Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]

TOBACCO PLAIN PACKAGING BILL 2011

                                  2010-2011




               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                   SENATE




                      TOBACCO PLAIN PACKAGING BILL 2011







                    SUPPLEMENTARY EXPLANATORY MEMORANDUM




             Amendments to be Moved on Behalf of the Government











     (Circulated by the authority of the Minister for Health and Ageing,
                          the Hon Nicola Roxon MP)
                      TOBACCO PLAIN PACKAGING BILL 2011

OUTLINE

The Tobacco Plain Packaging Bill 2011 is a crucial part of the Australian
Government's comprehensive suite of tobacco control measures.  The Bill
will remove one of the last forms of tobacco advertising, the retail
packaging of tobacco products, by restricting or prohibiting tobacco
industry logos, brand imagery, colours and promotional text other than
brand and product names in a standard colour, position, font style and
size, so as to prevent them from being used as design features to detract
attention from health warnings, or otherwise to promote the use of tobacco
products.

The Government is introducing amendments to the commencement provisions of
the Bill following delays to Parliament's consideration of the Bill, to
ensure that there is sufficient time for the industry to comply before the
penalty provisions commence.

The first amendment revises the commencement dates of the Bill such that,
except for clauses 17 to 27, provisions which previously were expressed to
commence on 1 January 2012 will now commence on Royal Assent to the Bill,
with offences and civil penalties for domestic manufacturing of non-
compliant products and packaging commencing on 1 October 2012 (previously
20 May 2012) and for the sale of non-compliant products and packaging
commencing on 1 December 2012 (previously 1 July 2012).  This amendment
delays commencement of the Bill to take account of delays in its passage
through Parliament, and affords an additional period of time for
manufacturers of products and packaging to adjust their production
processes, for flush-through of tobacco products, and to aid retailers in
stock management.

Clauses 17 to 27 were previously set to commence on 1 January 2012. The
amendments provide for those clauses to commence with the first tranche of
offences and civil penalty provisions, on 1 October 2012.  This amendment
is intended to avoid any possible implication that clauses 18 to 27, and
the simplified outline at clause 17, were intended to give rise to legal
obligations independently of Chapter 3 (Offences) and Chapter 5
(Enforcement) of the Bill.

The same purpose is served by the insertion of a new clause 27A, which
makes clear that clauses 18 to 27 have no legal effect other than
specifying requirements for the purposes of the definition of 'tobacco
product requirement' in clause 4(1).

The final amendment is to address a technical implementation issue.  This
is an amendment to clause 18(3)(c) to allow for rounded corners to be used
on the inside lip of the cigarette packs.  Some cigarette manufacturers
state that requiring the inside lip of cigarette packs to have only
straight edges, as proposed in the original drafting of clause 18(3)(c),
would necessitate some retooling of machinery, which would carry expense
and be difficult to achieve within the commencement dates originally
proposed in the Bill.

In response to this concern, the amendment allows rounded corners on the
inside lip so that machines do not need to be retooled for this purpose.
The clause will continue to provide that the lip may not be otherwise
bevelled, shaped or embellished in any way, so as to prevent the inside lip
being used as a decorative feature.

These amendments do not alter the Bill's approach to plain packaging of
tobacco products.

FINANCIAL IMPACT STATEMENT
The amendments outlined will not cause a significant variation in financial
impact of the Bill.
                      TOBACCO PLAIN PACKAGING BILL 2011

NOTES ON CLAUSES

Amendment 1 - Clause 2 - Commencement
This clause amends clause 2 to insert a new table indicating the
commencement of the provisions of the Bill.  Different parts of the Bill
are still scheduled to commence on different dates:
    . On the day the Act receives Royal Assent, the provisions of the Act
      that give the short title of the Act and provide for commencement will
      commence.
    . Other preliminary provisions of the legislation; including the
      provisions that allow the authorised investigative and enforcement
      officer roles to be established will now commence on the day the Act
      receives Royal Assent.
    . On 1 October 2012, the provisions creating offences and civil
      penalties relating to packaging and manufacturing non-compliant
      tobacco products as well as manufacturing non-compliant retail
      packaging will commence, along with the investigation and enforcement
      powers of authorised officers.  These provisions previously were
      expressed to commence on 20 May 2012.
    . In addition, the provisions in Chapter 2 that specify the 'tobacco
      product requirements' for tobacco products and their retail packaging
      will also commence on 1 October 2012. The offence and civil penalty
      provisions deal with non-compliance with these requirements.
    . On 1 December 2012, the provisions creating offences and civil
      penalties relating to selling and purchasing non-compliant tobacco
      products and tobacco products in non-compliant packaging will
      commence.  These provisions previously commenced on 1 July 2012.

As outlined above, these amendments are proposed to address the delay to
Parliamentary consideration of the Bill, and to ensure that there is
sufficient time for the industry to comply before the penalty provisions
commence.

The revised implementation dates provide for a two month "flush-through"
period, during which manufacture and packaging of non-compliant product in
Australia is prohibited but retail sales of such product can continue.

Consistent with the earlier specification of commencement dates,
information gathering and enforcement powers will come into effect on
commencement of the first tranche of offence and civil penalty provisions,
on 1 October 2012 to allow the Bill to be effectively administered.
Various other administrative provisions will commence on Royal Assent.

The provisions specifying tobacco product requirements will move from
commencing on 1 January 2012 to commencing with the first offences and
civil penalty provisions on 1 October 2012.  This is to make it clear that
these provisions are not intended to have legal effect before the related
offence and civil penalty provisions commence.


Amendment 2 - Clause 18 - Physical features of retail packaging
Clause 18 provides that no decorative ridges, embossing, bulges,
irregularities of shape or texture, or other embellishments, including
coloured glues or adhesives, can be used on tobacco packaging. Clause 18
also outlines particular requirements specific to cigarette packs and
cartons, including that the inside lip of the cigarette pack must have
straight edges.  These requirements are intended to ensure that, as far as
possible, the appearance of cigarette packs is standardised, and that
novelty shapes and forms are not used to increase consumer interest in the
packaging or detract attention from health warnings.

Clause 18(3)(c) is amended to permit rounded corners on the inside lip of
cigarette packs.  This amendment is intended to allow the inside lip of
cigarette packs to be rounded to the extent necessary for automated
manufacture of cigarette packaging using existing machinery. This avoids
the need for existing machinery to be retooled which would make compliance
with the commencement dates that had been proposed in the Bill difficult,
and carry some expense.

This amendment is not intended to allow any additional innovation in
packaging shape and opening.  Instead, it permits the existing standard
inside lip to continue to be used, in order to ensure that compliance with
this requirement will not require modification or retooling of existing
standard machinery.

Clause 18(3)(c) will still provide that the inside lip may not be bevelled,
otherwise shaped or embellished in any way.  This means that the inside lip
may not be designed so as to be used as a decorative element.

Amendment 3 - Clause 27A - Legal effect of sections 18 to 27
Clause 27A provides that the purposes of clauses 18 to 27 is to specify
requirements and provide for regulations that may specify requirements
within the meaning of 'tobacco product requirement' outlined in clause 4(1)
the Bill.  These clauses do not have any other legal effect.

A note to clause 27A states the offences and civil penalty provisions
associated with failing to comply with a tobacco product requirement are
set out in Chapters 3 and 5.
The offence and civil penalty provisions in Chapter 3 of the Bill, and the
enforcement powers in Chapter 5 of the Bill, apply in various situations of
failure to comply with the 'tobacco product requirements'. The purpose of
clauses 18 to 27 of Chapter 2 is to specify, and provide for regulations to
specify, these 'tobacco product requirements'. Clause 27A is a new clause
inserted to make clear that the tobacco product requirements specified in
clauses 18 to 27, and in the regulations, have no other legal effect, and
do not impose obligations independent of the offence and civil penalty
provisions in Chapter 3 of the Bill, and the enforcement powers outlined in
Chapter 5 of the Bill.