Tobacco (Advertising and Sponsorship)

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2006-22

TOBACCO (ADVERTISING AND SPONSORSHIP) ACT 2006

Principal Act Act. No. 2006-22 Commencement (LN. 2007/030) 1.6.2007 Assent 18.7.2006

Amending enactments

Relevant current provisions

Commencement date

None English sources: None cited EU Legislation/International Agreements involved: Directive 2003/33/EC

Tobacco (Advertising and Sponsorship)

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2006-22

ARRANGEMENT OF SECTIONS

Section 1. Title and commencement. 2. Interpretation. 3. Application. 4. Advertising in the printed media and information society services. 5. Radio advertising and sponsorship. 6. Sponsorship of events. 7. Other advertisements. 8. Enforcement. 9. Penalties. 10. Corporate responsibility. 11. Regulations.

SCHEDULE INDICATIVE LIST OF SERVICES NOT COVERED BY THE DEFINITION OF “INFORMATION SOCIETY SERVICES”

Tobacco (Advertising and Sponsorship)

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2006-22

AN ACT TO TRANSPOSE INTO THE LAW OF GIBRALTAR COUNCIL DIRECTIVE 2003/33/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 26 MAY 2003 ON THE APPROXIMATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS OF THE MEMBER STATES RELATING TO THE ADVERTISING AND SPONSORSHIP OF TOBACCO PRODUCTS. Title and commencement. 1. This Act may be cited as the Tobacco (Advertising and Sponsorship) Act 2006 and comes into operation on the day the Minister appoints by notice in the Gazette. Interpretation. 2.(1) In this Act and unless the context otherwise requires–

“advertising” means any form of commercial communications with the aim or direct or indirect effect of promoting a tobacco product;

“competent authority” means such person or persons as the Minister may

designate by notice in the Gazette; “Directive” means Directive 2003/33/EC of the European Parliament and

of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products;

“information society services” means, subject to the Schedule, any

service normally provided for remuneration, at a distance, by electronic means for the transmission of data and at the individual request of a recipient of services;

“Minister” means the Minister with responsibility for trade; “sponsorship” means any form of public or private contribution to any

event, activity or individual with the aim or direct or indirect effect of promoting a tobacco product;

“tobacco products” means all products intended to be smoked, sniffed,

sucked or chewed inasmuch as they are made, even partly, of tobacco.

(2) For the purposes of the definition of “information society services” in subsection (1) above−

Tobacco (Advertising and Sponsorship)

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2006-22

“at a distance” means that the service is provided without the parties

being simultaneously present, “by electronic means” means that the service is sent initially and

received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.

(3) Terms used in this Act but not defined shall be construed in accordance with the Directive. Application. 3.(1) This Act applies to the advertising of tobacco products and their promotion in the following media−

(a) in the press and other printed publications; (b) in radio broadcasting; (c) in information society services; (d) through tobacco related sponsorship, including the free

distribution of tobacco products; and (e) other forms of advertisements.

(2) Nothing in this Act shall prejudice the application of the Electronic Commerce Act 2001 in relation to the advertising of tobacco through information society services.

Advertising in the printed media and information society services. 4.(1) It shall be an offence–

(a) for any person to publish, print, distribute, procure, offer for sale, or otherwise make available any advertisement; or

(b) for any information society services other than ones to which

subsection (2) applies, to advertise tobacco products. (2) This subsection applies to−

Tobacco (Advertising and Sponsorship)

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2006-22

(a) printed publications and information society services intended exclusively for professionals in the tobacco trade; and

(b) publications which are printed and published, and information

society services originating, in third countries and not principally intended for the Community market.

Radio advertising and sponsorship. 5.(1) It shall be an offence for any radio broadcaster in Gibraltar to advertise tobacco products. (2) It shall be an offence for any radio broadcaster to accept sponsorship of its radio programmes by undertakings whose principal activity is the manufacture or sale of tobacco products. Sponsorship of events. 6. It shall be an offence for the organiser of an event or activity−

(a) taking place in Gibraltar; or (b) involving Gibraltar and another Member State; or (c) having cross-border effects at that event or activity−

(i) to accept sponsorship from undertakings whose principal activity is the manufacture or sale of tobacco products;

(ii) to distribute or consent to the distribution of tobacco

products free of charge with the purpose of promoting such products, whether directly or indirectly.

Other advertisements. 7. It shall be an offence for any person to place any other form of advertisement in any public place, or in any place visible from any public place, or in any club or commercial premises whatsoever in order to advertise tobacco products. Enforcement. 8.(1) Persons or groups of persons may apply to the Minister for designation under this section. (2) The Minister shall designate by notice in the Gazette, such persons or groups of persons who apply to him for designation pursuant to subsection

Tobacco (Advertising and Sponsorship)

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2006-22

(1) and who, in his opinion, have a legitimate interest in the suppression of advertising, sponsorship or other matters contrary to this Act. (3) Persons or groups of persons designated by the Minister under the provisions of this section (hereinafter the “designated person”), may–

(a) consider any complaint that any act or omission is contrary to the provisions of this Act; or

(b) bring the complaint to the attention of the competent authority.

(4) If–

(a) where subsection (3)(a) above applies the designated person; or (b) where subsection (3)(b) applies, the competent authority,

considers that any act or omission is contrary to the provisions of this Act, the designated person or competent authority as the case may be, if appropriate to do so, may bring proceedings for an injunction (including an interlocutory injunction) or such other relief as may be appropriate in the circumstances against any person appearing to be responsible for the act or omission. (5) The Supreme Court on an application pursuant to subsection (4) may grant an injunction or other relief on such terms as it thinks fit. (6) Nothing in this section shall prejudice the right of the competent authority or the Attorney General to bring proceedings of a civil or criminal nature, pursuant to the provisions of this Act. Penalties. 9. A person found guilty of an offence contrary to sections 4, 5, 6 or 7 shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. Corporate responsibility. 10. Where an offence under this Act has been committed by a legal person and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person, being a director, manager, secretary or other officer of that body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of that offence and be liable to be proceeded against and punished accordingly. Regulations.

Tobacco (Advertising and Sponsorship)

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2006-22

11.(1) Subject to the provisions of the Directive, the Minister may make regulations providing for such exemptions from the provisions of this Act as he may deem appropriate. (2) Regulations made under this section may make provision for such offences as the Minister may deem appropriate.

Tobacco (Advertising and Sponsorship)

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2006-22

SCHEDULE

Section 2

INDICATIVE LIST OF SERVICES NOT COVERED BY THE DEFINITION OF “INFORMATION SOCIETY SERVICES”

The following is an indicative list of services not covered by the definition of “information society services”. 1. Services not provided “at a distance”. Services provided in the physical presence of the provider and the recipient, even if they involve the use of electronic devices−

(a) medical examinations or treatment at a doctor's surgery using

electronic equipment where the patient is physically present; (b) consultation of an electronic catalogue in a shop with the

customer on site; (c) plane ticket reservation at a travel agency in the physical

presence of the customer by means of a network of computers; (d) electronic games made available in a video-arcade where the

customer is physically present. 2. Services not provided “by electronic means”. Services having material content even though provided via electronic devices−

(a) automatic cash or ticket dispensing machines (banknotes, rail tickets);

(b) access to road networks, car parks, etc., charging for use, even

if there are electronic devices at the entrance/exit controlling access and/or ensuring correct payment is made,

Off-line services: distribution of CD roms or software on diskettes, Services which are not provided via electronic processing/inventory systems−

(a) voice telephony services; (b) telefax/telex services; (c) services provided via voice telephony or fax;

Tobacco (Advertising and Sponsorship)

© Government of Gibraltar (www.gibraltarlaws.gov.gi)

2006-22

(d) telephone/telefax consultation of a doctor; (e) telephone/telefax consultation of a lawyer; (f) telephone/telefax direct marketing.

3. Services not supplied “at the individual request of a recipient of services”. Services provided by transmitting data without individual demand for simultaneous reception by an unlimited number of individual receivers (point to multipoint transmission)−

(a) television broadcasting services (including near-video on-

demand services), covered by point (a) of Article 1 of Directive 89/552/EEC;

(b) radio broadcasting services; (c) (televised) teletext.