Seanad debates

Wednesday, 15 July 2009

Public Health (Tobacco) (Amendment) Bill 2009: Committee and Remaining Stages

 

Sections 1 and 2 agreed to.

SECTION 3.

2:00 pm

Photo of Pat MoylanPat Moylan (Fianna Fail)
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Amendments Nos. 1, 2 and 4 to 11, inclusive, are cognate and may discussed together by agreement. Is that agreed? Agreed.

3:00 pm

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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I move amendment No. 1:

In page 3, line 29, after "order" to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

I thank the Minister of State for her response. It is interesting that the figure for duty free sales to minors is so low.

In 2008 there were 26 convictions for sales to minors under the Public Health (Tobacco) Act. The total amount of fines given in all prosecutions was €6,750, the average fine handed down was €250 and the guide fine under the legislation was €300. In three cases the fine was €100 and in seven cases, almost 27% of prosecutions, there were no fines. The fines are not an effective deterrent. Convictions are difficult to secure and there seems to be a problem of enforcement. I do not know whether that is due to a shortage of people or because it is difficult to get a prosecution. A deterrent is therefore very important. The Oireachtas should send out a clear message about these public health issues.

Senator Feeney is not correct to say that the Irish Cancer Society, the Irish Heart Foundation and ASH are happy with this legislation. They believe it is a watering down. A mistake was made in the negotiations with the former Minister of State at the Department of Health and Children, Deputy Wallace, that led to this Bill when the lobby interests took priority over the public health interests. That is disappointing because this is a major public health issue.

I have already acknowledged the positive aspects of this legislation and the work of the Ministers in this area, for example, the former Minister for Health and Children, Deputy Martin. The smoking ban was exceptional public health legislation which had an enormous impact. The figures show, however, that the challenge continues. This amendment addresses the challenge by saying that to deal with the challenges from public health point of view we need strong deterrents to stop young people starting to smoke. This concerns protecting minors and we say there should be a minimum mandatory element. That is why the amendment proposes a period of no fewer than 14 days because selling cigarettes to minors has such lifelong implications and is so serious that there can be no compromise. Amendment No. 1 states "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months". When the Minister of State commented on this, she spoke about a proportionate response and suggested that, constitutionally or legally, my proposal might be considered a disproportionate response. When one considers the health implications of selling cigarettes, what is a proportionate response or an appropriate deterrent? As for removing a retailer who is guilty of such an offence from the retail register for a three month period, the shop can continue to sell other products, it is not as if the business is being closed. Such a retailer will be removed from the retail register to sell this product.

If the effect of this measure is that some young people get cigarettes more easily, end up with a lifelong addiction, lung cancer, cardiovascular problems or a range of other health problems, what constitutes a proportionate response? A proportionate response would be for the Government to take this issue seriously, to have a strict response to it and to recognise that tobacco is different from other licensed products. There is no safe consumption of tobacco. We must bear to mind that the rate of lung cancer is increasing and I have gone into detail about that. This is an extraordinarily serious public health issue. As Senator Prendergast and others have said, the addiction issues around young people beginning to smoke early in their lives will have an enormous impact on their health. Therefore, we must get this legislation right.

Our view is that if the Minister of State accepted this amendment, it would strengthen the legislation and give a clearer message to retailers and to the 60% of retailers who are compliant in this regard. I understand there is not a problem in regard to the behaviour of 60% of retailers and the Minister of State may indicate the percentage is higher than that but that is the figure I have. The 60% of retailers who abide by the law will not view it as fair if the sanctions against those who breach the law are not strong. That is another reason to be clear in this respect. This proposal is not draconian, of that there is no question, but it is stronger than what is currently proposed. What I propose assumes that a person's removal from the register would be automatic and would not have to be referred for judicial decision. It is a stronger approach.

Clearly, there were different agendas in regard to this legislation. There is a public health agenda, which should be the primary one. That was the agenda when the legislation to ban smoking was introduced. The Government stood up to vested interest groups. What is proposed in this legislation constitutes a giving in to certain groupings. I do not know whether it was the retailers, the tobacco industry or from where the influences came, but public health was not placed centre stage when these amendments were being considered. I am surprised by that because I know the Government is committed to public health issues. Aspects of this legislation are strange. It smacks of lobby group influence, which does not put public health centre stage. For that reason, I propose amendment No. 1 to section 3.

Photo of Phil PrendergastPhil Prendergast (Labour)
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I second the amendment for the reasons outlined by Senator Fitzgerald. She made a valid point on the need to ensure that public health is put centre stage in this respect. I cannot restate often enough the importance of preventing people from smoking in the first place. When I decided to start to smoke, I did so because of peer pressure. I and my colleagues were training together and it was considered cool to have a cigarette and a cup of coffee. That is a wrong reason to smoke but at the time that was what we were exposed to. It was considered cool to smoke. I now realise the huge public health cost of smoking on our health services. Mr. Michael O'Shea, the Irish Cancer Society and ASH have made very relevant contributions to this legislation. These amendments are excellent and their inclusion would strengthen the legislation for the reasons clearly outlined by Senator Fitzgerald.

Photo of Áine BradyÁine Brady (Minister of State with special responsibility for Older People and Health Promotion, Department of Health and Children; Minister of State, Department of Environment, Heritage and Local Government; Minister of State, Department of Social and Family Affairs; Kildare North, Fianna Fail)
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We are dealing with amendments Nos. 1, 2 and 4 to 11, inclusive. On the issue of the monitoring and enforcement of the legislation, the Office of Tobacco Control is responsible for the co-ordination and implementation of the national tobacco control inspection programme in order to ensure there is compliance with this important public health legislation. Environmental health office, EHOs, in the Health Service Executive are authorised officers under the Public Health (Tobacco) Acts. Protocols or administrative guidelines have been developed by the OTC in co-operation with the HSE. The guidelines set out best practice to be followed by EHOs and facilitate a consistent approach to enforcement of the legislation.

In 2008 active enforcement of the smoke-free workplace legislation by the EHOs was critical in maintaining the high levels of compliance and 97% of premises inspected were found to be complaint. The data from the national inspection programme are published annually by the OTC. The data include the number of inspections, the rates of compliance and the number of prosecutions for specific breaches of the legislation.

With regard to the penalties under the Public Health (Tobacco) Acts, I have already pointed out that a period of suspension from the retail register is mandatory and it will remain mandatory. The only change is that we are providing for judicial discretion in this respect. It can apply up to a three month period of suspension. I said that my officials will keep the operation of this aspect of the legislation under review.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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We discussed the advertising issue earlier to which the Minister of State responded. From some of the examples I have seen, there is a difference between a standard sign stating the need for the production of ID and a marketing campaign which, effectively, is what is happening, which creates a ready-made standard, namely, no ID no sale, on the shelves where cigarettes are sold. I assume that is a matter the Minister of State's officials will investigate to examine whether it is a legitimate sign. That is important because in terms of the advertising that is taking place, we are seeing clever marketing campaigns to get around the provisions of the legislation.

Photo of Áine BradyÁine Brady (Minister of State with special responsibility for Older People and Health Promotion, Department of Health and Children; Minister of State, Department of Environment, Heritage and Local Government; Minister of State, Department of Social and Family Affairs; Kildare North, Fianna Fail)
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I have explained what is allowed. There cannot be any reference to tobacco in any advertisements relating to the ID section. The other advertisement that is allowed is the one that has been outlined in the guidelines. I hope the Senator has seen the one that is officially allowed, stating that tobacco products are sold to people over 18 years of age only.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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Is the Minister of State familiar with the marketing campaigns that are ongoing which say, no ID, no sale. They are clearly subliminally about tobacco advertising.

Photo of Áine BradyÁine Brady (Minister of State with special responsibility for Older People and Health Promotion, Department of Health and Children; Minister of State, Department of Environment, Heritage and Local Government; Minister of State, Department of Social and Family Affairs; Kildare North, Fianna Fail)
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What is the Senator's concern in that regard? I am not aware of the advertisements.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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Perhaps the Minister of State would give an undertaking that the officials might examine the matter. It does not appear to be within the spirit of the legislation. In terms of the ongoing monitoring of the legislation, this is one area that will need to be monitored and a decision will need to be made as to whether it comes within the legislation or undermines it. It may be considered necessary to introduce further legislation to deal with the matter.

Amendment put.

The Dail Divided:

For the motion: 15 (Ivana Bacik, Paul Bradford, Paddy Burke, Jerry Buttimer, Paudie Coffey, Paul Coghlan, Maurice Cummins, Pearse Doherty, Paschal Donohoe, Frances Fitzgerald, Nicky McFadden, Joe O'Reilly, Phil Prendergast, Brendan Ryan, Liam Twomey)

Against the motion: 28 (Dan Boyle, Martin Brady, Larry Butler, Peter Callanan, Ivor Callely, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, Déirdre de Búrca, John Ellis, Geraldine Feeney, Camillus Glynn, John Gerard Hanafin, Terry Leyden, Brian Ó Domhnaill, Labhrás Ó Murchú, Francis O'Brien, Denis O'Donovan, Fiona O'Malley, Ned O'Sullivan, Ann Ormonde, Kieran Phelan, Feargal Quinn, Shane Ross, Jim Walsh, Mary White, Diarmuid Wilson)

Tellers: Tá, Senators Jerry Buttimer and Maurice Cummins; Níl, Senators Geraldine Feeney and Diarmuid Wilson.

Amendment declared lost.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Does Senator Fitzgerald propose to press amendment No. 2?

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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As amendments Nos. 1, 2 and 4 to 11, inclusive, are related, they have all been dealt with in the division on amendment No. 1. I do not agree with these provisions because they effectively mean that public health issues are not central. That is why I called a vote. However, I do not propose to press the remaining amendments.

Amendment No. 2 not moved.

Photo of Phil PrendergastPhil Prendergast (Labour)
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I move amendment No. 3:

In page 3, after line 33, to insert the following:

"(2) The period of time for which registration of a person is suspended under this section in respect of any one offence shall not be less than 7 days.".

This amendment was submitted by my colleague in the Dáil.

Photo of Áine BradyÁine Brady (Minister of State with special responsibility for Older People and Health Promotion, Department of Health and Children; Minister of State, Department of Environment, Heritage and Local Government; Minister of State, Department of Social and Family Affairs; Kildare North, Fianna Fail)
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I have dealt with this issue. The question of suspension from the retail register is to be left entirely to judicial discretion, with a maximum period of 90 days.

Amendment, by leave, withdrawn.

Amendments Nos. 4 to 11, inclusive, not moved.

Question put: "That section 3 stand part of the Bill."

The Dail Divided:

For the motion: 28 (Dan Boyle, Martin Brady, Larry Butler, Peter Callanan, Ivor Callely, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, Déirdre de Búrca, John Ellis, Geraldine Feeney, Camillus Glynn, John Gerard Hanafin, Terry Leyden, Francis O'Brien, Denis O'Donovan, Fiona O'Malley, Ned O'Sullivan, Brian Ó Domhnaill, Labhrás Ó Murchú, Ann Ormonde, Kieran Phelan, Feargal Quinn, Shane Ross, Jim Walsh, Mary White, Diarmuid Wilson)

Against the motion: 15 (Ivana Bacik, Paul Bradford, Paddy Burke, Jerry Buttimer, Paudie Coffey, Paul Coghlan, Maurice Cummins, Pearse Doherty, Paschal Donohoe, Frances Fitzgerald, Nicky McFadden, Joe O'Reilly, Phil Prendergast, Brendan Ryan, Liam Twomey)

Tellers: Tá, Senators Geraldine Feeney and Diarmuid Wilson; Níl, Senators Maurice Cummins and Pearse Doherty.

Question declared carried.

NEW SECTION.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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I move amendment No. 12:

In page 5, before section 4, to insert the following new section:

4.—Any approved signage regarding age restrictions on the sale of tobacco products, or any other matter, must be approved by the Department of Health and Children and must not carry the colour scheme of tobacco brands on the market.

We discussed advertising issues earlier but this amendment deals with the issue of subliminal marketing that is going on and which, I believe, goes against the spirit of what the Minister would want. We have effectively discussed the matter already.

Photo of Áine BradyÁine Brady (Minister of State with special responsibility for Older People and Health Promotion, Department of Health and Children; Minister of State, Department of Environment, Heritage and Local Government; Minister of State, Department of Social and Family Affairs; Kildare North, Fianna Fail)
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Section 43 of the Public Health (Tobacco) Acts 2002 and 2004 provides that a person registered with the Office of Tobacco Control under section 37 must display a prescribed sign at the premises where tobacco products are sold. The sign, which informs the public that tobacco products are on sale to persons aged 18 years and over, is prescribed in the Public Health (Tobacco Retail Sign) Regulations 2009. No other sign, notice or display is permitted at the premises indicating that tobacco products are for sale, and attention cannot be drawn to the sign by means of light, sound or any other means.

I understand that some retail outlets are displaying a sign indicating that ID may be required. This sign does not specifically refer to tobacco products being available to purchase. There is a wide range of age-restricted products to be found in retail outlets that also sell tobacco, so there can be no legitimate objection to a sign drawing attention to the fact that age-ID may be required, as long as tobacco is not specifically referenced.

Also, retailers have made the point that it is helpful for their staff to have a sign to point to when dealing with a troublesome customer. There is an obvious need to find a solution to this problem. A sign not specifically referenced to tobacco is an acceptable solution. A sign using the recognised colours of cigarettes, such as gold, blue or purple, is not acceptable. The proposed amendment is therefore not required and I regret I am unable to accept it.

Amendment, by leave, withdrawn.

SECTION 4.

Photo of Frances FitzgeraldFrances Fitzgerald (Fine Gael)
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I move amendment No. 13:

In page 5, between lines 41 and 42, to insert the following:

"(2) The display of a sign or artifact which advertises cigarettes, where the brand displayed is one which is no longer available for sale in the form displayed or advertised on the sign or artifact, is not prohibited.".

This is a minor point concerning premises with antique signs that are there for historic rather than marketing reasons. The issue may well be covered already but I thought I would put it in as an amendment and ask the Minister of State to respond.

Photo of Áine BradyÁine Brady (Minister of State with special responsibility for Older People and Health Promotion, Department of Health and Children; Minister of State, Department of Environment, Heritage and Local Government; Minister of State, Department of Social and Family Affairs; Kildare North, Fianna Fail)
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Section 33A of the Public Health (Tobacco) Act 2002, as inserted by section 5 of the Public Health (Tobacco) (Amendment) Act 2004, defines "advertisement" as including, with regard to a tobacco product:

every form of recommendation of the product to the public and, in particular---

(a) (i) a statement of the name of a manufacturer or importer of a tobacco product, or the name of any brand of tobacco product, or

(ii) a statement of any trade description or designation, or a display or other publication of a trademark, emblem, marketing image or logo, by reference to which the product is marketed or sold,

in circumstances where such statement, display or publication may reasonably be regarded as a recommendation of the product to the public.

If a brand no longer exists then there is no product to recommend to the public and the display of, for example, an obsolete brand could not be seen as a recommendation of that product to the public. Signs and memorabilia connected with brands that are no longer on the market may therefore continue to be displayed. The issue here is whether a brand is still on the market, and it is immaterial whether a mirror or other item is genuine or a reproduction. This amendment is unnecessary and I regret I am unable to accept it.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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I thank the Minister for her reply. Before she reached the last sentence I was beginning to think it would be an awful shame if old signs such as the ones under discussion were covered by the Bill. Ireland markets itself partly in terms of the old Irish pub. Many of these have been recreated and one sees signs for Sweet Afton, Woodbines and other brands of cigarette which I remember from childhood. I was hoping the Minister would reply in the manner she did. It is nice to see such old signs still displayed and if the products are not available for sale today they do not pose a threat.

Amendment, by leave, withdrawn.

Section 4 agreed to.

SECTION 5.

Question proposed: "That section 5 stand part of the Bill."

Photo of Pearse DohertyPearse Doherty (Sinn Fein)
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I did not have the opportunity to express my opposition, and that of my party, to section 3 of the Bill, but these two sections are linked and we oppose them for the same reasons. I will outline for the Minister of State why I pushed the vote on the deletion of section 3. I speak as somebody who has been smoking for a long time. I am not that old, but I have been smoking for a long period of my life. However, I am off cigarettes for the last seven weeks, so I am doing all right.

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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Well done.

Photo of Pearse DohertyPearse Doherty (Sinn Fein)
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It is important that we acknowledge the major damage caused by smoking in our society. We need to take into account the need for constant vigilance and concerted efforts to combat smoking in the most effective way possible. It is extremely disappointing to see the Government introducing provisions that water down the penalties for breaches in the law with regard to the advertising, sale and display of tobacco products in shops. We need to ask ourselves what signal this sends out. The latest survey from the Office of Tobacco Control shows that 40% of retailers and 63% of licensed premises are willing to sell cigarettes to minors. While there has been some improvement in these figures since 2007, it is still a high rate and shows that breaches of the law are widespread. Such breaches ensure that children can have ready access to cigarettes and begin an addiction that will be lifelong in many cases, health-impairing in most and fatal, unfortunately, in many.

In the Public Health (Tobacco) Act 2002, among the penalties set out is removal of the retailer from the register and consequent prohibition from sale of tobacco products for three months for a summary offence and a year upon indictment. This new Bill proposes, in sections 3 and 5, to dilute these penalties. The mandatory tobacco sale prohibition period for offenders is to be changed from three months or one year to a maximum of three months or one year, with lesser periods possible at the discretion of the Judiciary. This is just not acceptable.

When the Bill was published, the impression was given that this change only affected those provisions relating to the display of sale of tobacco products. The Government rightly went ahead with the ministerial order that came into effect on 1 July but apparently as a softener to retailers signalled that it would reduce the penalties for breach of the law. As I said, the impression was that this was only for display-related offences, but my reading of the Bill indicates that it covers all breaches of the principal Act of 2002. Either way, Sinn Féin is opposed to sections 3 and 5 of the Bill, which send out entirely the wrong signal and represent a slackening of the effort to combat smoking and prevent the grave damage it does to our society.

I have no difficulty with the Bill in general, apart from these sections; other sections relate to duty free and specialist tobacco shops. However, the signal these sections have sent out is unhealthy. The Minister for Health and Children talks about the damage done by tobacco and we all know about this. In this context, I do not understand why a Government would reduce the penalties for sale to minors. It does not make sense.

Photo of Áine BradyÁine Brady (Minister of State with special responsibility for Older People and Health Promotion, Department of Health and Children; Minister of State, Department of Environment, Heritage and Local Government; Minister of State, Department of Social and Family Affairs; Kildare North, Fianna Fail)
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Sections 3 and 5 are interlinked and provide for judicial discretion on the period of time that a person convicted of an offence under the Public Health (Tobacco) Acts is suspended from the register. The issues involved here were discussed fully when section 3 was considered and I regret I am unable to accept the argument that section 5 should be reconsidered.

Question put and declared carried.

Sections 6 to 8, inclusive, agreed to.

Title agreed to.

Bill reported without amendment.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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When is it proposed to take Report Stage?

Photo of Geraldine FeeneyGeraldine Feeney (Fianna Fail)
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Now.

Bill received for final consideration and passed.