Joint Committee on Statutory Instruments Twelfth Report


APPENDIX 4

Memorandum from the Department of Health

TOBACCO PRODUCTS (MANUFACTURE, PRESENTATION AND SALE) (SAFETY) REGULATIONS 2002 (S.I. 2002/3041)

1. By its letter of 14th January 2003 the Committee asked the Department of Health for a memorandum on the following points:

(1) Paragraph (2) of regulation 11 provides that paragraph (1) (prohibition against supplying a tobacco product the packaging of which carries any descriptive text suggesting that the product is less harmful than another tobacco product) does not apply where a tobacco product is or is to be supplied for consumption outside the United Kingdom. Should not the underlined words have read "European Community"?

2. Regulation 11 implements article 7 of Directive 2001/37/EC ("the Directive") which applies in all Member States of the European Community. Each Member State will have its own implementing legislation or other provisions which will apply to products which are supplied in that State. Such provisions will not necessarily be identical, so the Department of Health considered it would be preferable for the Member State of destination to determine whether there has been a breach. Furthermore, there would be practical difficulties, for enforcement authorities and courts in the United Kingdom, since any descriptive text may be in the language or languages of the Member State of destination, and it would be necessary to determine not only the meaning of that text, but the likelihood of its producing a certain effect upon readers of that language. For that reason, it limited the prohibition, breach of which gives rise to the possibility of enforcement proceedings, to products which are supplied for consumption here.

(2) Paragraph (2) of regulation 14 provides that, except in relation to products intended for the travel retail sector, paragraph (1) (prohibition against supplying any tobacco product in respect of which the producer has not complied with any requirement of regulations 4 to 10 which relates to that product) does not apply where a tobacco product is or is to be supplied for consumption outside the United Kingdom. Explain the effect of paragraph (2). Should the underlined words have read "European Community"?

3. The effect of paragraph (2) is to ensure that tobacco products are not subject to enforcement proceedings in the United Kingdom for breach of these Regulations whilst there are differing requirements in the implementing legislation in the Member State of destination, with regard to the requirements for health warnings and yield statements. Another Member State may have different provisions for implementing the same provisions of the Directive, including different requirements for example, as to size of warnings, positioning or font size, so that non-compliance with the United Kingdom Regulations does not necessarily mean a breach of the Directive. In particular, pursuant to article 5(5) of the Directive, if a Member State has more than one official language, the overall area of the warnings must be larger than in a Member State such as the United Kingdom where there is only one. The United Kingdom authorities are in a position to monitor whether a product complies with the requirements of our own Regulations, but not those of other Member States. Paragraph (2) of regulation 14 therefore limits the prohibition, breach of which gives rise to the possibility of enforcement proceedings, to products supplied for consumption in the United Kingdom. This follows the same model for enforcement as the Tobacco Products Labelling (Safety) Regulations 1991 (S.I. 1991/1530) revoked by these Regulations (see regulation 11(2)).

4. (The mention of products in the travel retail sector arises because they are products supplied in the United Kingdom and clearly should be governed by our Regulations, but by virtue of the fact that they are taken out of the United Kingdom immediately following purchase, might be argued to be products supplied for consumption elsewhere.)

20 January 2003

Further memorandum from the Department of Health

TOBACCO PRODUCTS (MANUFACTURE, PRESENTATION AND SALE) (SAFETY) REGULATIONS 2002 (S.I. 2002/3041)

1. By its letter of 28th January 2003 the Committee asked the Department of Health for a memorandum on the following point:

Paragraph (2) of regulation 11 limits the prohibition in paragraph (1) to tobacco products which are supplied for consumption in the United Kingdom. If the product is supplied in the United Kingdom to a person for consumption in another Member State, the prohibition in paragraph (1) does not apply. If the implementing legislation in that State contains a provision corresponding to regulation 11, the prohibition in that legislation would not apply if that person personally uses the product there: the product was not supplied to him, nor has he supplied that product, in that State. This result seems to be contrary to Article 7 of the Directive, since the effect is to permit a tobacco product (the packaging of which contains the prohibited description) to be marketed in the Community. Does the Department agree with this view? If so, explain how regulation 11 has the effect of adequately implementing Article 7.

2. Paragraph (2) of regulation 11 applies: 1) to wholesale supplies of tobacco products, in relation to which, for the reasons set out the Department's memorandum of 20th January 2003, it is appropriate to rely on the legislation of the Member State of destination; and 2) to retail sales, the subject of this question. The Department has proceeded on the basis that a tobacco product sold to an individual in the United Kingdom will usually be consumed within the United Kingdom. Furthermore, a seller of tobacco products (other than by wholesale) would be unable to tell whether they would be consumed in or outside the United Kingdom and therefore would only supply products which comply with the Directive and Regulations. Even if he could know where products would be consumed, it would be impracticable to have two lines of stock. In the circumstances, we believe that in practice there will be no breach.

13 February 2003


 
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