Key Benefits:
Paris, 3 August 2011.
The Minister of Labour, Employment and Health, the Minister of the Interior, Overseas, Territorial Communities and Immigration, and the Secretary of State to the Minister of Labour, Employment and Health, responsible for health, to the local prefects of the region, ladies and gentlemen of the department prefects, ladies and gentlemen of the directors general of the regional health agencies
Mandate:
― Act No. 2009-879 of 21 July 2009 reforming the hospital and relating to patients, health and territories (HPST), articles 94 (IV and V), 98, 99 and 100;
― Decree No. 2009-1764 of 30 December 2009 relating to the composition of flavoured cigarettes whose sale, distribution or offer for free is prohibited;
― Decree No. 2010-545 of 25 May 2010 the penalties for the sale and supply of tobacco products;
― dated May 28, 2010 fixing the poster model provided by theArticle D. 3511-15 of the Public Health Code ;
- Circular of January 22, 2009 on the transfer of beverage flows to be consumed on site and the protected areas taken for the application of the provisions of Act No. 2007-1787 of 20 December 2007 on the simplification of the law.
Repeated texts:
― Article L. 3512-1-1 of the Public Health Code ;
― Circular DGS/SD 6B No. 2005-217 of 3 May 2005 on the prohibition of the sale of tobacco to minors under the age of 16.
Amended texts:
― Articles L. 3511-2, L. 3511-2-1, L. 3511-2 and L. 3512-4 of the Public Health Code ;
― Articles R. 3511-8, D. 3511-15, D. 3511-16 and R. 3512-3 of the Public Health Code ;
― Article R. 48-1 of the Code of Criminal Procedure ;
― Article 568 bis of the General Tax Code.
Validated by the National Steering Board of Regional Health Agencies on July 29, 2011 ― Visa CNP 2011-209.
Attachment:
― a summary of the tobacco measures provided by the HPST Act (Appendix).
*
*
With 60,000 deaths per year, tobacco remains the first preventable cause of death in our country. It is also the first cause of cancer and one of the main causes of cardiovascular disease. The offensive against tobacco carried out in the two strategic frameworks of the cancer plan 2003-2008 and the Public Health Policy Act of 9 August 2004 (including the strengthening of the ban on smoking in collective use), has had lasting effects, particularly on the target audiences of youth and women. However, France remains, with approximately 30% of regular smokers, far from the target of less than 20%, as defined by WHO for the Europe region.
One way to reduce the consequences of smoking is to prevent entry into the smoking of the youngest. Thus, the cancer plan 2009-2013 (measure 10.4) provides for the implementation of measures to protect minors from smoking. These were adopted in the Act No. 2009-879 of 21 July 2009 reforming the hospital and relating to patients, health and territories, says HPST.
The purpose of the present circular is to recall and clarify the main provisions of the HPST smoking law.
The commitment of all involved actors is one of the conditions for the sustainable effectiveness of their implementation.
I. - Measures
I-1. Prohibition of the sale of tobacco to minors
Youth remain a prime target for the tobacco industry, and prevention of smoking initiation is a public health priority. Many smokers become dependent on adolescence, that is, the importance of the prohibition on sale to minors. That is why section 98 of the HPST Act amended theArticle L. 3511-2-1 of the Public Health Code and noted the age of ban on the sale of tobacco products, bringing it to 18, compared to 16 before.
The raising of the age of sale of tobacco products also allows France to comply with Article 16 of the World Health Organization (WHO) Framework Convention on Tobacco Control (CCLAT), the first international health treaty ratified by France in October 2004.
It has been demonstrated that the ban on the sale of tobacco to minors leads to a decline in tobacco use, but that this decline can be multiplied by a factor ten if measures are taken for its effective implementation.
From now on, the sale or offer of tobacco products and ingredients free of charge, in tobacco debits and all public shops or places, is prohibited to minors under the age of 18.
Products affected by the prohibition of sale or offer are subject to theArticle L. 3511-1 of the Public Health Code. These are all tobacco products (cigarettes, roll tobacco, narguiled tobacco, pipe tobacco, cigars, cigarillos, etc.) but also ingredients, including sheets and filters.
In this regard, it is necessary to recall that in metropolis tobacco, especially in application of tobaccoArticle 568 of the General Tax Code, may only be sold by tobacco or buyer-reseller status holders or through resellers who are required to supply manufactured tobacco exclusively from the debiters. Respect for the prohibition of sale therefore particularly weighs on these professions.
In terms of supply, it is not only prohibited in places that usually sell tobacco, but also in all public shops or places. It is important to ensure that the prohibition of sale cannot be bypassed by the purchase of tobacco by a major for minors, to which it would then offer the products. Such a diversion of the law can be sanctioned, but it is not a matter of interfering in the private or family environment, which is not concerned with this prohibition.
In application of theArticle D. 3511-15 of the Public Health Code, a poster recalling the ban on the sale of tobacco to minors must be posted to the public in places where these products are sold. An order dated 28 May 2010 sets the poster model. This model is downloadable on the website of the Ministry of Health and Customs. It is the responsibility of the relevant dealers and dealers to print or obtain it from their usual signal suppliers.
In the event of doubt about the age of the potential buyer, the seller is entitled to refuse the sale for legitimate reasons, as provided for by theArticle L. 122-1 of the Consumer Code. It is therefore up to the customer to prove that he is entitled to be sold the product in question. For this purpose, section R. 3512-3, second paragraph provides that the person responsible for the sale of tobacco products may require the persons concerned to demonstrate their majority by the production of an identity document or any other official document with a photograph.
Official documents allowing the purchaser to establish his majority under theArticle R. 3512-3 of the Public Health Code, provided that they are equipped with a photograph, are:
- national identity card;
passport;
- high school map;
• Student card;
- driving licence;
- residence;
- identity or traffic card issued by the military authorities;
- a discount card issued by a public transport company;
professional card issued by a public authority;
- civil or military disability card;
- allowed to hunt.
You will note that this list was already included in Circular DGS/SD6B No. 2005-217 of 3 May 2005 on the prohibition of the sale of tobacco to minors under the age of 16, repealed by this circular.
Since publication Decree No. 2010-545 of 25 May 2010 in respect of the penalties for the sale and supply of tobacco products, non-compliance with the prohibition of sale or offer of tobacco to minors is punishable under theArticle R. 3512-3 of the Public Health Codea 4th class contravention, which can be packaged (registration toArticle R. 48-1 of the Code of Criminal Procedure).
However, the offence is not constituted if the offender proves to have been misled on the age of the minor (R. 3512-3, first paragraph). This precision aims to protect vendors in good faith; ensure that it is not used by some to exempt itself from their responsibility.
Finally, we draw your attention to the fact that, for the sake of coherence, the Decree No. 2010-545 amends the above-mentionedArticle R. 3511-8 of the Public Health Code. Access to spaces reserved for smokers, which may be put in place in places assigned to collective use where smoking is not permitted under section L. 3511-7 and Decree No. 2006-1386 of 15 November 2006, is now forbidden to minors.
The smoke-free and space-limiting signage for smokers in accordance with the order of December 1, 2010 repealing the decision of January 22, 2007 setting the signalling models provided by theArticle R. 3511-6 of the Public Health Code (JORF of 11 December 2010) is available on the following link: http://www.tabac.gouv.fr/rubrique-65314.php.
I-2. Prohibition of flavoured cigarettes
Field surveys have highlighted the fact that very young adolescents (13) regularly consume cigarettes with a sweet taste, of which published international studies have shown that they are clearly marketed towards a young audience. The sweetness of the taste and the style of the packets have a reassuring effect on the colleges and high school students who believe that scented cigarettes are "less dangerous than others".
Yet these cigarettes contain as much, if not more, nicotine and tar as conventional cigarettes. Sweet aromas (vanilla or chocolate) make it possible to erase the fragrantness of the first cigarettes and thus promote nicotine dependence.
However, the National Institute of Health and Medical Research (INSERM) has shown that the earlier smoking, the higher the risk of addiction.
Therefore, section 98 of the HPST Act amended section L. 3511-2 in fine of the Public Health Code, in order to prohibit the sale, distribution and free offer of cigarettes whose taste has been modified in order to particularly attract a young audience.
The Decree No. 2009-1764 of 30 December 2009 on the composition of flavoured cigarettes whose sale, distribution or offer for free is prohibited has specified the criteria for characterizing the intended products. To terms of section D. 3511-16 of the Public Health Code, the maximum content of ingredients giving a sweet or acidulated flavour to flavoured cigarettes is as follows:
Vanilline: 0.05% of the mass of tobacco;
2° Ethylvanilline: 0.05% of the mass of tobacco;
3° Edulcorant applied on the cigarette cuff: analytical detection threshold.
TheArticle L. 3512-2 of the Public Health Code provides that non-compliance with this prohibition (which focuses primarily on manufacturers and distributors) is liable to a fine of 100,000 euros. In accordance with Article L. 3512-3, legal persons may also be declared criminally responsible and incur a fine of 500,000 euros.
Based on technical analyses or the declaration of ingredients provided by manufacturers, the following references have so far been identified as not meeting the thresholds set out in section D. 3511-16: Superslim Vogue pink and orange aroma; Barclay Original taste; Pink Elephant; Black Devil Special Flavour; Black Devil Finest Flavour; DJARUM super, cherry and black.
It is up to you, as part of the infra requested information, to report the presence of these references on the market, as well as any appearance of new products that would seem to be trying to bypass or contravene the ban.
I-3. Prohibition of location
tobacco sales in protected areas
Section 99 of the HPST Act specifies the regulation of tobacco supply. It introduces a new article, L. 3511-2, in Public Health Code, which aims to prohibit the establishment of manufactured tobacco outlets in the so-called "protected" areas that currently exist for the drinks to be consumed on site.
These tobacco outlets include, in addition to tobacco debits, ordinary or special, resellers and resellers.
TheArticle L. 3335-1 of the Public Health Code provides that it is up to the prefect to take orders to determine, without prejudice to the acquired rights, the distances to which the drinks to be consumed on site cannot be established around the following buildings and establishments, whose enumeration is limited:
1° Edifices consecrated to any cult;
2° Cemeteries;
3° Health facilities, retirement homes and all public or private institutions for prevention, treatment and care involving hospitalization as well as departmental clinics;
4° Establishments of public education and private schools as well as all youth training or leisure facilities;
5° Stadiums, swimming pools, public or private sports grounds;
6° Penitentiary institutions;
7° Barracks, camps, arsenals and all buildings occupied by the personnel of the army of land, sea and air;
8° Buildings for the operation of public transport companies.
It should also be recalled that the article L. 3335-1 provides that the decrees must be taken compulsoryly in respect of the buildings mentioned in the 3° "Health establishments, retirement homes and all public or private institutions of prevention, treatment and care involving hospitalization as well as departmental clinics" and the 5° " Stadiums, swimming pools, public or private sports grounds".
The extension of this measure to the premises of sale of manufactured tobacco is likely to reduce the supply of tobacco and seems particularly relevant to educational, health or sports facilities.
This is why we ask you, in the case of a product whose sale is prohibited to minors, to ensure that the establishments are protected by order, in addition to the establishments necessarily referred to in the 3rd and 5th of Article L. 3335-1, the establishments mentioned in the 4th "Public education institutions and private schools as well as all youth training or leisure institutions".
The last paragraph of Article L. 3335-1 also reserves the right, in the municipalities where there is at most a flow of drinks to be consumed on site, to authorize, after the mayor's opinion, the installation of such a trade in a protected area, where the tourist needs or local animation justify it. This same provision is applicable by parallelism to tobacco sales.
However, we ask you to ensure that the installation of a place for the sale of manufactured tobacco close to schools and youth training or leisure facilities is not permitted under the latter paragraph.
It will be up to you, in the mode provided for in the Beverage Flows, to determine by stopping the locations of tobacco sales from certain buildings and buildings.
The applicable calculation rules are those detailed, with respect to the flow of beverages, in the Ministry of the Interior circular dated January 22, 2009 taken for the purposes of Article L. 3335-1 in its drafting from the Act No. 2007-1787 of 20 December 2007 on the simplification of the law.
The distances are calculated according to the straight line to the ground linking the nearest access to the protected establishment and the point of sale of manufactured tobacco. The measure is carried out on open traffic lanes to the public, following the axis of the latter, between and at the height of the nearest access and exit doors of the protected establishment and the point of sale of manufactured tobacco, increased measure of the distance from the right line to the ground between the gates mentioned and the axis of the traffic lane.
Orders that you will take in respect of places of sale of tobacco may either make them applicable to the scopes of protection provided for the drinks to be consumed on site, or, depending on local situations, define different scopes of protection.
It should be noted that the law clearly states that this provision applies without prejudice to acquired rights and is therefore not intended to result in the closure of existing sales sites. On the other hand, any new opening that would originate from a location (either by transfer or call for applications) or intra-communal displacement within the meaning of Decree No. 2010-720 of 28 June 2010 the exercise of the monopoly of the retail sale of manufactured tobacco should be prohibited.
I-4. Prohibition of the sale of tobacco in commercial galleries
hyper and supermarkets of overseas departments (DOM)
Article 100 of the HPST Act has come to extend, on the model of the existing metropolis, the ban on the establishment of tobacco debits in the commercial galleries of the hyper and supermarkets of overseas departments.
This extension is articulated with the concomitant establishment of a licensing system for the sale of tobacco in the DOMs, provided for by theArticle 568 bis of the General Tax Code.
A decree will specify the modalities for the implementation of Article 568 bis.
II. • Controls
For greater efficiency, prevention and awareness-raising activities deserve to be carried out in parallel with control operations, which must reconcile pedagogy and penalties for offences.
We first ask you to get closer to representative bodies at the local level to the professions most affected by the measures exhibited (bitants and tobacco dealers, beverage dealers affected by the smoking ban...) in order to explain the regulations and to insist on the need for its proper application.
After this awareness-raising phase, which has already taken place in part as part of the meetings that you had to organize in the fall of 2009, it will be up to you to design and implement a monitoring plan to ensure compliance with the provisions outlined in this circular.
We remind you that officers and judicial police officers (OPJ and APJ) are primarily competent to control the ban on smoking, under the general police authority conferred on them by the police. Code of Criminal Procedure. On the other hand, within the exclusive framework of their respective jurisdiction, the personnel referred to in the November 29, 2006 circular on the prohibition of smoking in public use places may participate in compliance with the regulations.
It is necessary to work in consultation with the prosecutors of the Republic on the guidance and results of the monitoring plans.
In particular, the control plan will allow you to ensure the application of the prohibition measures for the sale of tobacco to minors, the limitation of new places of sale of tobacco in protected areas and the prohibition of smoking in places assigned to collective use, especially with regard to the terraces.
On this last point, you will be able to refer to Circulars DGS/MC2/2007/370 of 9 October 2007 on the entry into force of the second phase of the ban on smoking in places for collective use, DGS/MC2/2008/292 of 17 September 2008 on the modalities for the application of the second phase of the ban on smoking in places for collective use and DACG 2007-2/G4 of 26 January 2007 on the political orientation of smoking
Each department prefect will take stock of the implementation of the measures of the HPST law relating to tobacco, the controls carried out and the offences observed and will send it to its regional prefect in a timely manner, so that the latter will send us within three months of the publication of this text, under the stamp of the general management of health (sub-direction of health promotion and the prevention of chronic diseases),
We ask you to take personal care of the impulse, promotion and effective implementation of these new provisions. It is up to you to coordinate closely the work of all the services involved in raising awareness and monitoring, as well as regular evaluation of the effectiveness of the measures taken.
A N N E X E
MEASURES ON THE TABAC OF THE LOI N° 2009-879 DU 21 JUILLET 2009
REFORMAL AND RELATING TO PATIENT, HEALTH AND TERRITORIES (HPST)
| Article L. 3511-2-1 CSP, amended by section 98 of the HPST Act | Prohibition of the sale of tobacco products or ingredients to minors: extension of the prohibition from 16 to 18 years | Decree No. 2010-545 of 25 May 2010 the penalties for the sale and supply of tobacco products (JORF of 27 May 2010). Order of May 28, 2010 fixing the poster model provided by theArticle D. 3511-15 of the Public Health Code (JORF of 3 June 2010). | Failure to comply with the prohibition on the sale of tobacco products or ingredients to minors is punishable by a 4th class contravention (up to €750). |
| Article L. 3511-2 of the CSP, amended by section 98 of the HPST Act | Prohibition of flavoured cigarettes Prohibition of the sale, distribution or offer free of charge of flavored cigarettes, whose content in ingredients giving a sweet or acidified flavor exceeds the thresholds set by decree. | Decree No. 2009-1764 of 30 December 2009 on the composition of flavoured cigarettes, whose sale, distribution or offer for free is prohibited (JORF of 31 December). | Failure to comply with this prohibition is punishable by a fine of € 100,000 (the maximum fine may be increased to 50% of the amount spent on the illegal operation). In addition, criminal liability of legal persons may be incurred. |
| Article L. 3511-2-2 inserted CSP by section 99 of the HPST Act | Prohibition of tobacco flow in so-called protected areas, which currently exist for beverage flows. | | |
| Article L. 568 of the General Tax Code, amended by section 100 of the HPST Act | Prohibition of the sale of tobacco in the commercial galleries of the hyper and supermarkets of overseas departments (DOM). | The conditions for the application of Article 568 bis, including the number of licences that may be created in each department and the terms and conditions of termination of activity will be defined by decree. | |
| Article L. 3512-4 of the CSP, amended by section 94 of the HPST Act | Enhancing the powers of supervisors on tobacco measures. | | |
The Minister of Labour,
employment and health,
Xavier Bertrand
The Minister of the Interior,
of the Overseas, territorial authorities
and immigration,
Claude Guéant
Secretary of State
to the Minister of Labour,
employment and health,
Health Officer
Nora Berra
