Catherine Murphy (Kildare North, Independent)
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Question 120: To ask the Minister for Jobs, Enterprise and Innovation if he is considering amending the Casual Trading Act specifically in regard to amending the fines for selling tobacco products for which duty has not been paid; and if he will make a statement on the matter. [27805/11]

Richard Bruton (Dublin North Central, Fine Gael)
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The Casual Trading Act, 1995 is the legislation which establishes the regime for the regulation of selling goods in public places. Section 2 (1) of the Act defines casual trading as "selling goods at a place (including a public road) to which the public have access as of right or any other place that is a casual trading area". Casual trading is regulated by the 88 local authorities who have the legal capacity to make bye laws under the Act. I, as Minister, have no role in the day to day regulation of casual trading by local authorities.

The enforcement of casual trading bye laws is a function of the local authority in the place where the selling of goods is taking place through their authorised officers for the purposes of the Act and through An Garda Síochána. The authorised officers of the local authorities have the usual powers to enter, inspect and examine any place where they have reasonable cause to believe that casual trading is taking place and to require information from traders etc. Also, An Garda Síochána have additional powers. An Garda Síochána can arrest without warrant a person they believe to be contravening the provisions of the Act and can seize and remove any goods which that person is selling or has possession for sale.

As I have stated I have no direct operational function in regards to casual trading regulation by local authorities. However, I would be surprised if any local authority has licensed a trader to sell tobacco products. Therefore the powers of An Garda Síochána to seize products apply here as selling goods without a licence is an offence under the Act of 1995.

The sale of tobacco products has its own regulatory regime established under the Public Health (Tobacco) Acts, 2002 and 2004. Under this legislation it is an offence to sell tobacco products without being registered with the National Tobacco Control Office which is part of the Health Service Executive (HSE). Therefore anyone selling tobacco products without being registered is committing an offence. The penalties for not being registered to sell tobacco are on summary conviction a fine not exceeding € 1,900 or imprisonment for a term not exceeding 3 months or to both or on conviction on indictment to a fine not exceeding € 125,000 or to imprisonment for a term of not exceeding 2 years or to both. Another aspect of the sale of tobacco products to which the Deputy refers is the payment of excise duty. The non-payment of excise duty is, I believe, an offence and subject to prosecution by Customs and Excise.

While I agree that there is a need to review the penalties under the Casual Trading Act, 1995 I would not propose to introduce a new offence for the sale of tobacco products for which excise duty had not been paid. I do, however, recognise the harm caused to the economy both in terms of lost revenue for the State and the adverse consequences for legitimate traders from the sale of tobacco on which duty has not been paid. Much of this activity is connected to criminal conduct and as such the competent authorities best suited to cope with this are An Garda Síochána and Customs and Excise. This would be in addition to the enforcement activities of the National Tobacco Control Office of the HSE. I do not feel that casual trading regulation is suited to cope with what is essentially a criminal enterprise.