any material respect, shall be guilty of an offence.

(9) Where an authorised officer, upon reasonable grounds, believes that a person has committed an offence under this Act he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.

(10) A person who falsely represents himself or herself to be an authorised officer shall be guilty of an offence.

(11) In this section—

“premises” means any place, ship or other vessel, aircraft, railway wagon or other vehicle, and includes a container used to transport tobacco products or any article or substance used in the manufacture, processing or storage of tobacco products;

“record” includes, in addition to a record in writing—

(a) a disc, tape, sound-track or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,

(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and

(c) a photograph,

and any reference to a copy of a record includes—

(i) in the case of a record to which paragraph (a) applies, a transcript of the sounds or signals embodied therein,

(ii) in the case of a record to which paragraph (b) applies, a still reproduction of the images embodied therein, and

(iii) in the case of a record to which paragraphs (a) and (b) apply, such a transcript together with such a still reproduction.

Indemnification of authorised officers.

49. —(1) Where the Office is satisfied that an authorised officer appointed by it, or any other member of the staff of the Office has discharged his or her duties in relation to the enforcement of the provisions of this Act in a bona fide manner, the Office shall indemnify the authorised officer, or such member of the staff of the Office against all actions or claims howsoever arising in respect of the discharge by him or her of his or her duties.

(2) Where a health board is satisfied that an authorised officer appointed by it has discharged his or her duties in relation to the enforcement of the provisions of this Act in a bona fide manner, the health board shall indemnify the authorised officer against all actions or claims howsoever arising in respect of the discharge by him or her of his or her duties.

Taking of samples by authorised officers.

50. —(1) Where an authorised officer takes a sample of a tobacco product or a sample of any substance or article used in the manufacturing, processing or storage of tobacco products, he or she shall divide the sample into 3 approximately equal parts, and place each part into separate containers which he or she shall forthwith seal and mark in such a manner as to identify it as part of the sample taken by that authorised officer.

(2) Where an authorised officer has complied with subsection (1) he or she shall—

(a) offer one of the sealed containers to the owner or person for the time being in charge or possession of the tobacco product, substance or article from which the sample concerned was taken,

(b) retain one of the said sealed containers, and

(c) forward, or cause to be forwarded, one of the sealed containers to a designated laboratory for the purposes of analysis.

(3) Where a tobacco product, or any substance or article used in the manufacturing, processing or storage of a tobacco product is contained in a container and its division into parts is (for whatever reason) not practicable, an authorised officer, who wishes to take samples of such tobacco product, substance or article for the purposes of analysis, shall take possession of 3 such containers belonging to the same batch, and each such container shall be deemed to be part of a sample for the purposes of subsection (1), and the provisions of subsections (1) and (2) shall apply thereto accordingly.

Laboratories.

51. —(1) The Minister may, for the purposes of this Act designate, by notice in writing published in Iris Oifigiúil

(a) a laboratory as a laboratory at which samples taken under this Act may be analysed (in this Act referred to as a “designated laboratory”), and

(b) a person as being a person who, or a class of persons the members of which, may, at a designated laboratory, analyse samples taken under this Act, and each such person or member is in this Act referred to as a “designated analyst”.

(2) As soon as practicable after a sample taken by an authorised officer under this Act has been received at a designated laboratory it shall be analysed and the composition, the amount and concentration of its ingredients and any other properties of the sample shall be determined by a designated analyst at that laboratory.

(3) As soon as practicable after compliance with subsection (2) a designated analyst engaged in the analysis of samples at the designated laboratory concerned shall forward the results of the analysis carried out on the sample concerned—

(a) in the case of a sample forwarded or caused to be forwarded under section 50 by an authorised officer appointed by the Office, to the Office, or

(b) in the case of a sample forwarded or caused to be forwarded under that section by an authorised officer appointed by the health board, to the health board concerned.

Evidence in proceedings for an offence.

52. —(1) In proceedings for an offence consisting of a contravention of this Act, a certificate purporting to be signed by a person employed or engaged at a designated laboratory stating the capacity in which that person is so employed or engaged and stating any one or more of the following, namely—

(a) that the person received a sample submitted to the designated laboratory,

(b) that, for such period as is specified in the certificate, the person had in his or her custody a sample so submitted, or

(c) that the person gave to such other person as is specified in the certificate a sample so submitted,

shall unless the contrary is proved be evidence of the matters stated in the certificate.

(2) In proceedings for an offence consisting of a contravention of this Act, a certificate purporting to be signed by a designated analyst stating any one or more of the following, namely—

(a) that he or she carried out any procedure for the purpose of detecting the presence of any substance in the sample so submitted, or

(b) that the sample concerned contained such substance or such amount thereof as is specified in the certificate,

shall unless the contrary is proved be evidence of the matters stated in the certificate.

(3) In proceedings for an offence under this Act the court may, if it considers that the interests of justice so require, direct that oral evidence of the matters stated in a certificate under this section be given and the court may, for the purpose of receiving oral evidence, adjourn the proceedings to a later date.

(4) A certificate under this section shall be in such form as may be prescribed by regulations made by the Minister.

(5) In proceedings for an offence under this Act, a tobacco product, or a package containing a tobacco product, that purports to bear the name of the manufacturer or importer of that product, shall unless the contrary is proved be evidence that the tobacco product was manufactured or imported, as the case may be, by the person concerned.

(6) In proceedings for an offence under this Act a tobacco product, or a package containing a tobacco product, that bears a trademark shall unless the contrary is proved be evidence that the product was manufactured by the person who at the time of the alleged commission of the offence owned that trademark.

(7) In this section “trademark” has the same meaning as it has in the Trade Marks Act, 1996 .

Forgery of documents.

53. —(1) It shall be an offence for a person to forge or utter knowing it to be forged—

(a) the register, an entry in the register or a document purporting to be an extract from the register (in this section referred to as “a forged register”), or

(b) a notice, certificate or other document purporting to be issued, granted or given under this Act (in this section referred to as “a forged document”).

(2) It shall be an offence for a person to alter with intent to defraud or deceive, or to utter knowing it to be so altered—

(a) the register, an entry in the register or an extract from the register (in this section referred to as “an altered register”), or

(b) a notice, certificate or other document issued, granted or given under this Act (in this section referred to as “an altered document”).

(3) It shall be an offence for a person to have, without lawful authority, in his or her possession a forged register, forged document, altered register or altered document.

(4) It shall be an offence for a person to aid or abet the commission of an offence under this section.