Tobacco Handling, Display and Promotion

Policy

Category: Tobacco Enforcement
Subject: Tobacco Handling, Display and Promotion
Division: N/A
Policy Number: CA.85.01.102
Effective Date: February 15, 2013

POLICY STATEMENT

It is the policy of Wellington-Dufferin-Guelph Public Health (WDGPH), Health Protection Division, to ensure tobacco vendor compliance with respect to the display, storage, handling, promotion and distribution of tobacco products.  The compliance strategy employs a balance of inspection, vendor education and progressive enforcement.  Enforcement activities are guided by the Smoke-Free Ontario Act (SFOA), the Provincial Offences Act, the Tobacco Act, the Ontario Public Health Standards enacted pursuant to the Heath Protection and Promotion Act, the SFOA Tobacco Compliance Protocol (2008) and enforcement directives previously issued by the Ministry of Health and Long-Term Care.

SCOPE

This policy applies to all WDGPH Tobacco Enforcement Officers and Public Health Inspectors in the Health Protection Division.

REFERENCES AND RELATED FORMS, POLICIES AND PROCEDURES

Corresponding Procedure:  CA.85.02.102 Tobacco Handling, Display and Promotion
Smoke-Free Ontario Act (SFOA)
Provincial Offences Act
Tobacco Act

Ontario Public Health Standards
Heath Protection and Promotion Act
SFOA Tobacco Compliance Protocol (2008)

APPROVED BY

Rob Thompson 


Procedure

Category: Tobacco Enforcement
Subject: Tobacco Handling, Display and Promotion
Division: N/A
Procedure Number: CA.85.02.102
Effective Date: February 15, 2013

PROCEDURE

Storage, Handling and Promotion of Tobacco Products
  1. An inspection for the purpose of ensuring compliance of the storage/display, handling and promotion provisions under the Smoke-Free Ontario Act will include the following types of inspections:
  • Ensuring that tobacco products are not sold through product association, enhancement, or promotional material, subject to any exemptions provided through Ministry of Health and Long-Term Care (MOHLTC) policies;
  • Reviewing to see if there are signs referring to sale of tobacco products and if so only contain information about tobacco products and the product price and further that:
    • The size of the sign does not exceed 968 square centimetres (which approximately equals 150 square inches);
    • Sales signs are only black text with a white background;
    • The text of a sign is not be visible from outside the retail establishment; and
    • A retailer does not post a more than three signs referring to tobacco products and/or tobacco product accessories.
  1. For the purposes of Tobacco Product Storage as it pertains to compliance with the provisions for the Tobacco Retail Display Ban subsection 3.1(2):
  • Proprietors are responsible for ensuring that tobacco is not displayed or stored in a manner that will permit a consumer to view tobacco prior to purchase;
  • Proprietors must be diligent in ensuring staff understand and are compliant with this provision;
  • A purchase of tobacco product transaction includes only a brief time between opening and closing a storage device and transferring the product to a consumer and does not constitute a display for the purposes of the tobacco display ban;
  • Any action, intentional or unintentional, by a person that demonstrates tobacco products contained in a storage device, which may otherwise be an acceptable device, in order to show product availability would be considered an offence of the Act;
  • Proprietors continue to be responsible for ensuring compliance with all other requirements of the Act, including the prohibition on promoting or enhancing tobacco products; and
  • Apart from third bullet above, proprietors are responsible for ensuring that tobacco products are not displayed to a potential consumer while re-stocking, conducting inventory checks, or any other process that may require the tobacco storage device to be opened and tobacco products viewed.
  1. Upon the initial inspection:
  • A vendor is educated and offered explanatory materials where appropriate;
  • If a vendor is found in non-compliance but takes corrective action and achieves compliance during the course of the inspection, it is recommended that additional inspections be conducted to ensure compliance;
  • For the purposes of data collection, the vendor is ultimately noted as compliant if corrections are satisfactory by the end of the inspection;
  • If the vendor does not take corrective action during the inspection, the vendor is issued a verbal and/or written warning and re-inspected within five working days or as deemed prudent and appropriate in the circumstances;
  • If within five working days (or as otherwise determined appropriate) the re-inspection demonstrates non-compliance, the vendor is charged; and
  • If after an initial charge or conviction the vendor remains non-compliant, progressive enforcement must be initiated.
Places of Entertainment
  1. A Tobacco Enforcement Officer (TEO) will visit a place of entertainment and conduct an inspection. The purpose of this inspection is to determine if a proprietor or employer has employed or authorized a person to promote tobacco or to promote the sale of tobacco. For example, a proprietor would not be permitted to employ an individual to circulate within the place of entertainment to promote cigarettes or tobacco products in general or a specific brand.
  2. Upon the initial inspection:
  • An employer or proprietor is educated and offered explanatory materials and signage where appropriate;
  • If an employer or proprietor is found in non-compliance but takes corrective action and achieves compliance during the course of the inspection, a re-inspection is not required;
  • If the employer or proprietor does not take corrective action during the inspection, the employer or proprietor is charged; and
  • If after an initial charge or conviction the employer or proprietor remains non-compliant, progressive enforcement must be initiated.
Packaging Requirements
  1. If an inspection finds non-compliance with respect to the packaging requirements specified in Section 5 (1) (a) and 5 (1) (b) and the requirements set out in the Tobacco Act (Canada) Regulation, a referral will be made. There are two potential places for referral if a contravention of subsection 5(1)(a) or ss.5(1)(b) is found:
  • If the matter is based in an error or omission in health warning labels and packaging specifications pursuant to the Tobacco Act Regulation and may be handled at the level of production/importation, the referral shall be made to Health Canada, at telephone 613-248-8375 or fax at 613-248-8695; and
  • If the matter is more appropriately within the purview of the Tobacco Tax Act, the referral shall be made to the Ministry of Revenue by fax or email using the referral form (attached). 
  1. If an inspection finds non-compliance with respect to section 5(2), in which cigarettes are sold in packages less than 20:
  • A vendor is educated and provided with explanatory materials and the vendor is charged; and
  • If after an initial charge or conviction the vendor remains non-compliant, progressive enforcement must be initiated. 
Signs

Age Restriction and Health Warning Sign/Government I.D. Sign:

  1. A person who sells tobacco at retail shall post signs at any location where tobacco is sold or offered for sale or supply. The sign must be clearly visible to the person who sells or supplies the tobacco and to the person whom the tobacco is sold or supplied to.
  2. Upon the initial inspection:
  • A vendor is offered educational guidance and explanatory materials including signage where appropriate;
  • If a vendor is found in non-compliance but takes corrective action and achieves compliance during the course of the inspection, a re-inspection is not required;
  • If a vendor does not take corrective action during the inspection, the vendor is issued a verbal and/or written warning and re-inspected within five days;
  • If within five days the re-inspection demonstrates non-compliance, the tobacco vendor is charged; and
  • If after an initial charge or conviction the vendor remains non-compliant, progressive enforcement must be initiated.
Tobacconist
  1. Retailers who sell specialty tobacco products may apply for a display ban exemption. The exemption does not apply to cigarettes.
  2. A retailer can register as a tobacconist with the MOHLTC if specialty tobacco products account for at least 50 per cent of the establishment’s sales in the previous 12 months. If the retailer has been in operation for less than a year, at least 50 per cent of the retailer’s total inventory purchases must consist of specialty tobacco products.
  3. Being registered, a Tobacconist is permitted to:
  • Display specialty tobacco products by means of a countertop display;
  • Display speciality tobacco products when the general display prohibition on tobacco products comes into effect on May 31, 2008; and
  • Allow purchasers to handle specialty tobacco products prior to their purchase.
  1. Under the regulation, the tobacconist is exempted from the above display provisions subject to the following conditions:
  • Minors (younger than age 19) shall not be permitted to enter a tobacconist unless accompanied by an adult who is at least 19 years of age or older;
  • Customers must enter the establishment only from outdoors or indoor common areas; and
  • The tobacconist must not be a thoroughfare.
  1. All other provisions of the Smoke-Free Ontario Act will apply to a Tobacconist, including restrictions on the promotion of tobacco products and required Age Restriction and Health Warning and Government I.D. signs for posting.
  2. Upon the initial inspection, if a tobacco vendor provides a copy of the registration letter from the MOHLTC (previously the Ministry of Health Promotion) indicating he/she is registered as a tobacconist:
  • The tobacconist is to be offered educational guidance and provided with explanatory materials where appropriate;
  • If a tobacconist is found in non-compliance but takes corrective action and achieves compliance during the course of the inspection, a re-inspection is not required;
  • If a tobacconist does not take corrective action during the inspection, the tobacconist is issued a verbal and/or written warning and re-inspected within five working days or as deemed prudent and appropriate in the circumstances;
  • If within five working days (or as otherwise determined as above) the re-inspection demonstrates non-compliance, the tobacconist is charged; and
  • If after an initial charge or conviction the tobacconist remains non-compliant, progressive enforcement must be initiated.
  1. If upon an initial inspection, a tobacco vendor claims he/she has received a registration letter from the MOHLTC (previously the Ministry of Health Promotion) and is exercising their exemption from the display and handling provisions of the Act and Regulation, but cannot provide the Ministry issued document to verify this:
  • The tobacco vendor is educated, provided with explanatory materials and is informed they will be re-inspected in 24 hours or as is otherwise prudent and appropriate in the circumstances, at which time he/she must produce this document;
  • If in 24 hours (or as otherwise determined as above) the document is not produced for review, the tobacco vendor is charged; and
  • If after an initial charge or conviction the vendor remains non-compliant, progressive enforcement must be initiated.
  1. If upon an initial inspection, a tobacco vendor indicates that he/she would like to apply to the MOHLTC for a tobacconist exemption:
  • The tobacco vendor is educated, provided with explanatory materials which includes information on how to register as a tobacconist;
  • The tobacco vendor is informed he/she must comply with the display and handling provisions under section 3.1 until he/she receives the registration letter from the MOHLTC;
  • The TEO will conduct a re-inspection in ten working days or as deemed prudent and appropriate in the circumstances to ensure compliance with section 3.1;
  • If the re-inspection demonstrates non-compliance with this section, the tobacco vendor is charged. 
 Wholesalers and Distributers
  1. Inspections for wholesalers and distributors will be handled in accordance with the section ‘Storage, Handling and Promotion of Tobacco Products’.
  2. Upon the initial inspection:
  • The wholesaler or distributor is offered educational guidance and explanatory materials and signage where appropriate; 
  • If a wholesaler or distributor is found in non-compliance but takes corrective action and achieves compliance during the course of the inspection, a re-inspection is not required;
  • If a wholesaler or distributor does not take corrective action during the inspection, the wholesaler or distributor is issued a verbal and/or written warning and re-inspected within five working days or as deemed prudent and appropriate in the circumstances;
  • If within five working days (or as otherwise determined in paragraph iii above) the re-inspection demonstrates non-compliance, the wholesaler or distributor is charged; and
  • If after an initial charge or conviction the wholesaler or distributor remains non-compliant, progressive enforcement must be initiated.
Frequency of Inspections
  1. Notwithstanding other inspections that are conducted for the purposes of ensuring compliance with other sections of the Act, this shall include:
  • Annual inspections of all tobacco vendors to ensure compliance with Sections 3, 5, 6, and 9 of the Act;
  • Annual inspections of all tobacco vendors to ensure compliance under Sections 3.1 and 3.2 of the Act and the Regulation pursuant to the section;
  • Additional inspections as are necessary to ensure correction of non-compliance observed during previous inspections; and
  • Investigate and act upon all complaints as necessary to ensure correction of non compliance observed under the Act and Regulations
Data Collection and Handling
  1. Wellington-Dufferin-Guelph Public Health (WDGPH) will collect and maintain a record of every inspection conducted, in addition to the TEO’s notes.  The data will be maintained in accordance with privacy laws and WDGPH will hold a record of every inspection activity conducted for the purpose of determining compliance with the Smoke-Free Ontario Act, including education visits, inspections, warnings issued and charges laid.
  2. WDGPH will:
  • Provide required inspection and enforcement data using the mobile and/or web-base applications provided by the TIS synchronizing daily; and
  • Respond to MOHLTC data collection requests within the specified time lines.

REFERENCES AND RELATED FORMS, POLICIES AND PROCEDURES

Corresponding Policy:  CA.85.01.102 Tobacco Handling, Display and Promotion
Smoke-Free Ontario Act (SFOA)
Provincial Offences Act
Tobacco Act
Tobacco Tax Act

Ontario Public Health Standards
Heath Protection and Promotion Act
SFOA Tobacco Compliance Protocol (2008)

APPROVED BY

Rob Thompson