Smoke-free Environments (Controls and Enforcement) Amendment Bill

Part 2 of the Smoke-free Environments (Controls and Enforcement) Amendment Bill relates to amendments relating to offences, regulations, and purposes. Of course, we have brought in a whole range of new regulations in Part 1, and now we have the offences for breaking those regulations. Clause 12 creates an offence where a person, without reasonable excuse, allows a tobacco product, tobacco package, or tobacco carton to be visible in contravention of new section 23A on the display of tobacco products. A person who commits such an offence is liable to a fine not exceeding $10,000.

The Health Committee heard a range of submissions about where submitters thought the fine level should be at. Obviously, some people thought it should be very low and others thought it should be extremely high. The select committee went for something that was at the higher end, and I think that is an important move to show just how seriously breaches of the tobacco display ban will be taken. The incentive is certainly there for retailers to ensure that they get it right, that they make sure they do not breach the ban, and that nobody who goes into a store will see any tobacco products on display. I think it would be pretty easy to find out whether someone has breached that ban. The penalties are, to say the least, quite significant—certainly, for a small-business person. I imagine that $10,000 would be a very significant penalty for someone who owned a dairy. So that is quite clear. Hopefully, nobody will be tempted to breach the ban, given that the penalties are so severe.

Many submitters supported increasing the maximum fine for a sale to someone under the age of 18 from $2,000 to $10,000. Again, that is understandable, because there is nothing worse, really, than a retailer selling tobacco products or cigarettes to someone who is under the age of 18. We know that young people from the age of 9 through to 18 are at their most vulnerable, and that is when, to be honest, most people take up the smoking habit. Many submitters were very, very keen that we take a much, much stronger stance on people who supply tobacco products to people who are under age.

Several of the tobacco industry and retailer groupings suggested that it was wrong to focus on increasing penalties when what was required was better retailer education, compliance visits, and enforcement of the current law. Well, that is always the bastion of those who are opposed to regulation. They always say that education is the answer. I agree that retailers do need to be educated about what the new law will say and what the new penalties will be, but that education has to go hand in hand with a real incentive to stop retailers from being tempted to breach the new regulations that this bill brings in. Clearly, the select committee did not agree with the tobacco industry on much, to be fair, including the suggestion that there was no need to increase fines or to bring in a large fine for people who break the display ban.

The Ministry of Health’s advice was to establish two different penalties for sales to under-18s: a fine not exceeding $10,000 in the case of a seller who is a body corporate, and a fine not exceeding $5,000 for a seller who is not a body corporate. The Ministry of Justice advised that it may be more appropriate to have a lower penalty for a person who is not a body corporate. I suppose that is understandable if one is a sole operator; perhaps one does not have the means to address such a large fine. Some comparisons were made. In the Alcohol Reform Bill the penalty for sale of alcohol to a minor by a person who is not a licensee or a manager is a fine not exceeding $2,000, and for a licensee or a manager the fine must not exceed $10,000. So there is a lower fine for someone who is not the owner of the business but is simply working in the business.

I am pleased to speak on Part 2 of the Smoke-free Environments (Controls and Enforcement) Amendment Bill. Part 2 refers to penalties, regulations, and the infringement notice scheme.

The Health Committee made a number of amendments to the penalties regime. They include raising the maximum fine, which is quite significant, and there are details about an expanded infringement notice scheme. The interesting thing is that currently if cigarettes or tobacco are sold to a minor the fine is about $2,000, but the reality was quite revealing. The average fine was usually about only $300, which is really quite a small amount when one considers what had happened.

As the previous speaker Iain Lees-Galloway mentioned, we had a number of submissions on the range of where we should pitch the fine. We settled on a fairly high amount. It is quite a significant fine. The fine, we decided, should be up to $5,000 for an employee, while a body corporate would be fined up to $10,000. These are not insignificant amounts of money. I think they send a very strong message to people who think they might want to sell to a minor that that will cost them—and cost them dearly—in the pocket. There is also an amended infringement notice scheme. If there is a failure to display health warnings at the point of sale or one sells over the internet without the appropriate warnings or information about the purchase age, an infringement notice will be given. There are also regulation-making powers provided so that regulations can be made from time to time, as seen fit, on the display of notices and about health information.

In the debate on Part 1 I mentioned that prisons have gone smoke-free. Today is day 13 and it has gone very well. I also spoke about the fact that the increase in tobacco excise had made a huge difference in the number of people accessing Quitline and taking nicotine-replacement therapies. That is making a huge improvement.

It is important to have a strong and robust penalty scheme. There is no point in having a law that says that one cannot sell to minors but not follow that up with a fairly strong message. Part 2 certainly provides a very strong message. I commend this bill to the Committee.

Thank you very much, Mr Chair, for giving me the opportunity to speak to Part 2 of the Smoke-free Environments (Controls and Enforcement) Amendment Bill. It is nice to have the lights back on, and to have a chance to talk in this debate. It is nice to have the lights back on! As I was having a Twitter debate with Tau Henare after the lights went off, I will take this chance to touch on a couple of notes from his history lesson earlier—and it is good to see the Minister of Health, the Hon Tony Ryall, in the Chamber right now. Tau Henare might want to add just one aspect into his history lesson: about 2½ years ago the Minister of Health said there was no evidence to support the removal of tobacco advertising from our displays. I tell Mr Henare that he should add that one to his history lesson. I also received a letter from Imperial Tobacco; this is one instance where I will agree with Tau Henare. The fact that the company had the nerve to send us a letter that asked for its company to have more input—because it had the resources—with the Ministry of Health in order to discuss issues about tobacco laws, is a bit on the nose. If the company is going to be so open, let it open up everything it has on the research it has done into tobacco.

Part 2 sets out amendments relating to offences and regulations further to Part 1. It sets out the penalties that are available to authorities if people are seen to be in breach of the new display regulations. I think it is good that this bill has teeth. There is a $10,000 fine for anyone who is caught transgressing these measures. As a number of members have said, there were a number of submissions on what the appropriate level of fines should be for both front-line staff and proprietors. I thank the officials for the work on that, because we traversed a number of difficult issues. Getting the appropriate level of penalties and fines right in relation to this bill was difficult, because we had a number of different submissions. So I thank the officials for that.

Section 36(1A), amended in clause 12, sets up a $10,000 fine for anyone who has transgressed in relation to display. But I will concentrate on new section 36(3A), inserted by clause 12, which states: “Every manufacturer, importer, distributor, or retailer of tobacco products who, in contravention of section 25A(1), sponsors … any organised activity, commits an offence and is liable,—(a) in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $50,000; or (b) in any other case, to a fine not exceeding $10,000.” This relates back to clauses 4(cb) and 4(cc) of Part 1.

We should take notice of that because we should not underestimate just how sneaky the tobacco industry has been in relation to some of the ways it has tried to market without bending the rules. Tobacco companies have been very creative about how they promote themselves at various activities. They have entered into exclusive-sale arrangements with people who are holding activities and also into exclusive promotional rights. Although they do not explicitly say how they are pushing their products—and they cannot say because it has been illegal—they have been very particular about making sure they push their brand’s colours and their tobacco brands in that way. As a non-smoker I have been oblivious to these kinds of things, but I know that it is amazing what lengths tobacco companies will go to, in order to take promotion absolutely to the wire. As they sign up for these exclusive sole arrangements and covert sponsorship deals using brand colours, I think this law will tighten that up, and it will also put in a pretty hefty penalty of $10,000 or $50,000, as I mentioned earlier, to make sure this kind of thing is cracked down on.

As we sit here today, and all support these changes, I think we should also send a message to the tobacco companies that we will continue to be vigilant, because as we change the rules here today, they will be looking for ways to manipulate the new laws we are bringing in to make sure they can push their products, and to make use of their vast resources to jump through loopholes. I am sure that the Minister in charge of this bill will be very aware of that, and that all members of the House will be vigilant on that note. Part 2, as I said, sets up the penalties, and I think it is great that it has teeth.

I too want to reiterate what the member who has just resumed his seat, Kris Faafoi, said about the issue of having a reasonable fine. It is not a slap on the hand with a wet bus ticket; it is a reasonable, hefty fine. I think it is about time that we had a reasonably hefty fine for those who transgress, and even more so in the case of the tobacco industry. Let me put that in context. This debate is not about just some normal business in New Zealand paying its taxes and going about its job. This debate is about the tobacco industry, which has for years and years found ways of sliding and sliming, like a little old snake, out of its responsibilities.

Just over 12 months ago, I had a heart attack. I can guarantee that that was because of my own stupidity—I smoked. But I also put some responsibility on the tobacco industry for peddling that sort of nasty product. Until the 1950s and 1960s, we did not know much about the effects and the causes of smoking, but in the past 30 or 40 years we have obtained enough scientific evidence to warrant imposing a $10,000 fine, and a $50,000 fine, on those who transgress the regulations that we have before us. That provision shows the feelings that members of the House of Representatives have about this issue. It is not a party political stance; it is actually a House of Representatives stance. We all agree on imposing a hefty $10,000 fine on those who display the nasty products.

I will take a minute—if I have one—to say that a whole lot of us used to say that smoking was not bad for people, until an event happened. So I think it is a bit unfair for the member for Mana to have a go at the Minister of Health about what he said. Until 12 months ago—and I was a chairperson of an inquiry into tobacco—I was still a smoker. I refused point-blank to hear what was going on until I picked myself up off the floor, and on the day after my heart attack, when somebody asked what we should do, I replied: “I’m buggered if I’m going outside for a smoke.”, and that was it.

It is unfortunate that that event, horrific as it was, was the thing that made me stop smoking. I am not a zealot by any stretch of the imagination, but the time has come. The time has come for the tobacco industry to start seriously thinking that its business is about to close, and most New Zealanders, even those who smoke, would agree with that. It is not about having a go at legitimate business; it is about the safety of the next generation. Kia ora.

I wanted to speak on Part 1 of the Smoke-free Environments (Controls and Enforcement) Amendment Bill, but I will have a crack at weaving in something on Part 2. And I wanted to congratulate the Minister in charge of the bill, Tariana Turia. I heard little snippets when I was not here about the journey. We would not be at the stage Tau Henare acknowledged today when he said that the door was closing on an amazing chapter, if Labour had not opened the book and started it in the first place. I acknowledge Tukoroirangi Morgan and also Judy Keall, who later picked up the original bill. I was given sponsorship of the bill because I was a midwife, and it looked a good fit with a health professional to then sponsor that next leg of the journey, but I could not have done it without the leadership of Helen Clark. It was Helen Clark who was brave, and I remember—

💬 Hon Rodney Hide: She was great. Bring her back.

I must tell Mr Hide that in this Chamber, when I sat for hours and hours in the chair for the Smoke-free Environments Amendment Bill, it was he who said one day that I was a hairy-legged feminist from Helengrad, which was hardly the case for a dear old midwife and granny supporting smoke-free legislation. I took it; I took lots of offensive remarks, because I knew it was the right thing to do. I just smiled at Mr Hide and let him blither on, because we were on a journey. We knew we were doing the right thing in our chapter—

💬 Dr Paul Hutchison: I raise a point of order, Mr Chairperson. However interesting this may be, we are on Part 2, “Amendments relating to offences, regulations, and purposes”.

I am about to get there.

The CHAIRPERSON (Lindsay Tisch): I know the member is, and we had a slight diversion.

A slight tolerance there, but I was also going to acknowledge that Tony Ryall now supported Tariana Turia. I think that is the growing awareness, and I do not think Dr Hutchison will call a point of order when I say something nice like that. In fact, Dr Hutchison was the only National member in the House who voted for the smoke-free environments amendment legislation, and I congratulate him—

💬 Dr Paul Hutchison: And Lynda Scott.

And Dr Lynda Scott, that is right. We never forget that—doctors, health professionals, and health practitioners.

Public health—and this is about Part 2; Mr Chairman, you will be pleased—is not just about penalties, offences, infringement notices, and regulations. Public health is also about education and bringing society along with us on this journey of change. Part 2 is about excise tax, and then there is this little bit at the end of it about offences. I do not think we want to get too hung up on the offence provision at all. This is a small part, but we cannot bring any public health change into effect without having that carrot-and-stick approach. I think the Health Committee has done a great job and has the level of offences about right. There is now a $10,000 fine, which is an increase from $2,000. People laughed at a $2,000 fine in the past and I think it is about right to put it up to $10,000. In our pursuit of this legislation, we have seen tobacco sold to young people who then leave the shop to onsell it outside. They break down a packet of cigarettes and sell those cigarettes individually for quite some profit. I do not think penalties are always the answer to reducing smoking over time, but they give a societal sanction that if a person breaches the provisions in this legislation and gets caught, that person will be fined.

I will mention clause 14, which the Committee quite rightly recommended should be amended to give effect to the proposal to remove the specific requirement for the Minister of Health to consult with tobacco retailers, manufacturers, importers, or wholesalers. I think the provision that forced the Minister to consult with the industry was outrageous. In this case, the industry is peddling something that harms society on a very high scale of harm. I think this amendment will better align with article 5.3 of the World Health Organization’s Framework Convention on Tobacco Control, which is about the protection of tobacco policy. I think these provisions are right. We will be back in this House in about 5 years’ time, looking at the next stage of legislation we bring in. I was sorry that certain things were not brought forward in this bill: plain packaging, banning vending machines, and other little bits and pieces. In about 5 years’ time we will be back in the House and another Minister will be promoting that next leg of the journey. But I think the regulations in Part 2 are fitting.

I will take a very short call on Part 2 of the Smoke-free Environments (Controls and Enforcement) Amendment Bill, “Amendments relating to offences, regulations, and purposes”, to reiterate the fact that there is consensus that the penalties relating to not obeying the law are certainly pretty stiff. One fine will go up to $50,000, and that should, hopefully, send a very clear message to tobacco manufacturers, although they are a very, very powerful lot and have millions of dollars at their disposal. I am sure the consensus in this Committee is that, if need be, we would raise the penalties if manufacturers did not respond, because this Committee is incredibly serious in terms of its messages. I think that is one of the great things about the consensus that we have had in the Committee.

I will make one point about what the effective measures have been for decreasing smoking. One of them, certainly—believe it or not—has been raising tax. Under the 9 years of the Labour Government I think there was only a 10 percent tax rise. Under the National Government and the leadership of Tony Ryall there has been a 30 percent tax increase over a series of years, and, undoubtedly, might I say—

💬 Hon Dr Nick Smith: She bullied us.

She bullied them. Ha, ha! As I said before, everybody extends their huge congratulations to the Hon Tariana Turia on the persistence and wonderful leadership she has shown in this respect.

I will make one other point, and it relates to herbal smoking products. Kevin Hague, who has left the Chamber, brought the matter up earlier. Under the Smoke-free Environments Act it is an offence to sell herbal smoking products to a person younger than 18 years old, and this was pointed out in the commentary on the bill. Section 39(1)(e) of the Act confers the power to make regulations to require that health warnings be displayed on herbal smoking products, but no such regulations have been made. This bill ensures that all the health warnings and offences are now applied to those products. I think that is yet another step forward in the progress that we are making in our aspiration to have a smoke-free Aotearoa.

Part 2 agreed to.

Clauses 1 to 3