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Home > Seanad Eireann debate. Public Health (Tobacco) (Amendment) Bill 2013: Second Stage

[Oireachtas] Seanad Eireann debate. Public Health (Tobacco) (Amendment) Bill 2013: Second Stage. (18 Apr 2013)

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Minister for Health (Deputy James Reilly): I welcome the opportunity to speak on the Public Health (Tobacco) (Amendment) Bill 2013 and to outline the background to the amendments being introduced. As a public health measure, Ireland has for many years set a mandatory level below which the price of cigarettes could not be lowered. For over 30 years an arrangement was in place between the Department of Health and Irish tobacco companies whereby a weighted average price was calculated for cigarettes based on sales volumes data and retail prices to year end each year. However, in 2010 the European Court of Justice ruled that by imposing minimum retail prices for cigarettes, Ireland had failed to fulfil its obligations under article 9(1) of Council Directive 95/59/EC. As a consequence of the court judgment, Ireland can no longer set a mandatory level below which cigarette prices cannot be lowered, as this would be restricting the freedom of industry to make effective use of competitive advantage. The Commission indicated that infringement proceedings would be initiated unless Ireland took steps to comply with the court's judgment.

As a result of this ruling, my Department informed the tobacco industry that the practice of setting floor prices for cigarettes each year would cease. In addition Ireland advised the Commission that new regulations would be introduced to remedy the infringement. Draft regulations were developed to remove the price setting provisions currently in our tobacco regulations. During this process, and after a considerable period of time, the Commission indicated that in addition to the new regulations the primary enabling tobacco legislation would also have to be amended to meet with the requirements of the court judgment. The purpose of amending the primary legislation would be to remove the legal basis for the fixing of a minimum price. In order to comply with the court judgment, therefore, new regulations were to be devised and the primary tobacco legislation was to be amended. 

It is important to state that I have completed the first step in complying with the court's ruling.

Last December I signed regulations, the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion)(Amendment) Regulations 2012, which had the effect of removing the regulatory basis for the fixing of a minimum price. On examination of the tobacco legislation, it appeared tht both the Public Health (Tobacco) Act 202 and the Tobacco Products (Control of Advertising, Sonsorshp and Sales Promotion) Act 1978 required mendment to satisfy the court judgment. This Bill ahieves this in that i removes the legal basis for the fixing o a minimum price. However, in amending the relevant sections of th Act it isimportant that I and future Ministers retin powers to introduce regulations relating to tobcco saes promotion activities. A provision in te Bill allows for the development of regulations in this regard. More specifically, it sets out some of the types of promotions to be included in these regulations such as prohibiting buy-three-for-two, happy hour promotions or buy-one-get-one-free offers. The issue of sales promotion activities falls outside of the European Court of Justice ruling because it does not relate to minimum or maximum pricing of tobacco and was not, therefore, a direct requirement of the European Commission.

Section 1 amends section 38 of the Public Health (Tobacco) Act 2002 by removing any perceived price fixing provision. However, it retains the power to make regulations in respect of activities which are intended or are likely to promote the sale of tobacco products. Specifically, the new section 38(10) gives the Minister for Health the power to make these regulations.

The new section 38(10A) sets out some of the provisions which may be included in these regulations, namely, the prohibition of the promotion and sale of tobacco products at a reduced price or free of charge on the purchase of another tobacco product or other products or services. This covers the types of promotions mentioned - buy-three-for-two, happy hour promotions or buy-one-get-one-free offers. It also covers the prohibition of the promotion and sale of tobacco products at a reduced price or free of charge for a limited period of time on any day. This prohibits happy hour type promotions.

The new section 38(11) makes it an offence for someone to contravene the regulations made under section 38(10). In this context, it is important to state my Department, in consultation with the Health Service Executive, is continuously monitoring the ever evolving marketing tactics of the tobacco industry. As these evolve, so too must our legislative and policy framework.

I am sorry the young men and ladies from France have left the Visitors Gallery. It is important to remind ourselves that 700,000 Europeans, including 5,200 Irish citizens, die every year from tobacco related illnesses. It must be remembered that the tobacco companies must replace these customers with new ones. Whom do they go after? They go after our children. Why can I say this with such conviction? Irish surveys have shown that 78% of smokers started when they were under 18 years of age. The figure is the same in the rest of Europe. How do they attract young people to smoking? Most young people will say they started smoking because it looked cool. For the tobacco companies, their nirvana is getting people addicted after smoking 20 fags. A person under the age of 18 years is a minor and the State has a duty to protect him or her. If one is addicted before reaching 18 years, what choice does one have after passing that age? This is one of the most addictive substances known and would not be legalised if it were discovered today. I intend to introduce a Bill to introduce plain cigarette packaging, as was done in Australia. That will tackle that form of advertising. Smoking causes cancers and pain, damaging the lungs, heart and throat.

I have been asked by the industry not to refer to it as evil. How else can one describe an industry that produces and promotes an addictive product to children which will kill one in two of them? I intend to wage war on this industry because it is killing more people in Europe every year than anything else. If one looks at the cumulative number of lives lost in Europe, one is looking at a greater number of people dying from smoking than were killed in the Second World War. No one can talk about a nanny state. Adults can do as they wish, but I, as Minister, and the Legislature have a responsibility to protect children and that we will do.

Section 2 repeals provisions contained in section 2 of the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Act 1978. It also revokes regulation No. 17 in the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Regulations 1991. These provisions contain price fixing elements which are seen to be in contravention of the relevant European Council directive. In this regard, they were deemed to be restricting the freedom of industry to make effective use of competitive advantage and must be removed. I have asked the Department to investigate how we can address issues of public health importance being dominated by a competition directive. It should never be a case of jobs over lives. The countries that grow tobacco should be offered incentives to become involved in other industries.

Specifically, section 2(1) repeals sections 2(1 )(c), 2(2)(h) and (2)(2)(i) of the 1978 Act. Section 8 of the Public Health (Tobacco) Act 2002, as amended by section 4 of the Public Health (Tobacco)(Amendment) Act 2004, sets out the provision for the repeal of the 1978 Act. However, it is important to note that this provision has not yet commenced and the 1978 Act has not yet been repealed.

Section 2(2) is a standard saver provision. Section 2(3) revokes regulation No. 17 in the Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Regulations 1991. This regulation had already been amended, while regulation No. 16 was deleted by the regulations I signed in December 2012 to remove any price fixing provisions from them. The revocation outlined is to allow my Department to introduce new regulations, mentioned previously, relating to sales promotion activities. This will ensure there will be no overlap of provisions.

Section 3 is a standard provision. It provides for the Short Title, collective citation, construction and commencement.

As a doctor with decades of experience, I have seen at first hand the damage caused to the health of those who become addicted to tobacco. Tobacco use is the leading cause of preventable deaths in Ireland. Each year more than 5,200 Irish people die prematurely from diseases caused by tobacco use, while over 700,000 Europeans die annually from tobacco-related diseases. Smoking is the largest avoidable health risk in Europe; it causes more problems than alcohol, drug abuse and obesity. A study commissioned by the European Union estimates that in Ireland health expenditure on treating smoking related illnesses is approximately €500 million, while approximately €170 million is lost because of absenteeism and long-term incapacity due to smoking….

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