Tobacco Products (Public Health) Amendment Act 2005
TOBACCO PRODUCTS (PUBLIC HEALTH) AMENDMENT ACT
2005





BERMUDA

2005 : 33

TOBACCO PRODUCTS (PUBLIC HEALTH) AMENDMENT ACT
2005

Date of Assent: 29 December 2005
Operative Dates: sections 2, 4D, 4E, 5(8) and (9) 6 January 2006

All other sections 1 April 2006


ARRANGEMENT OF SECTIONS

1 Short title
2 Interpretation
3 Amends section 2
4 Amends heading to Part II
5 Inserts sections 4A to 4E
6 Amends section 5

7 Amends heading to Part
III

8 Inserts sections 9A to 9C
9 Amends section 10
10 Transitional provision
11 Commencement




WHEREAS it is expedient to amend the Tobacco Products (Public
Health) Act 1987 and to make provisions for ensuring compliance with
the Framework Convention on Tobacco Control (FCTC) in Bermuda:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title
1 This Act may be cited as the Tobacco Products (Public Health)
Amendment Act 2005.


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2005


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Interpretation
2 In this Act the “principal Act” means the Tobacco Products
(Public Health) Act 1987.

Amends section 2
3 Section 2 of the the principal Act is amended by inserting in the
appropriate alphabetical order the following definitions—

“employee” means, for the purposes of this Act, a person who is
employed for a remuneration under a contract of
employment, or who performs services for another person for
remuneration under certain terms and conditions;

“employer” includes, for the purposes of this Act, a proprietor,
owner, operator or manager of a business, occupation, trade,
profession, work or activity who has control or direction of, or
is directly or indirectly responsible for the employment of a
person in it;

“enclosed public place” means, for the purposes of this Act, the
inside of a place, building, structure or vehicle which is
covered by a roof and to which the public is normally invited;

“enclosed workplace” means, for the purposes of this Act, the
inside of a place, building, structure or vehicle, which is
covered by a roof, that employees work in and frequent;

“Minister” means the Minister responsible for Health;

“minor” means a person who has not attained the age of 18
years;

“prescribed’ means prescribed by regulations made under this
Act;

“tobacco” means any plant of nicotima tobaccum or nicotima
bastica, or any other plant related to nicotima tobaccum or
nicotima bastica, or any leaf or fruit of that plant;

“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;

“vending machine” means, for the purposes of this Act, a
machine which, on insertion of any coin, metal or other
material in it, dispenses tobacco or tobacco products
automatically or with the help of the buyer;

“wholesale distributor” means, for the purposes of this Act, a
wholesale distributor of tobacco or tobacco products.

TOBACCO PRODUCTS (PUBLIC HEALTH) AMENDMENT ACT
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Amends heading of Part II
4 The principal Act is amended by deleting the heading to Part II
and substituting the following—

“Sale of Cigarettes, Tobacco and Tobacco products”.

Inserts sections 4A to 4E
5 The principal Act is amended by inserting the following sections
after section 4—

“Wholesale distributors to register and submit report
4A (1) Every wholesale distributor shall apply in a prescribed
form to register with the Department of Health.

(2) A wholesale distributor registered under sub-section (1)
shall submit to the Minister an annual report in such form as
the Minister may direct under this Act.

Sale prohibited in designated places
4B (1) No person shall sell any cigarettes, tobacco or tobacco
products in a designated place.

(2) The Minister may, by Notice published in the Gazette,
determine which place is to be considered as a designated place.

(3) A designated place shall include—

(a) a hospital defined in the Mental Health Act 1968 or
the Bermuda Hospital Board Act 1970; and

(b) a residential care home registered under the
Residential Care Homes and Nursing Homes Act
1999.

Sale from vending machines prohibited
4C (1) No person shall permit a vending machine to be used in
a place he owns or occupies.

(2) Subsection (1) does not apply with respect to a vending
machine that does not contain any cigarettes, tobacco or tobacco
products.

Sale or supply to minors prohibited
4D (1) No person shall sell or supply any cigarettes, tobacco or
tobacco products to a minor.

(2) A person selling or supplying any cigarettes, tobacco or
tobacco products to a person who appears to be under 25 years
of age shall, before selling or supplying them, ensure, by

TOBACCO PRODUCTS (PUBLIC HEALTH) AMENDMENT ACT
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requiring photo identification, that the latter person is not a
minor.

Prohibition on display, handling and promotion
4E No person shall—

(a) display or permit the display of any cigarettes, tobacco
or tobacco products in a retail shop by means of a
countertop display;

(b) display or permit the display of any cigarettes, tobacco
or tobacco products in a retail shop in any manner that
allows the purchaser to handle the cigarettes, tobacco or
tobacco products before purchasing them; or

(c) employ or authorize anyone to promote tobacco or
tobacco products at any place where the public is invited
and is expected to pay in order to be entertained or to
watch a sporting event.”.

Amends section 5
6 Section 5 of the principal Act is amended—

(a) by deleting the marginal heading and substituting the
following—

“Offences and Penalties under Part II”; and

(b) by inserting the following subsections next after
subsection (3)—

“(4) Any person who contravenes any provision
under sections 4A to 4E commits an offence under this
Act.

(5) Any wholesale distributor who fails to register
under section 4A shall be liable on summary conviction
to a fine of $1000.

(6) Any person who contravenes section 4B shall be
liable on summary conviction to a fine of $1000, and in
the case of a second or subsequent conviction, to a fine
not exceeding $5000.

(7) Any person who contravenes section 4C shall be
liable on summary conviction to a fine of $1000, and in
the case of a second or subsequent conviction to a fine
not exceeding $5000.

(8) Any person who contravenes section 4D shall be
liable on summary conviction to a fine of $1000, and in

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the case of a second or subsequent conviction, to a fine
not exceeding $5000.

(9) Any person who contravenes section 4E shall be
liable on summary conviction to a fine of $1000, and in
the case of a second or subsequent conviction, to a fine
not exceeding $5000.”.

Amends heading to Part III
7 The principal Act is amended by deleting the heading to Part III
and substituting the following—

“Restrictions on Advertisement and Prohibition on Smoking”.

Inserts sections 9A to 9C
8 The principal Act is amended by inserting the following sections
after section 9—

“Prohibition on smoking in certain places
9A (1) No person shall smoke any cigarettes, tobacco or
tobacco products in an enclosed public place or an enclosed
workplace.

(2) Without prejudice to the generality of subsection (1) and
subject to subsection (3), smoking shall be prohibited in the
following places—

(a) private and public schools;

(b) “pre-schools”, and ‘day care centres’ and ‘residential
homes’ defined in the Children Act 1998;

(c) “hospitals” defined in the Mental Health Act 1968 and
the Bermuda Hospital Board Act 1970;

(d “residential care homes” registered under the Residential
Care Homes and Nursing Homes Act 1999;

(e) office buildings;

(f) vehicles owned by an employer and used by the
employees in the course of employment;

(h) “restaurants” defined in the Restaurant Act 1961

(i) “licensed premises” defined in the Liquor Licence Act
1974;

(j) “hotels” defined in the Hotels (Licensing and Control) Act
1969.

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(3) The Minister may, by regulations, make exceptions for
particular places subject to subsection (1) or (2).

(4) The negative resolution procedure shall apply to regulations
made under subsection (3).

Obligations on employers
9B (1) Every employer shall, with respect to an enclosed public
place or enclosed workplace, as the case may be—

(a) ensure, with all reasonable efforts, that the environment
of the place is smoke-free;

(b) inform, with all reasonable efforts, all the employees that
the place is smoke-free;

(c) post ‘NO-SMOKING’ signage in a conspicuous part of the
place; and

(d) take such action as he considers appropriate where any
employee does not comply with the prohibition on
smoking.

(2) No employer shall take any action against an employee for
seeking enforcement of this Act or acting in accordance with the
requirements under this Act.

Inspectors to ensure compliance
9C (1) The Minister may, with the approval of the Public Service
Commission, authorize any public officer in the Department of
Health to act as an inspector in order to ensure compliance with
this Act.

(2) An inspector authorized under subsection (1) may—

(a) enter and inspect any designated place, retail shop,
enclosed workplace or enclosed public place, including a
place referred to in section 9A(2);

(b) request any person for information relevant to the
inspection.

(3) An inspector shall, after an inspection, make a report in
writing to the Department of Health.

(4) An inspector shall not be liable for any act done or omitted
in good faith and in pursuance of this section.”.

Amends section 10
9 Section 10 of the principal Act is amended—

(a) by inserting the following marginal heading—

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“Offences and Penalties under Part III”; and

(b) by inserting the following subsections next after
subsection (2)—

“(3) Any person who contravenes any provision
under section 9A or 9B commits an offence under this
Act.

(4) Any person who contravenes section 9A shall be
liable on summary conviction to a fine of $250, and in
the case of a second or subsequent conviction, to a fine
not exceeding $1000.

(5) Any employer who contravenes section 9B shall
be liable on summary conviction to a fine of $1000.

(6) Any person who obstructs an inspector in the
performance of his duties under section 9C(2) commits
an offence and shall be liable on summary conviction to
a fine of $1000.”.

Transitional provision
10 (1) No person shall be prosecuted under section 4A, 4B, 4C or
9A for an offence committed within six months of the coming into
operation of that section.

(2) No employer shall be prosecuted under section 9B for an
offence committed within six months of the coming into operation of that
section.

Commencement
11 This Act comes into operation on such day as the Minister may
appoint by Notice published in the Gazette, and the Minister may
appoint different days for different provisions of this Act or for different
provisions enacted by a provision of this Act.