[#ps1]
(1) A person who in the course of business displays or causes to be
displayed tobacco products or smoking related products in a place where tobacco products are
offered for sale commits an offence.
[#ps2]
(2) A person does not commit an offence under subsection (1) if the display
- (a) is in a specialist tobacconist, (b) does not include cigarettes or hand-rolling
tobacco, – and (c) Complies with any prescribed requirements.
[#ps3]
(3) A person does not commit an offence under subsection (1) if (a) the
tobacco products or smoking related products are displayed in the course of a business
involving the sale of tobacco products only to persons who carry on a tobacco business (or
their employees), – and (b) the display complies with any prescribed requirements.
[#ps4]
(4) The Scottish Ministers may provide in regulations that no offence is
committed under subsection (1) in relation to a display of tobacco products or smoking
related products which complies with requirements specified in the regulations.
[#rs5]
(5) A person guilty of an offence under subsection (1) is liable on summary
conviction to a fine not exceeding level 4 on the standard scale.
[#cs6]
(6) For the purposes of subsection (1), a website is not a place.
[#cs7]
(7) In subsection (2), “specialist tobacconist” has the meaning given by
section 6(2) of the Tobacco Advertising and Promotion Act 2002 (c.36).
[#ps9]
(1) The Scottish Ministers may by regulations impose requirements in relation
to the display in the course of business of prices of tobacco products or smoking related
products in a place where tobacco products are offered for sale.
[#cs10]
(2) For the purposes of subsection (1), a website is not a place
[#ps11]
but the regulations may otherwise provide for the meaning of “place” in that
subsection.
[#ps12]
(3) A person who displays or causes to be displayed prices of tobacco
products or smoking related products in breach of a requirement contained in the regulations
commits an offence.
[#rs13]
(4) A person guilty of an offence under subsection (3) is liable on summary
conviction to a fine not exceeding level 4 on the standard scale.
[#ps14]
(5) The regulations may provide that a display of prices which also amounts
to an advertisement is to be treated for the purposes of offences under this Act and the
Tobacco Advertising and Promotion Act 2002 — (a) as an advertisement and not as a display of
prices , or (b) as a display of prices and not as an advertisement.
[#ps25]
(1) A person commits an offence if the person— (a) carries on a tobacco or
nicotine vapour product business, and (b) fails to operate an age verification policy in
respect of premises at which the person carries on the tobacco or nicotine vapour product
business.
[#ps26]
(2) Subsection (1) does not apply to premises (“the business premises”) from
which— (a) tobacco products, cigarette papers or nicotine vapour products are, in pursuance
of a sale, despatched for delivery to different premises, (b) no other tobacco or nicotine
vapour product business is carried on from the business premises.
[#cs27]
(3) An “age verification policy”is a policy that steps are to be taken to
establish the age of a person attempting to buy a tobacco product, cigarette papers or a
nicotine vapour product on the premises (the “customer”) if it appears to the person selling
the tobacco product, cigarette papers or nicotine vapour product that the customer may be under
the age of 25 (or such older age as may be specified in the policy).
[#ps28]
(4) The Scottish Ministers may by regulations amend the age specified in
subsection (3).
[#cs29]
(5) The Scottish Ministers may publish guidance on matters relating to age
verification policies, including, in particular, guidance about— (a) steps that should be
taken to establish a customer's age, (b) documents that may be shown to the person selling a
tobacco product, cigarette papers or a nicotine vapour product as evidence of a customer's
age, (c) training that should be undertaken by the person selling the tobacco product,
cigarette papers or nicotine vapour product, (d) the form and content of notices that should
be displayed in the premises, (e) the form and content of records that should be maintained
in relation to an age verification policy.
[#ps30]
(6) A person who carries on a tobacco or nicotine vapour product business
must have regard to guidance published under subsection (5) when operating an age
verification policy.
[#rs31]
(7) A person guilty of an offence under subsection (1) is liable on summary
conviction to a fine not exceeding level 2 on the standard scale.
[#ps32]
(1) A responsible person who allows a tobacco product, cigarette papers or a
nicotine vapour product to be sold by a person under the age of 18 commits an
offence.
[#cs33]
(2) For the purposes of subsection (1), “responsible person” means— (a) where
the sale is at premises which are noted in a registered person's entry in the Register, the
registered person for those premises, (b) where the sale is at premises which are not noted in
a registered person's entry in the Register— (i) any employer of the person who made the sale,
and (ii) any other person having management or control of those premises.
[#ps34]
(3) Subsection (1) does not apply to a sale which— (a) is made at premises
which are noted in a registered person's entry in the Register, and (b) is authorised by the
registered person for those premises.
[#ps35]
(4) Each authorisation mentioned in subsection (3)(b) must be recorded and
kept at the premises at which a sale by a person under the age of 18 is made.
[#ps36]
(5) The Scottish Ministers may prescribe— (a) the form and content of
authorisations made under subsection (3)(b), (b) the method of recording authorisations for
the purposes of subsection (4).
[#cs37]
(6) An authorisation is, for the purposes of subsection (3)(b), deemed not to
have been made, if— (a) it is not recorded and kept in accordance with subsection (4), or (b)
it is not made in accordance with any provision made under subsection (5).
[#rs38]
(7) A person guilty of an offence under subsection (1) is liable on summary
conviction to a fine not exceeding level 1 on the standard scale.
[#ps41]
(1) A person under the age of 18 who buys or attempts to buy a tobacco product or cigarette papers commits an offence.
[#ps42]
(2) It is not an offence under subsection (1) for a person under the age of
18 to buy or attempt to buy a tobacco product or cigarette papers if the person is authorised
to do so by a council officer or a constable for the purpose of determining whether an
offence is being committed under section 4.
[#ps43]
(3) A council officer or a constable may authorise a person under the age of
18 to buy or attempt to buy a tobacco product or cigarette papers only if satisfied that all
reasonable steps have been or will be taken to avoid any risk to the welfare of the person.
[#rs44]
(4) A person guilty of an offence under subsection (1) is liable on summary
conviction to a fine not exceeding level 1 on the standard scale.
[#ps49]
(1) Where a constable has reasonable grounds for suspecting that a person in
a public place— (a) is under the age of 18, and (b) is in possession of a tobacco product or
cigarette papers, the constable may require the person to surrender the tobacco product or,
as the case may be, the cigarette papers to the constable.
[#ps50]
(2) A constable making a requirement under subsection (1) may also require
the person to supply the constable with the person's name and address.
[#ps51]
(3) Where a constable makes a requirement under subsection (1) the constable
must inform the person concerned— (a) of the constable's suspicion, and (b) of the fact that
failure to comply with a requirement made under subsection (1) or (2) is an offence.
[#ps52]
(4) A constable may arrest without warrant any person who fails to comply
with a requirement made under subsection (1).
[#ps53]
(5) A person who fails to comply with a requirement made under subsection (1)
or (2) commits an offence.
[#rs54]
(6) A person guilty of an offence under subsection (5) is liable on summary
conviction to a fine not exceeding level 2 on the standard scale.
[#ps55]
(7) The constable may dispose of any tobacco product or cigarette papers
surrendered to the constable in such manner as the constable considers appropriate.
[#cs56]
(8) In this section “public place”includes— (a) any place to which the public
have access for the time being (whether on payment of a fee or otherwise), and (b) any place to
which the public do not have access but to which the person mentioned in subsection (1) has
unlawfully gained access.
[#ps57]
(1) A person who carries on a tobacco business must display a notice in
accordance with subsection (2) in any premises where that business is carried on.
[#ps58]
(2) The notice must— (a) contain the following statement— “It is illegal to
sell tobacco products to anyone under the age of 18”, and (b) be displayed in a prominent
position in the premises where the statement is readily visible to persons at the point of
sale of the tobacco products.
[#ps59]
(3) A person who fails, without reasonable excuse, to comply with subsection
(1) commits an offence.
[#rs60]
(4) A person guilty of an offence under subsection (3) is liable on summary
conviction to a fine not exceeding level 3 on the standard scale.
[#ps61]
(5) The Scottish Ministers may prescribe the dimensions of the notice to be
displayed in accordance with this section and the size of the statement to be displayed on
it.
[#ps67]
(1) A person may apply to the Scottish Ministers— (a) to be registered, or
(b) to add further premises to the person's entry in the Register.
[#ps68]
(2) The application must— (a) state the name and address of the applicant,
(b) where it is an application under subsection (1)(a), state the addresses of all premises
at which the applicant proposes to carry on a tobacco or nicotine vapour product business,
(c) where it is an application under subsection (1)(b), state the address of the further
premises at which the applicant proposes to carry on a tobacco or nicotine vapour product
business, (d) contain such other information as is prescribed, and (e) be made in such form
and manner as is determined by the Scottish Ministers.
[#ps69]
(2A) an application under subsection (1) must state, in relation to each of
the premises included in it, whether the applicant proposes to carry on— (a) a tobacco
business at the premises, (b) a nicotine vapour product business at the premises, or (c) both
a tobacco business and a nicotine vapour product business at the premises.
[#ps70]
(3) The Scottish Ministers must grant the application unless— (a) it does not
comply with the requirements in subsection (2), or (b) at the time the application is made,
the applicant is banned, under a tobacco and nicotine vapour product banning order from
carrying on a tobacco or nicotine vapour product business at any premises specified in the
application.
[#ps71]
(4) On granting an application under subsection (1)(a), the Scottish
Ministers must enter the following information in the Register— (a) the name and address of
the applicant, (b) the addresses of the premises at which the applicant proposes to carry on
a tobacco [or nicotine vapour product business, noting, in relation to each of the premises,
whether the applicant proposes to carry on—] 4 [(i) a tobacco business at the premises, (ii)
a nicotine vapour product business at the premises, or (iii) both a tobacco business and a
nicotine vapour product business at the premises, and (c) any other information which the
Scottish Ministers consider appropriate.
[#ps72]
(5) On granting an application under subsection (1)(b), the Scottish
Ministers must amend the applicant's entry in the Register so as to include the address of
the further premises at which the applicant proposes to carry on a tobacco [or nicotine
vapour product business, noting, in relation to each of the premises, whether the applicant
proposes to carry on—] 5 (a) a tobacco business at the premises, (b) a nicotine vapour
product business at the premises, or (c) both a tobacco business and a nicotine vapour
product business at the premises.
[#ps73]
(1) On granting an application under section 11(3) the Scottish Ministers
must issue to the applicant a certificate of registration in respect of each premises stated
in the application.
[#ps74]
(2) A certificate issued under subsection (1) must state whether the premises
are noted in the applicant's entry in the Register as premises at which the person carries
on— (a) a tobacco business, (b) a nicotine vapour product business, or (c) both a tobacco
business and a nicotine vapour product business.
[#ps77]
(1) The Scottish Ministers may correct the Register (following notification
under section 13 or otherwise) as they consider appropriate.
[#ps78]
(2) Where a tobacco and nicotine vapour product banning order is made against
a registered person, the Scottish Ministers must amend the person's entry in the Register so
as to remove references to the premises specified in the order.
[#ps79]
(3) The Scottish Ministers may remove a person's entry from the Register if—
(a) as a result of a correction or amendment under subsection (1) or (2), there are no
premises noted in the person's entry in the Register, or (b) they are not satisfied that the
person is carrying on a tobacco or nicotine vapour product business.
[#ps80]
(4) Where the Scottish Ministers correct, amend or remove a person's entry in
the Register under this section, they must— (a) as soon as reasonably practicable notify the
person of the correction, amendment or, as the case may be, removal, and (b) if it is
appropriate to do so, issue at the same time to the person a revised certificate of
registration.
[#ps81]
(5) The Scottish Ministers must reinstate a person's entry in the register
if— (a) the entry was removed under subsection (3)(b), and (b) the person notifies them no
later than 28 days after notice of the removal is given under subsection (4)(a) that the
person is still carrying on a tobacco or nicotine vapour product business.
[#ps82]
(6) A notice under subsection (4)(a) may be given— (a) by delivering it to
the person, (b) by leaving it at the person's usual or last known address, (c) by sending it
by post to the person at that address.
[#ps83]
(1) A council may apply to the sheriff for an order banning a person from
carrying on a tobacco or nicotine vapour product business from premises within the council's
area.
[#ps84]
(2) An application under subsection (1) must specify the premises from which
the person is to be banned from carrying on a tobacco or nicotine vapour product business.
[#ps85]
(3) The sheriff may make an order banning the person from carrying on a
tobacco or nicotine vapour product business at the premises specified in the order if
satisfied, on the balance of probabilities, that— (a) there have been 3 or more relevant
enforcement actions in respect of each premises specified in the order, (b) at least one of
the actions occurred in the period of 2 months ending on the date the application was made,
(c) the conduct to which the actions relate took place within a period of 2 years, and (d)
the making of the order is necessary to prevent the commission of offences under Chapter 1 or
2.
[#cs86]
(4) A relevant enforcement action occurs where a person mentioned in subsection
(4A) is— (a) issued with a fixed penalty notice (which is not subsequently withdrawn), (b)
convicted of an offence under Chapter 1 or 2 , or (c) convicted of an offence under section
92(1)(b) or (c) of the Trade Marks Act 1994 (unauthorised use of trade mark in relation to
goods) in circumstances where the goods in question are, or include, tobacco products, smoking
related products or nicotine vapour products.
[#cs87]
(4A) The persons are— (a) the person who is the subject of the application, (b)
an employee or agent of that person.
[#cs88]
(5) An order made under this section has effect for the period (not exceeding
24 months) specified in the order beginning with the day the order is granted.
[#cs89]
(6) In this Part, an order made under this section is referred to as a “tobacco
and nicotine vapour product banning order” .
[#cs90]
(1) This section applies where— (a) a council has applied for a tobacco and
nicotine vapour product banning order in respect of a person (“P”), or (b) a tobacco and
nicotine vapour product banning order has been made in respect of P.
[#ps91]
(2) A council may apply to the sheriff for an ancillary order— (a) banning P
from— (i) being connected to a person carrying on a tobacco or nicotine vapour product
business at the specified premises, (ii) seeking to control a person carrying on a tobacco or
nicotine vapour product business at the specified premises, (b) where P is not an individual,
banning any person connected to P from— (i) carrying on a tobacco or nicotine vapour product
business at the specified premises, (ii) being connected to a person carrying on a tobacco or
nicotine vapour product business at the specified premises, (iii) seeking to control a person
carrying on a tobacco or nicotine vapour product business at the specified premises.
[#ps92]
A sheriff may make the ancillary order if— (a) the sheriff is satisfied, on
the balance of probabilities, that the order is necessary to prevent the commission of
further offences under Chapter 1 or 2, and (b) where this section applies by virtue of
subsection (1)(a), the sheriff makes the tobacco and nicotine vapour product banning order.
[#cs93]
(4) An ancillary order made under this section ceases to have effect when the
tobacco and nicotine vapour product banning order to which it relates ceases to have effect.
[#cs94]
(5) In subsection (2), “the specified premises” means the premises specified in
the tobacco and nicotine vapour product banning order to which the ancillary order relates .
[#cs95]
(6) For the purposes of this section, a person is connected to a partnership, a
limited liability partnership, a company or other body (whether incorporated or unincorporated)
if the person— (a) in the case of a partnership, is a partner, (b) in the case of a limited
liability partnership, is a member, (c) in the case of a company— (i) is a director, or (ii)
has control of the company, (d) in any other case, is concerned in the management or control of
the body.
[#cs96]
(7) For the purposes of subsection (6)(c)(ii), a person is taken to have
control of a company if— (a) any of the directors of the company, or of any other company
having control of the company, is accustomed to act in accordance with the person's directions
or instructions, or (b) the person is entitled to exercise, or to the control the exercise of,
at least one third of the voting power at any general meeting of the company or of any other
company having control of the company.
[#ps97]
(1) A person against whom a tobacco [and nicotine vapour product] 1 banning
order or an ancillary order under section 16 is made may appeal to the sheriff principal,
whose decision is final.
[#ps98]
(2) An appeal under this section must be made within 21 days of the order
being made.
[#ps99]
(3) Where the appeal is against a tobacco and nicotine vapour product banning
order, the sheriff principal may determine the appeal by— (a) quashing the order (and any
ancillary order under section 16 relating to the order), (b) substituting for the period
specified in the order under section 15(5) such other period of effect (ending no later than
24 months after the day the order was granted) as the sheriff principal considers
appropriate, or (c) refusing the appeal.
[#ps99a]
(4) Where the appeal is against an ancillary order under section 16, the
sheriff principal may determine the appeal by— (a) quashing the order, or (b) refusing the
appeal.
[#cs102]
(1) This section applies where— (a) a tobacco and nicotine vapour product
banning order has effect in respect of a person, and (b) the person carries on a retail
business at the premises specified in the order.
[#ps103]
(2) The person must display a notice in the premises in accordance with
subsection (3).
[#ps104]
(3) The notice must— (a) state that the premises have been specified in a
tobacco and nicotine vapour product banning order and the period for which the order has
effect, (b) be displayed in a prominent position in the premises where it is readily visible
to persons at every relevant point of sale, and (c) be displayed no later than 14 days after
the tobacco and nicotine vapour product banning order is made.
[#cs105]
(4) A relevant point of sale is one that was used for the sale of tobacco
products, smoking related products or nicotine vapour products at any time during the period of
2 months ending with the making of the banning order.
[#ps106]
(5) The Scottish Ministers may prescribe— (a) the dimensions of the notice to
be displayed in accordance with this section, (b) the wording of the statement to be
displayed on the notice, and (c) the size of the statement.
[#ps107]
(1) An unregistered person who carries on a tobacco business commits an
offence.
[#ps108]
(2) A registered person who carries on a tobacco business at premises other
than those noted in the person's entry in the Register commits an offence.
[#ps109]
(3) A person who fails, without reasonable excuse, to comply with section
13(1) (duty to notify certain changes) commits an offence.
[#ps110]
(4) A person who breaches a tobacco retailing banning order or an ancillary
order made under section 16 commits an offence.
[#ps111]
(5) A person who fails, without reasonable excuse, to comply with section
19(2) (duty to display notice) commits an offence.
[#rs112]
(6) A person guilty of an offence under— (a) subsection (1), (2) or (4)
is liable on summary conviction to— (i) a fine not exceeding £20,000, (ii) imprisonment for a
term not exceeding 6 months, or (iii) both, (b) subsection (3) is liable on summary
conviction to a fine not exceeding level 2 on the standard scale, (c) subsection (5) is liable
on summary conviction to a fine not exceeding level 3 on the standard scale.
[#ps113]
(1) On the basis of information contained in the Register, the Scottish
Ministers must make available for public inspection a list of premises, specifying for each
of those premises whether there is carried on, or there is proposed to be carried on— (a) a
tobacco business, (b) a nicotine vapour product business, or (c) both a tobacco business and
a nicotine vapour product business.
[#ps114]
(2) The list must be made available free of charge at all reasonable times.
[#ps127]
(1) 42 For the purpose of carrying out a council's functions under this Part,
a council officer is entitled to— (a) enter any premises (other than premises used only as a
private dwelling house), (b) inspect and examine the premises, (c) require the production of
any book, document, data, record (in whatever form it is held) or product and inspect it, and
take copies of or extracts from it, (d) take possession of any book, document, data, record
(in whatever form it is held) or product which is on the premises and retain it for as long
as the officer considers necessary, (e) require any person to give the officer such
information, or afford the officer such facilities and assistance, as the officer considers
necessary.
[#ps128]
(2) A person is not required by subsection (1) to answer any question or
produce any document which the person would be entitled to refuse to answer or produce in
proceedings in a court in Scotland.
[#ps129]
(1) A sheriff may by warrant authorise a council officer to enter (if
necessary using reasonable force) any premises (other than premises used only as a private
dwelling house) for the purpose of carrying out a council's functions under this Part.
[#ps130]
(2) A warrant may be granted under subsection (1) only if the sheriff is
satisfied by evidence on oath— (a) that there are reasonable grounds for entering the
premises in question, and (b) that— (i) entry to the premises has been or is likely to be
refused and that notice of intention to apply for a warrant under this section has been given
to the occupier, (ii) a request for entry, or the giving of such notice, would defeat the
object of the entry, (iii) the premises are unoccupied, or (iv) the occupier is temporarily
absent and it might defeat the object of the entry to await the occupier's return.
[#cs131]
(3) A warrant granted under this section continues in force until the end of
the period of one month beginning with the date on which it is granted.
[#ps132]
(1) A council officer entering any premises under section 28 or in accordance
with a warrant granted under section 29 may take on to the premises such other persons and
such equipment as the officer considers necessary.
[#ps133]
(2) A right to enter any premises conferred by section 28 may be exercised
only at a reasonable time.
[#ps134]
(3) A council officer exercising a right conferred by section 28 must, if
required to do so, produce written evidence of the officer's authorisation to exercise that
right.
[#ps135]
(4) On leaving any premises which a council officer is authorised to enter by
a warrant granted under section 29, the officer must, if the premises are unoccupied or the
occupier is temporarily absent, leave the premises as effectively secured against trespassers
as the officer found them.
[#ps136]
(5) A council officer who takes possession of any item under section 28(1)(d)
must leave a statement on the premises from which the item was removed— (a) giving
particulars of what has been taken, and (b) stating that the officer has taken possession of
it.
[#ps137]
(1) A person who— (a) intentionally obstructs a council officer who is acting
in the proper exercise of the officer's functions under this Part, or (b) without reasonable
cause fails to comply with any requirement made by such an officer who is so acting, commits
an offence.
[#ps138]
(2) A person who, in giving any information which is properly required by a
council officer, makes a statement which is false in a material particular commits an
offence.
[#ps139]
(3) A person does not commit an offence under subsection (2) if— (a) the
person did not know the material particular was false, and (b) the person had reasonable
grounds to believe that it was true.
[#rs140]
(4) A person guilty of an offence under subsection (1) or (2) is liable on
summary conviction to a fine not exceeding level 3 on the standard scale.
[#ps141]
(1) A constable who suspects with reasonable cause that any person is
committing or has committed an offence under Chapter 1 or 2 may enter any premises (other
than premises used only as a private dwelling house) for the purpose of obtaining evidence of
the offence.
[#ps142]
(2) A right to enter any premises conferred by subsection (1) may be
exercised only at a reasonable time.
[#ps143]
(3) A sheriff may by warrant authorise a constable authorised to exercise the
power conferred by subsection (1) to do so (if necessary using reasonable force) in
accordance with the warrant.
[#ps144]
(4) A warrant may be granted under subsection (3) only if the sheriff is
satisfied, by evidence on oath, that there are reasonable grounds for suspecting that an
offence under Chapter 1 or 2 is or has been committed on the premises.
[#cs145]
(1) This section applies for the purpose of any trial in proceedings for an
alleged offence under section 1, 4, 4A, 4B, 4C, 5, 6, 6A or 9
[#cs146]
(2) Any substance displayed, sold or purchased in a container (whether sealed
or not) is presumed to conform to the description of the substance on the container.
[#ps147]
(3) At the trial, any party to the proceedings may rebut the presumption
mentioned in subsection (2) by proving that, at the time of its display, sale or purchase,
the substance in the container did not match the description on the container.
[#ps148]
(4) However, a party may lead evidence for the purpose of rebutting the
presumption only if the party has, not less than 7 days before the date of the trial, given
notice of the intention to do so to the other parties.