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Statutes of Newfoundland and Labrador 2016


CHAPTER 32

AN ACT TO AMEND THE SMOKE-FREE ENVIRONMENT ACT, 2005 AND THE TOBACCO CONTROL ACT

(Assented to June 7, 2016)

Analysis


              SMOKE-FREE ENVIRONMENT ACT, 2005

        1.   S.2 Amdt.
Definitions

        2.   S.4.1 Added
Hookah establishment

        3.   Ss.5 & 6 R&S
5.     Designated room
6.     Signs required

        4.   S.11 Amdt.
Regulations

              TOBACCO CONTROL ACT

        5.   Long title R&S

        6.   S.1 R&S
Short title

        7.   S.2 R&S
Definitions

        8.   S.2.1 Rep.
Purpose

        9.   S.3 Amdt.
Inspectors

      10.   S.3.4 Added
Flavoured tobacco

      11.   S.4 Amdt.
Offence

      12.   S.4.1 Amdt.
Sales prohibited in certain places

      13.   Ss.4.2 to 4.6 R&S
4.2   No display
4.3   No advertising or
        promotional material
4.4   Vending machine
4.5   Permitted display
4.6   Tobacconist shop and
        vapour products shop

      14.   S.5 Amdt.
Signs

      15.   S.7 Amdt.
Penalty

      16.   S.9 R&S
Removal of product

      17.   S.10 Amdt.
Regulations

      18.   NLR 1/02 Amdt.

      19.   NLR 78/99 Amdt.

      20.   Commencement



Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

SMOKE-FREE ENVIRONMENT ACT, 2005

SNL2005 cS-16.2 as amended

        1. (1) Section 2 of the Smoke-free Environment Act, 2005 is amended by adding immediately after paragraph (a) the following:

         (a.1)  "designated e-cigarette use room" means an enclosed room that is designated for e-cigarette use under section 5;

             (2)  Section 2 of the Act is amended by adding immediately after paragraph (b) the following:

         (b.1)  "e-cigarette" means

                      (i)  a product or device, whether or not it resembles a cigarette, containing a power source and heating element designed to vapourize an e-substance for inhalation or release into the air, or

                     (ii)  a product or device prescribed in the regulations similar in nature or use to a product or device described in subparagraph (i);

         (b.2)  "e-substance" means a solid, liquid or gas

                      (i)  for use in an e-cigarette that, on being heated, produces a vapour, regardless of whether the solid, liquid or gas contains nicotine, and

                     (ii)  that is not a controlled substance within the meaning of the Controlled Drugs and Substances Act (Canada);

             (3)  Section 2 of the Act is amended by adding immediately after paragraph (f) the following:

          (f.1)  "hookah establishment" means an establishment where persons smoke non-tobacco substances from a water pipe;

             (4)  Paragraph 2(l) of the Act is repealed and the following substituted:

              (l)  "smoke" or "smoking" means, except in paragraph 2(b) and section 5,

                      (i)  to smoke, hold or otherwise have control over an ignited tobacco product,

                     (ii)  to inhale or exhale vapour from an e-cigarette or to hold or otherwise have control over an activated e-cigarette, or

                    (iii)  to inhale or exhale vapour or smoke from a water pipe or to hold or otherwise have control over an activated water pipe;

             (5)  Section 2 of the Act is amended by deleting the word "and" at the end of paragraph (m) and adding immediately after that paragraph the following:

        (m.1)  "water pipe" means any ignited or heated smoking equipment used to burn tobacco or non-tobacco substances or a combination of tobacco and non-tobacco substances and draw the resulting smoke through a liquid before it is inhaled; and

 

        2. The Act is amended by adding immediately after section 4 the following:

Hookah establishment

      4.1 (1) Notwithstanding section 4, a hookah establishment operating at the time this section comes into force may continue to allow smoking of non-tobacco substances in the hookah establishment until June 30, 2017.

             (2)  An owner of a hookah establishment shall not permit a person under the age of 19 years to enter or work in the hookah establishment.

 

        3. Sections 5 and 6 of the Act are repealed and the following substituted:

Designated room

        5. (1) In this section, "smoking" means to smoke, hold or otherwise have control over an ignited tobacco product.

             (2)  In this section and paragraph 2(a.1), "e-cigarette use" means to inhale or exhale vapour from an e-cigarette or to hold or otherwise have control over an activated e-cigarette.

             (3)  Notwithstanding paragraph 4(1)(a), in a workplace that is

             (a)  a remote worksite as designated by the regulations;

             (b)  an underground mining operation; or

             (c)  a marine installation or structure as defined in section 152 of the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act (Canada),

an employer may, in accordance with the regulations, designate one or more enclosed rooms that are under that employer's control as designated smoking rooms or designated e-cigarette use rooms for employees.

             (4)  An operator may, in accordance with the regulations, designate one or more enclosed rooms in a facility that are under that operator's control as designated smoking rooms or designated e-cigarette use rooms for residents of that facility.

             (5)  An employer or operator and a person acting on behalf of either shall ensure that persons refrain from smoking or using an e-cigarette in a

             (a)  workplace referred to in subsection (3); or

             (b)  facility referred to in subsection (4),

under that employer’s or operator's control other than in a room designated for that purpose under subsection (3) or (4).

             (6)  A room that is normally used or occupied by non-smokers shall not be made a designated smoking room.

             (7)  A room that is normally used or occupied by non e-cigarette users shall not be made a designated e-cigarette use room.

Signs required

        6. (1) Employers, owners and operators shall post and keep posted those signs that may be prescribed under the regulations prohibiting smoking in a workplace, public place or facility referred to in subsection 4(1).

             (2)  An employer or operator shall post signs that identify designated smoking rooms and designated e-cigarette use rooms in a facility referred to in subsection 4(2) and a workplace referred to in subsection 5(3).

 

        4. Section 11 of the Act is amended by adding immediately after paragraph (a) the following:

         (a.1)  prescribing a product or device for the purpose of the definition of e-cigarette;

             (2)  Paragraphs 11(b) and (b.1) of the Act are repealed and the following substituted:

             (b)  respecting the independent ventilation of designated smoking rooms and designated e-cigarette use rooms;

         (b.1)  designating a worksite as a remote worksite for the purpose of subsection 5(3);

TOBACCO CONTROL ACT

SNL1993 cT-4.1
as amended

        5. The long title of the Tobacco Control Act is repealed and the following substituted:

 

AN ACT RESPECTING THE CONTROL OF THE SALE OF TOBACCO AND VAPOUR PRODUCTS

 

        6. Section 1 of the Act is repealed and the following substituted:

Short title

        1. This Act may be cited as the Tobacco and Vapour Products Control Act.

 

        7. Section 2 of the Act is repealed and the following substituted:

Definitions

        2. In this Act

             (a)  "accessory" means a product that may be used in the consumption of tobacco and includes cigarette papers, a filter, a pipe, a cigarette holder and a cigar clip;

             (b)  "e-cigarette" means

                      (i)  a product or device, whether or not it resembles a cigarette, containing a power source and heating element designed to vapourize an e-substance for inhalation or release into the air, or

                     (ii)  a product or device prescribed in the regulations similar in nature or use to a product or device described in subparagraph (i);

             (c)  "e-substance" means a solid, liquid or gas

                      (i)  for use in an e-cigarette that, on being heated, produces a vapour, regardless of whether the solid, liquid or gas contains nicotine, and

                     (ii)  that is not a controlled substance within the meaning of the Controlled Drugs and Substances Act (Canada);

             (d)  "flavoured tobacco" means tobacco that

                      (i)  has a characterizing scent or flavour, other than tobacco, that is noticeable before or during use, or both,

                     (ii)  by its packaging, labelling, advertising or otherwise, is represented as being flavoured, or

                    (iii)  is prescribed in the regulations as being flavoured,

but does not include tobacco exempted by the regulations;

             (e)  "inspector" means a person appointed or designated under section 3;

             (f)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

             (g)  "minor" means a person under the age of 19 years;

             (h)  "non-tobacco shisha" means a non-tobacco product containing herbs or other plants and materials intended for use in a water pipe;

              (i)  "retailer" means a person who in the ordinary course of business sells or supplies tobacco, vapour products or non-tobacco shisha to another person;

              (j)  "tobacco" means tobacco in any form in which tobacco is consumed and includes an accessory as defined in paragraph (a);

             (k)  "vapour products" means

                      (i)  an e-cigarette,

                     (ii)  an e-substance, or

                    (iii)  a cartridge for or component of an e-cigarette;

              (l)  "water pipe" means any ignited or heated smoking equipment used to burn tobacco or non-tobacco substances or a combination of tobacco and non-tobacco substances and draw the resulting smoke through a liquid before it is inhaled; and

           (m)  "wholesaler" means a person who buys tobacco, vapour products or non-tobacco shisha for resale to a person other than a consumer.

 

        8. Section 2.1 of the Act is repealed.

 

        9. Subsection 3(2) of the Act is repealed and the following substituted:

             (2)  An inspector may, at all reasonable times, with or without the help of other persons, enter upon the business premises of a retailer or wholesaler or upon the premises where the retailer's or wholesaler’s tobacco, vapour products, non-tobacco shisha or records are kept so long as it is reasonably necessary to determine compliance with this Act and may

             (a)  enter and inspect the business premises of a retailer or wholesaler and examine and take copies of those records that may be relevant to the enforcement of this Act or to a prosecution of a violation of this Act;

             (b)  investigate a complaint of a violation of this Act and question a retailer or wholesaler or employee of a retailer or wholesaler to determine whether a violation has occurred;

             (c)  make test purchases or take samples of tobacco, vapour products or non-tobacco shisha;

             (d)  give directions to a retailer or wholesaler;

             (e)  commence proceedings, which may be in the form of a ticket issued under the Provincial Offences Act, in respect of a violation of this Act;

             (f)  record and report convictions under this Act; and

             (g)  ask a person who is on the premises for proof of the person's age and make other inquiries of the person.

 

      10. The Act is amended by adding immediately after section 3.3 the following:

Flavoured tobacco

      3.4 A retailer or other person shall not offer for sale, sell, give or furnish, directly or indirectly, flavoured tobacco.

 

      11. Subsection 4(1) of the Act is repealed and the following substituted:

Offence

        4. (1) It is an offence for a retailer or other person to sell, give or furnish, directly or indirectly, tobacco, vapour products or non-tobacco shisha to a minor.

 

      12. Subsection 4.1(1) of the Act is repealed and the following substituted:

Sales prohibited in certain places

      4.1 (1) A person shall not sell, or offer for sale, tobacco, vapour products or non-tobacco shisha in

             (a)  a pharmacy;

             (b)  a temporary facility;

             (c)  a facility operated by a regional health authority established under paragraph 6(1)(b) of the Regional Health Authorities Act;

             (d)  a personal care home as defined in the Personal Care Home Regulations;

             (e)  a long term care home;

             (f)  a nursing home;

             (g)  an assisted living facility;

             (h)  a child care service operated under the Child Care Services Act;

              (i)  a school as defined in the Schools Act, 1997;

              (j)  a university as defined in the Memorial University Act;

             (k)  a college as defined in the College Act, 1996;

              (l)  a private training institution as defined in the Private Training Institutions Act;

           (m)  a building, or that part of a building that is owned, leased or operated by, the Government of Newfoundland and Labrador, an agency of the Government of Newfoundland and Labrador, a Crown corporation or a municipality;

             (n)  a recreational facility where the primary activity is physical recreation, including

                      (i)  a bowling alley,

                     (ii)  a fitness centre,

                    (iii)  a gymnasium,

                    (iv)  a swimming pool, and

                     (v)  an arena or rink;

             (o)  a theatre or cinema;

             (p)  a library;

             (q)  an art gallery;

              (r)  a museum;

             (s)  an amusement park;

              (t)  a video or games arcade; and

             (u)  a place prescribed by regulation.

 

      13. Sections 4.2 to 4.6 of the Act are repealed and the following substituted:

No display

      4.2 (1) In this section, "tobacco", "vapour products" and "non-tobacco shisha" include the package in which the tobacco, vapour products or non-tobacco shisha are sold.

             (2)  A person shall not display or permit the display of tobacco, vapour products or non-tobacco shisha in a place or premises in which tobacco, vapour products or non-tobacco shisha are sold or offered for sale

             (a)  by a means or in a manner, including the use of a countertop or wall display, that permits a customer in the place or premises to view tobacco, vapour products or non-tobacco shisha before purchasing it; or

             (b)  by a means or in a manner that makes tobacco, vapour products or non-tobacco shisha visible to the public from the outside of the place or premises.

             (3)  Notwithstanding subsection (2), it is not an offence for a customer to view tobacco, vapour products or non-tobacco shisha

             (a)  during the restocking of tobacco, vapour products or non-tobacco shisha;

             (b)  while a retailer is doing an inventory; or

             (c)  when a retailer is receiving delivery of tobacco, vapour products or non-tobacco shisha or unpacking tobacco, vapour products or non-tobacco shisha.

No advertising or promotional material

      4.3 A person shall not advertise or promote the sale or use of tobacco, vapour products or non-tobacco shisha in a place or premises in which tobacco, vapour products or non-tobacco shisha are sold or offered for sale on the exterior of the place or premises or anywhere within the boundaries of the place or premises.

Vending machine

      4.4 (1) Sections 4.2 and 4.3 do not apply to a cigarette or vapour products vending machine.

             (2)  A person shall not sell or furnish or permit the selling or furnishing of vapour products by means of a vending machine except where the vending machine is in

             (a)  a place to which the public does not reasonably have access; or

             (b)  a premises licensed under the Liquor Control Act that prohibits minors.

Permitted display

      4.5 Notwithstanding section 4.3, a person may in a place or premises in which tobacco, vapour products or non-tobacco shisha are sold or offered for sale

             (a)  display or make available for viewing upon request, a sign that lists the types of tobacco, vapour products or non-tobacco shisha for sale and their prices, if the sign complies with and is displayed in the manner, place, form and size prescribed by the regulations;

             (b)  display signs supplied by the minister; or

             (c)  display a magazine or other publication that is offered for sale and that contains tobacco, vapour products or non-tobacco shisha advertising if the magazine or publication

                      (i)  is displayed in such a way that the tobacco, vapour products or non-tobacco shisha advertisement is not visible to a customer unless he or she is reading the magazine or publication, and

                     (ii)  meets the requirements set out in the Tobacco Act (Canada) or the regulations made under that Act.

Tobacconist shop and vapour products shop

      4.6 (1) In this section

             (a)  "tobacconist shop" means a place or premises in which the only business conducted is the sale of tobacco; and

             (b)  "vapour products shop" means a place or premises in which the only business conducted is the sale of vapour products.

             (2)  Sections 4.2 and 4.3 do not apply to a tobacconist shop or a vapour products shop.

             (3)  A tobacconist shop and a vapour products shop may display its name outside the shop but advertisements, promotional material or products shall not be

             (a)  visible from the outside of the shop; or

             (b)  located on the exterior of the shop.

             (4)  The owner or person in charge of a tobacconist shop or a vapour products shop shall not permit a minor to enter the premises unless accompanied by an adult.

 

      14. Subsection 5(2) of the Act is repealed and the following substituted:

             (2)  Where the minister directs that signs be posted or displayed at public entrances, on the front of cigarette or vapour products vending machines and elsewhere, those signs shall be visible, unobstructed from view and in a form approved by the minister.

 

      15. (1) Subsection 7(1) of the Act is repealed and the following substituted:

Penalty

        7. (1) Notwithstanding the Provincial Offences Act, a retailer guilty of an offence under this Act is liable on summary conviction

             (a)  for a 1st offence, to a fine of $500 and is prohibited from selling the product to which the offence relates for 3 months;

             (b)  for a 2nd offence, to a fine of $2,500 and is prohibited from selling the product to which the offence relates for 6 months;

             (c)  for a 3rd offence and for each subsequent offence, to a fine of $5,000 and is prohibited from selling the product to which the offence relates for 9 months; and

             (d)  to a fine of $500 for selling the product to which the offence relates while prohibited from doing so under paragraph (a), (b) or (c).

             (2)  Subsections 7(4) and 7(5) of the Act are repealed and the following substituted:

             (4)  The Minister of Justice and Public Safety or a person authorized by that minister may, either before or after the institution of proceedings against a person for a violation of this Act, accept from the person alleged to have been guilty of the violation payment of the fine for that violation.

             (5)  Where a person pays a fine under subsection (4) that person shall also be prohibited from selling the product to which the offence relates for the period of time specified under subsection (1).

 

      16. Section 9 of the Act is repealed and the following substituted:

Removal of product

        9. (1) Where a retailer is prohibited from selling tobacco under section 3.1, 3.2 or 7, the retailer shall arrange for the removal of all tobacco from his or her business premises until the suspension is over.

             (2)  Where a retailer is prohibited from selling vapour products under section 7, the retailer shall arrange for the removal of all vapour products from his or her business premises until the suspension is over.

             (3)  Where a retailer is prohibited from selling non-tobacco shisha under section 7, the retailer shall arrange for the removal of all non-tobacco shisha from his or her business premises until the suspension is over.

 

      17. (1) Paragraphs 10(a.1) and (a.2) of the Act are repealed and the following substituted:

         (a.1)  respecting the manner, location, form, size and content of signs permitted in or on a place or premises in which tobacco, vapour products or non-tobacco shisha are sold or offered for sale;

         (a.2)  respecting places where the sale of tobacco, vapour products or non-tobacco shisha are prohibited;

         (a.3)  prescribing a product or device for the purpose of the definition of e-cigarette;

         (a.4)  prescribing types of tobacco as flavoured tobacco for the purpose of the definition of flavoured tobacco;

         (a.5)  exempting types and flavours of tobacco from the definition of flavoured tobacco;

             (2)  Section 10 of the Act is amended by adding immediately after paragraph (c) the following:

          (c.1)  respecting the notification of a wholesaler by the minister that a retailer is prohibited under section 7 from selling vapour products or non-tobacco shisha;

NLR 1/02 Amdt.

      18. Subsection 30(3) of the Lottery Licensing Regulations published under the Criminal Code is repealed and the following substituted:

             (3)  It is an offence under the Tobacco and Vapour Products Control Act to give tobacco, vapour products and non-tobacco shisha as a prize to a person under the age of 19 years.

NLR 78/99 Amdt.

      19. Paragraph 2(i) of the Provincial Offences Ticket Regulations, 1999 published under the Provincial Offences Act is repealed and the following substituted:

              (i)  a provision of the Tobacco and Vapour Products Control Act or a regulation made under that Act;

Commencement

      20. Sections 10, 12 and 13 of this Act come into force on July 1, 2017.