Tobacco Advertising and Promotion Act 2002 etc. (Amendment) Regulations 2006
| Jurisdiction | UK Non-devolved |
| Citation | SI 2006/2369 |
| Year | 2006 |
2006 No. 2369
CONSUMER PROTECTION
electronic communications
Tobacco Advertising and Promotion Act 2002 etc. (Amendment) Regulations 2006
Made 24th August 2006
Laid before Parliament 7th September 2006
Coming into force 28th September 2006
The Secretary of State for Health makes these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 19721.
The Secretary of State has been designated2for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to the direct or indirect promotion of tobacco products and in relation to information society services.
Citation, commencement and interpretation
1.—(1) These Regulations may be cited as the Tobacco Advertising and Promotion Act 2002 etc. (Amendment) Regulations 2006 and shall come into force on 28th September 2006.
(2) In these Regulations “the Act” means the Tobacco Advertising and Promotion Act 20023.
Amendment of section 2 of the Act
2.—(1) Section 2 (prohibition of tobacco advertising) of the Act is amended as follows.
(2) For subsection (4) substitute—
“4 A service provider established in the United Kingdom who, in the course of providing information society services, does anything in an EEA State other than the United Kingdom which, if done in the United Kingdom, would constitute an offence under subsection (1) or (2) is guilty of an offence.”
Advertising by information society services
3. After section 3 (advertising: newspapers, periodicals etc) of the Act insert—
“Advertising: information society services
3A.—(1) This subsection applies where by means of an information society service, provided in the course of a business, a tobacco advertisement is published—
(a)
(a) in the United Kingdom, or
(b)
(b) in an EEA State other than the United Kingdom, by a service provider established in the United Kingdom.
(2) Where subsection (1) applies—
(a)
(a) any proprietor of the information society service or any editor of the information contained in the information society service is guilty of an offence, and
(b)
(b) any person who (directly or indirectly) procured the inclusion of the tobacco advertisement in the information contained in the information society service is guilty of an offence.”.
Amendment of section 4 of the Act
4.—(1) Section 4 (advertising: exclusions) of the Act is amended as follows.
(2) In subsection (1), for the words “section 2 or 3” substitute “section 2, 3 or 3A”.
(3) For subsection (1)(c) substitute—
“(c)
“(c) if it is contained in a publication (other than in an in-flight magazine)–
(i) which is printed in a country which is not an EEA State, and
(ii) whose principal market is not one or more of the EEA States (or any part of them).”.
(4) After subsection (1)(c), insert—
“(d)
“(d) if it is published by means of an information society service by a person who does not carry on business in an EEA State and it is not intended to be accessed principally by persons in one or more EEA States (or any part of them).”.
(5) After subsection (1), insert—
“1A Subsection (1)(b) applies to a communication made by means of an information society service only if the request was made—
(a) by means of an information society service which does not advertise any tobacco product to persons—
(i) who have not made such a request, or
(ii) who have not initiated a process by which a tobacco product may be purchased by means of that service; or
(b) without using an information society service.
1B The supply of information to an individual is not a tobacco advertisement if—
(a) an information society service provides a means by which tobacco products may be purchased which includes the provision of information about a tobacco product, and
(b) the information becomes available only after the individual has initiated the process of making the purchase.”.
(6) In subsection (3), omit the words “on a website”.
(7) After subsection (4), insert—
“5 The Schedule has effect in relation to the liability of information society service providers.”.
Amendment of section 5 of the Act
5.—(1) Section 5 (advertising: defences) of the Act is amended as follows.
(2) In subsection (1), for the words “or section 3(a) or (b)” substitute “, section 3(a) or (b) or section 3A(1)(a) or (b)”.
(3) In subsection (3), for the words “or 3(a) or (b)” substitute “, 3(a) or (b) or 3A(1)(a)”.
(4) After subsection (3), insert—
“3A A person does not commit an offence under section 2(4) or 3A(1)(b) if he did not know, and had no reason to suspect, that the tobacco advertisement would be published in another EEA State.”.
(5) In subsection (5)—
(a)
(a) after paragraph (b), omit the word “or”; and
(b)
(b) for paragraph (c), substitute—
“(c)
“(c) in relation to transmission by means of information society services, he did not carry on business in an EEA State at the relevant time, or
(d)
(d) in relation to transmission by any other means of electronic transmission, he did not carry on business in the United Kingdom at the relevant time.”.
(6) After subsection (5), insert—
“5A A person does not commit an offence under section 2(4) of distributing or causing the distribution of a tobacco advertisement if—
(a) he was unaware that what he distributed or caused to be distributed was, or contained, a tobacco advertisement, or
(b) having become aware of it, it was not reasonably practicable for him to prevent its further distribution.”.
Amendment of section 8 of the Act
6.—(1) Section 8 (displays) of the Act is amended as follows.
(2) In subsection (2), for the words “the United Kingdom”, in the first place they appear, substitute “an EEA State”.
Amendment of section 16 of the Act
7.—(1) Section 16 (penalties) of the Act is amended as follows.
(2) After subsection (1), insert—
“1A A person guilty of an offence under section 2(4) or 3A(1), is liable—
(a) on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding the statutory maximum, or both, or
(b) on conviction on indictment to imprisonment for a term not exceeding 2 years, or a fine, or both.”.
Amendment of section 21 of the Act
8.—(1) Section 21 (interpretation) of the Act is amended as follows.
(2) Section 21 is renumbered as subsection (1) of that section.
(3) In that provision, in the appropriate place insert—
““the Directive” means Directive 2000/31/ECof the European Parliament and of the Council of 8th June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);
“EEA State” means a member State, Norway, Iceland or Liechtenstein;
“information society services”–
(a) has the meaning set out in Article 2(a) of the Directive (which refers to Article 1(2) of Directive 98/34/ECof the European Parliament and of the Council of 22nd June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 98/48/ECof 20th July 1998); and
(b) is summarised in recital 17 of the Directive as covering ‘any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service’;
“service provider” means a person providing an information society service;”.
(4) After that provision insert—
“2 For the purposes of this Act—
(a) an establishment, in connection with an information society service, is the place at which the service provider effectively pursues an economic activity for an indefinite period;
(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute that place as an establishment of the kind mentioned in paragraph (a);
(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment where the service provider has the centre of his activities relating to the service,
and references to a person being established in any place must be construed accordingly.”.
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