First

Session, 48th General Assembly

Elizabeth II, 2016

BILL 35

AN ACT TO AMEND THE

SMOKE-FREE ENVIRONMENT ACT, 2005 AND THE TOBACCO CONTROL ACT

Received and Read the First Time .................................................................................................

Second Reading .................................................................................................................................

Committee ..........................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

SHERRY GAMBIN-WALSH

Minister of Seniors, Wellness and Social Development

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Smoke-free Environment Act, 2005 to

prohibit the use of electronic

cigarettes and the smoking of non-tobacco shisha in indoor public places and

workplaces; and

prohibit the use of electronic

cigarettes in motor vehicles when occupied by a person under the age of 16

years.

This Bill would also amend the Tobacco Control Act to

prohibit the sale of flavoured

tobacco;

prohibit the sale of vapour

products and non-tobacco shisha to persons under the age of 19 years;

prohibit the sale of vapour

products and non-tobacco shisha where the sale of tobacco products are currently

prohibited; and

regulate the promotion and

display of vapour products and non-tobacco shisha in the same manner that the

Act currently regulates tobacco promotion and display.

A BILL

AN ACT TO AMEND THE SMOKE-FREE ENVIRONMENT

ACT, 2005 AND THE TOBACCO CONTROL ACT

Analysis

SMOKE-FREE

ENVIRONMENT ACT, 2005

S.2 Amdt.

Definitions

S.4.1 Added

Hookah establishment

Ss.5 & 6 R&S

5. Designated room

6. Signs required

S.11 Amdt.

Regulations

TOBACCO

CONTROL ACT

Long title R&S

S.1 R&S

Short title

S.2 R&S

Definitions

S.2.1 Rep.

Purpose

S.3 Amdt.

Inspectors

S.3.4 Added

Flavoured tobacco

S.4 Amdt.

Offence

S.4.1 Amdt.

Sales prohibited in certain places

Ss.4.2 to 4.6 R&S

4.2 No display

4.3 No advertising or

promotional material

4.4 Vending machine

4.5 Permitted display

4.6 Tobacconist shop and

vapour products shop

S.5 Amdt.

Signs

S.7 Amdt.

Penalty

S.9 R&S

Removal of product

S.10 Amdt.

Regulations

NLR 1/02 Amdt.

NLR 78/99 Amdt.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SMOKE-FREE ENVIRONMENT ACT, 2005

SNL2005 cS-16.2

as amended

(1) Section 2 of the Smoke-free Environment Act, 2005 is amended by adding immediately

after paragraph (

a) the following:

(a.1) "designated e-cigarette use room"

means an enclosed room that is designated for e-cigarette use under

section 5;

(2) Section 2 of the Act is amended by adding

immediately after paragraph (

b) the following:

(b.1) "e-cigarette" means

(

i) a product or device, whether or not it

resembles a cigarette, containing a power source and heating element designed

to vapourize an e-substance for inhalation or release into the air, or

(ii) a product or device prescribed in the regulations

similar in nature or use to a product or device described in subparagraph (i);

(b.2) "e-substance" means a solid, liquid

or gas

(

i) for use in an e-cigarette that, on being

heated, produces a vapour, regardless of whether the solid, liquid or gas

contains nicotine, and

(ii) that is not a controlled substance within the

meaning of the Controlled Drugs and

Substances Act ( Canada );

(3) Section 2 of the Act is amended by adding

immediately after paragraph (

f) the following:

(f.1) "hookah establishment" means an

establishment where persons smoke non-tobacco substances from a water pipe;

(4) Paragraph 2(

l) of the Act is repealed and the

following substituted:

(l) "smoke" or "smoking" means,

except in paragraph 2(

b) and

section 5,

(

i) to smoke, hold or otherwise have control over

an ignited tobacco product,

(ii) to inhale or exhale vapour from an e-cigarette

or to hold or otherwise have control over an activated e-cigarette, or

(iii) to inhale or exhale vapour or smoke from a

water pipe or to hold or otherwise have control over an activated water pipe;

(5) Section 2 of the Act is amended by deleting

the word "and" at the end of paragraph (

m) and adding immediately after

that paragraph the following:

(m.1) "water pipe" means any ignited or

heated smoking equipment used to burn tobacco or non-tobacco substances or a

combination of tobacco and non-tobacco substances and draw the resulting smoke

through a liquid before it is inhaled; and

2. The Act is amended by adding immediately after

section 4 the following:

Hookah establishment

4.1

(1) Notwithstanding

section 4, a hookah establishment operating at the time this

section comes into

force may continue to allow smoking of non-tobacco substances in the hookah

establishment until June 30, 2017.

(2) An owner of a hookah establishment shall not

permit a person under the age of 19 years to enter or work in the hookah

establishment.

3. Sections 5 and 6 of the Act are repealed and

the following substituted:

Designated room

(1) In

this section, "smoking" means to smoke, hold or otherwise have

control over an ignited tobacco product.

(2) In this

section and paragraph 2(a.1), "e-cigarette

use" means to inhale or exhale vapour from an e-cigarette or to hold or

otherwise have control over an activated e-cigarette.

(3) Notwithstanding paragraph 4(1)(a), in a

workplace that is

(

a) a remote worksite as designated by the

regulations;

(

b) an underground mining operation; or

(

c) a marine installation or structure as defined

section 152 of the Canada-Newfoundland

Atlantic Accord Implementation Act ( Canada ),

an employer may, in accordance with the

regulations, designate one or more enclosed rooms that are under that

employer's control as designated smoking rooms or designated e-cigarette use

rooms for employees.

(4) An operator may, in accordance with the

regulations, designate one or more enclosed rooms in a facility that are under

that operator's control as designated smoking rooms or designated e-cigarette

use rooms for residents of that facility.

(5) An employer or operator and a person acting on

behalf of either shall ensure that persons refrain from smoking or using an

e-cigarette in a

(

a) workplace referred to in subsection (3); or

(

b) facility referred to in subsection (4),

under that employers or operator's

control other than in a room designated for that purpose under subsection (3)

or (4).

(6) A room that is normally used or occupied by

non-smokers shall not be made a designated smoking room.

(7) A room that is normally used or occupied by

non e-cigarette users shall not be made a designated e-cigarette use room.

Signs required

(1) Employers,

owners and operators shall post and keep posted those signs that may be

prescribed under the regulations prohibiting smoking in a workplace, public

place or facility referred to in subsection 4(1).

(2) An employer or operator shall post signs that

identify designated smoking rooms and designated e-cigarette use rooms in a

facility referred to in subsection 4(2) and a workplace referred to in subsection

5(3).

Section 11 of the Act is amended by adding

immediately after paragraph (

a) the following:

(a.1) prescribing a product or device for the

purpose of the definition of e-cigarette;

(2) Paragraphs 11(

b) and (b.1) of the Act are

repealed and the following substituted:

(

b) respecting the independent ventilation of

designated smoking rooms and designated e-cigarette use rooms;

(b.1) designating a worksite as a remote worksite

for the purpose of subsection 5(3);

TOBACCO CONTROL ACT

SNL1993 cT-4.1

as amended

5. The

long title of the Tobacco Control Act is repealed and the following substituted:

AN ACT RESPECTING THE CONTROL OF THE SALE OF TOBACCO AND VAPOUR

PRODUCTS

Section 1 of the Act is repealed and the

following substituted:

Short title

1. This

Act may be cited as the Tobacco and

Vapour Products Control Act.

Section 2 of the Act is repealed and the

following substituted:

Definitions

2. In

this Act

(a) "accessory" means a product that may

be used in the consumption of tobacco and includes cigarette papers, a filter, a

pipe, a cigarette holder and a cigar clip;

(b) "e-cigarette" means

(

i) a product or device, whether or not it

resembles a cigarette, containing a power source and heating element designed

to vapourize an e-substance for inhalation or release into the air, or

(ii) a product or device prescribed in the regulations

similar in nature or use to a product or device described in subparagraph (i);

(c) "e-substance" means a solid, liquid

or gas

(

i) for use in an e-cigarette that, on being

heated, produces a vapour, regardless of whether the solid, liquid or gas

contains nicotine, and

(ii) that is not a controlled substance within the

meaning of the Controlled Drugs and

Substances Act ( Canada );

(d) "flavoured tobacco" means tobacco

that

(

i) has a characterizing scent or flavour, other

than tobacco, that is noticeable before or during use, or both,

(ii) by its packaging, labelling, advertising or

otherwise, is represented as being flavoured, or

(iii) is prescribed in the regulations as being

flavoured,

but does not include tobacco exempted by the

regulations;

(e) "inspector" means a person appointed

or designated under

section 3;

(f) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(g) "minor" means a person under the age

of 19 years;

(h) "non-tobacco shisha" means a

non-tobacco product containing herbs or other plants and materials intended for

use in a water pipe;

(i) "retailer" means a person who in the

ordinary course of business sells or supplies tobacco, vapour products or

non-tobacco shisha to another person;

(j) "tobacco" means tobacco in any form

in which tobacco is consumed and includes an accessory as defined in paragraph

(a);

(k) "vapour products" means

(

i) an e-cigarette,

(ii) an e-substance, or

(iii) a cartridge for or component of an

e-cigarette;

(l) "water pipe" means any ignited or

heated smoking equipment used to burn tobacco or non-tobacco substances or a

combination of tobacco and non-tobacco substances and draw the resulting smoke

through a liquid before it is inhaled; and

(m) "wholesaler" means a person who buys

tobacco, vapour products or non-tobacco shisha for resale to a person other

than a consumer.

Section 2.1 of the Act is repealed.

9. Subsection 3(2) of the Act is repealed and the

following substituted:

(2) An inspector may, at all reasonable times,

with or without the help of other persons, enter upon the business premises of

a retailer or wholesaler or upon the premises where the retailer's or

wholesalers tobacco, vapour products, non-tobacco shisha or records are kept

so long as it is reasonably necessary to determine compliance with this Act and

may

(

a) enter and inspect the business premises of a

retailer or wholesaler and examine and take copies of those records that may be

relevant to the enforcement of this Act or to a prosecution of a violation of

this Act;

(

b) investigate a complaint of a violation of this

Act and question a retailer or wholesaler or employee of a retailer or

wholesaler to determine whether a violation has occurred;

(

c) make test purchases or take samples of tobacco,

vapour products or non-tobacco shisha;

(

d) give directions to a retailer or wholesaler;

(

e) commence proceedings, which may be in the form

of a ticket issued under the Provincial

Offences Act, in respect of a violation of this Act;

(

f) record and report convictions under this Act;

and

(

g) ask a person who is on the premises for proof

of the person's age and make other inquiries of the person.

10. The Act is amended by adding immediately after

section 3.3 the following:

Flavoured tobacco

3.4 A

retailer or other person shall not offer for sale, sell, give or furnish,

directly or indirectly, flavoured tobacco.

11. Subsection 4(1) of the Act is repealed and the

following substituted:

Offence

(1) It

is an offence for a retailer or other person to sell, give or furnish, directly

or indirectly, tobacco, vapour products or non-tobacco shisha to a minor.

12. Subsection 4.1(1) of the Act is repealed and

the following substituted:

Sales prohibited

in certain places

4.1

(1) A

person shall not sell, or offer for sale, tobacco, vapour products or

non-tobacco shisha in

(

a) a pharmacy;

(

b) a temporary facility;

(

c) a facility operated by a regional health

authority established under paragraph 6(1)(

b) of the Regional Health Authorities Act ;

(

d) a personal care home as defined in the Personal Care Home Regulations ;

(

e) a long term care home;

(

f) a nursing home;

(

g) an assisted living facility;

(

h) a child care service operated under the Child Care Services Act ;

(

i) a school as defined in the Schools Act, 1997 ;

(

j) a university as defined in the Memorial University Act ;

(

k) a college as defined in the College Act, 1996 ;

(

l) a private training institution as defined in

the Private Training Institutions Act ;

(

m) a building, or that part of a building that is

owned, leased or operated by, the Government of Newfoundland and Labrador, an

agency of the Government of Newfoundland and Labrador ,

a Crown corporation or a municipality;

(

n) a recreational facility where the primary

activity is physical recreation, including

(

i) a bowling alley,

(ii) a fitness centre,

(iii) a gymnasium,

(iv) a swimming pool, and

(

v) an arena or rink;

(

o) a theatre or cinema;

(

p) a library;

(

q) an art gallery;

(

r) a museum;

(

s) an amusement park;

(

t) a video or games arcade; and

(

u) a place prescribed by regulation.

13. Sections 4.2 to 4.6 of the Act are repealed and

the following substituted:

No display

4.2

(1) In

this section, "tobacco", "vapour products" and

"non-tobacco shisha" include the package in which the tobacco, vapour

products or non-tobacco shisha are sold.

(2) A person shall not display or permit the

display of tobacco, vapour products or non-tobacco shisha in a place or

premises in which tobacco, vapour products or non-tobacco shisha are sold or

offered for sale

(

a) by a means or in a manner, including the use

of a countertop or wall display, that permits a customer in the place or premises

to view tobacco, vapour products or non-tobacco shisha before purchasing it; or

(

b) by a means or in a manner that makes tobacco,

vapour products or non-tobacco shisha visible to the public from the outside of

the place or premises.

(3) Notwithstanding subsection (2), it is not an

offence for a customer to view tobacco, vapour products or non-tobacco shisha

(

a) during the restocking of tobacco, vapour

products or non-tobacco shisha;

(

b) while a retailer is doing an inventory; or

(

c) when a retailer is receiving delivery of

tobacco, vapour products or non-tobacco shisha or unpacking tobacco, vapour

products or non-tobacco shisha.

No advertising or

promotional material

4.3 A

person shall not advertise or promote the sale or use of tobacco, vapour

products or non-tobacco shisha in a place or premises in which tobacco, vapour

products or non-tobacco shisha are sold or offered for sale on the exterior of

the place or premises or anywhere within the boundaries of the place or

premises.

Vending machine

4.4

(1) Sections

4.2 and 4.3 do not apply to a cigarette or vapour products vending machine.

(2) A person shall not sell or furnish or permit

the selling or furnishing of vapour products by means of a vending machine

except where the vending machine is in

(

a) a place to which the public does not

reasonably have access; or

(

b) a premises licensed under the Liquor Control Act that prohibits minors.

Permitted display

4.5 Notwithstanding

section 4.3, a person may in a place or premises in which tobacco, vapour

products or non-tobacco shisha are sold or offered for sale

(

a) display or make available for viewing upon

request, a sign that lists the types of tobacco, vapour products or non-tobacco

shisha for sale and their prices, if the sign complies with and is displayed in

the manner, place, form and size prescribed by the regulations;

(

b) display signs supplied by the minister; or

(

c) display a magazine or other publication that

is offered for sale and that contains tobacco, vapour products or non-tobacco

shisha advertising if the magazine or publication

(

i) is displayed in such a way that the tobacco, vapour

products or non-tobacco shisha advertisement is not visible to a customer

unless he or she is reading the magazine or publication, and

(ii) meets the requirements set out in the Tobacco Act ( Canada ) or the regulations made

under that Act.

Tobacconist shop

and vapour products shop

4.6

(1) In

this

section

(a) "tobacconist shop" means a place or

premises in which the only business conducted is the sale of tobacco; and

(b) "vapour products shop" means a place

or premises in which the only business conducted is the sale of vapour

products.

(2) Sections 4.2 and 4.3 do not apply to a

tobacconist shop or a vapour products shop.

(3) A tobacconist shop and a vapour products shop may

display its name outside the shop but advertisements, promotional material or

products shall not be

(

a) visible from the outside of the shop; or

(

b) located on the exterior of the shop.

(4) The owner or person in charge of a tobacconist

shop or a vapour products shop shall not permit a minor to enter the premises

unless accompanied by an adult.

14. Subsection 5(2) of the Act is repealed and the

following substituted:

(2) Where the minister directs that signs be

posted or displayed at public entrances, on the front of cigarette or vapour

products vending machines and elsewhere, those signs shall be visible,

unobstructed from view and in a form approved by the minister.

15. (1) Subsection 7(1) of the Act is repealed

and the following substituted:

Penalty

(1) Notwithstanding

the Provincial Offences Act , a

retailer guilty of an offence under this Act is liable on

summary conviction

(

a) for a 1st offence, to a fine of $500 and is prohibited

from selling the product to which the offence relates for 3 months;

(

b) for a 2nd offence, to a fine of $2,500 and is

prohibited from selling the product to which the offence relates for 6 months;

(

c) for a 3rd offence and for each subsequent

offence, to a fine of $5,000 and is prohibited from selling the product to

which the offence relates for 9 months; and

(

d) to a fine of $500 for selling the product to

which the offence relates while prohibited from doing so under paragraph (a),

(

b) or (c).

(2) Subsections 7(4) and 7(5) of the Act are

repealed and the following substituted:

(4) The Minister of Justice and Public Safety or a

person authorized by that minister may, either before or after the institution

of proceedings against a person for a violation of this Act, accept from the

person alleged to have been guilty of the violation payment of the fine for

that violation.

(5) Where a person pays a fine under subsection

(4) that person shall also be prohibited from selling the product to which the

offence relates for the period of time specified under subsection (1).

Section 9 of the Act is repealed and the

following substituted:

Removal of

product

(1) Where

a retailer is prohibited from selling tobacco under

section 3.1, 3.2 or 7, the

retailer shall arrange for the removal of all tobacco from his or her business

premises until the suspension is over.

(2) Where a retailer is prohibited from selling

vapour products under

section 7, the retailer shall arrange for the removal of

all vapour products from his or her business premises until the suspension is

over.

(3) Where a retailer is prohibited from selling

non-tobacco shisha under

section 7, the retailer shall arrange for the removal

of all non-tobacco shisha from his or her business premises until the suspension

is over.

(1) Paragraphs 10(a.1) and (a.2) of the

Act are repealed and the following substituted:

(a.1) respecting the manner, location, form, size

and content of signs permitted in or on a place or premises in which tobacco, vapour

products or non-tobacco shisha are sold or offered for sale;

(a.2) respecting places where the sale of tobacco,

vapour products or non-tobacco shisha are prohibited;

(a.3) prescribing a product or device for the

purpose of the definition of e-cigarette;

(a.4) prescribing types of tobacco as flavoured

tobacco for the purpose of the definition of flavoured tobacco;

(a.5) exempting types and flavours of tobacco from

the definition of flavoured tobacco;

(2) Section 10 of the Act is amended by adding

immediately after paragraph (

c) the following:

(c.1) respecting the notification of a wholesaler by

the minister that a retailer is prohibited under

section 7 from selling vapour

products or non-tobacco shisha;

NLR 1/02 Amdt.

18. Subsection 30(3) of the Lottery Licensing Regulations published under the Criminal Code is repealed and the

following substituted:

(3) It is an offence under the Tobacco and Vapour Products Control Act

to give tobacco, vapour products and non-tobacco shisha as a prize to a person

under the age of 19 years.

NLR 78/99 Amdt.

19. Paragraph 2(

i) of the Provincial Offences Ticket Regulations, 1999 published under the Provincial Offences Act is repealed and

the following substituted:

(

i) a provision of the Tobacco and Vapour Products Control Act or a regulation made under

that Act;

Commencement

20. Sections 10, 12 and 13 of this Act come into

force on July 1, 2017.

Queen's Printer