Selling tobacco products is complicated and subject to heavy regulation. These restrictions reflect public policy initiatives at all levels of government to reduce smoking. This article details how, when and in what circumstances a business can sell tobacco products.

What Government Regulates Tobacco Products?

Australia’s national, state and territory governments regulate tobacco products with the Federal Government setting the level of excise tax. State and territory governments, however, regulate the following:

  • When a business can sell tobacco;
  • How businesses must sell tobacco; and
  • Circumstances when they must, by law, refuse sale.

States and territories also regulate where an individual can smoke in public.

Licenses

You may be required to have a licence or formally notify your state or territory government that you intend to sell tobacco products. Whether you must do so depends on location. For example, in New South Wales, tobacco retailers must first notify the Director-General of the Department Of Health. In Western Australia, all tobacco retailers need a licence (and Queensland appears set to follow suit). Conversely, tobacco retailers do not need a licence or to notify the government if they wish to sell tobacco.

Sale

Businesses are typically able to sell tobacco from only one point of sale. They cannot sell single cigarettes or from a temporary or mobile structure, even if it forms part of a permanent premises. These structures include:

  • Display stands
  • Booths
  • Tents
  • Marquees
  • Vans, and
  • Trucks.

A retailer cannot sell tobacco at a major sporting event or arts-related event such as Big Day Out.

Both employees and employers can face stiff penalties for selling tobacco to a person under the age of 18. As a proprietor, you should have strict policies about asking for identification and display prominently a sign indicating what types of ID you will accept. It is advisable for employers to undertake staff training regularly focused on not selling tobacco to minors, requesting ID and the legal implications of selling to anyone aged below 18. They should also ask employees to sign their attendance at the training. Training is not merely best practice. In Victoria, an employer may avoid a fine if their employee sells tobacco to a minor and they have implemented a comprehensive training regime. Every retailer must have a sign that tells customers that a minor cannot buy tobacco.

As a tobacco retailer, it is necessary to stay aware of any and all products banned from sale. The Minister for Health bans selling certain products because their taste or appearance may entice young people to smoke. In that instance, the Minister for Health bans them. For example, a strawberry or green apple flavoured product. The Minister can also withdraw other non-tobacco products that resemble tobacco from the market. State and territory agencies have up to date lists, freely available for all retailers.

Retailers are usually required to display an A3 black and white sign warning of the dangers of smoking next to the point of sale for tobacco products or near the store’s entrance. Similarly, they must have an A4 sign in the same area indicating that minors cannot buy tobacco.

Display

Retailers are not allowed to display tobacco products. If they sell them, they must be in an unobtrusive cupboard or drawer and cannot be visible. However, stores can have an A4 sign indicating that they sell tobacco. Only duty-free shops and specialist certified tobacconists are exempt from this requirement.

To qualify as a certified, specialist tobacconist, a retailer must apply to the applicable state authority and receive formal certification. When a customer requests a tobacco product, be careful to open the drawer or cupboard only for as long as necessary to remove it. An undecided customer cannot peruse these products. Instead, a retailer must ask general questions of them. A retailer must repair a damaged cupboard or drawer as soon as possible.

In the interim, a retailer is legally obliged to make all reasonably practical efforts to ensure that tobacco products are not visible to the public. If the drawer or cupboard has labels or prices to guide staff, customers should not be able to read them. It is best practice to restock the products when the store is closed. If a delivery arrives during opening hours, the products must be removed from sight immediately.

Tobacco retailers can have a price board subject to particular specifications. They typically mandate how large the writing can be and require no lighting. There must be an appropriate graphic warning on the board as well (provided by the federal department of health). No retailer can advertise cigarettes. Similarly, they cannot discount them or offer them in exchange for a voucher or as part of a customer loyalty or rewards scheme.

Vending Machines

A retailer can only place a vending machine selling tobacco products in certain areas. Precisely where depends on the type of business. For example, in Victoria bottle shops can only have a machine next to the counter. In a bar, a machine must be visible and within a certain distance of the counter. As with other products, no tobacco can be visible, and the onus is on the proprietor to have a sign warning that minors cannot buy tobacco. Price ticketing must also accord with regulations guiding size and what information is permissible to display.

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Business owners must comply with their legal obligations if they are selling tobacco products. If you have any questions about when or how you can sell tobacco products, get in touch with our commercial lawyers on 1300 544 755. 

Carole Hemingway

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