Public Health (Tobacco) (Amendment) Bill 2009: Committee and Remaining Stages.

SECTION 1.
Question proposed: "That section 1 stand part of the Bill."

Have the amendments been grouped?

The Order provides that I am dealing with section 1, then section 2 and the first group of amendments is on section 3. Deputies may comment on section 1 if they so wish.

I wish to so do.

I hope it will be that type of afternoon.

It will be one full of decorum, as ever. It is proposed to group amendments Nos. a1, b1 and 2 to 9, inclusive.

They are to section 3 and we are now disposing of section 1.

I apologise; section 1 deals with definitions.

On a point of order, I would like a list of the grouping of amendments.

It is being distributed. I am not sure that is a point of order.

It is because I will not be able to speak to the amendments if I do not know which ones are grouped.

I am happy to facilitate.

I do not have any issues with section 1.

Question put and agreed to.
Section 2 agreed to.
SECTION 3.

Amendment No. a1 was on the first additional list of amendments circulated on 10 July. Amendments Nos. a1, b1 and 2 to 9, inclusive, are cognate and may be discussed together by agreement.

I move amendment No. a1:

In page 3, line 29, after "order" to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

I was going to make a comment to the Acting Chairman but given that it is the last day I will not.

The Deputy can give me classes.

According to the Irish Cancer Society, we are spending €1 billion on the health-related complications of smoking. Smuggling is a separate issue but there is no question that increasing the price of cigarettes, which the Irish Cancer Society seeks and which I support, will lead to greater temptation to smuggle but that is an enforcement issue for the Customs Service and the Garda. This is an ongoing battle with regard to diesel, petrol and liquor and it should not influence this debate.

I wish to allude to something the Minister of State said. She stated that this does not represent any weakening of the Government position but I am afraid that is not the message people are getting. It is not the message received by the Irish Cancer Society, ASH Ireland or the Irish Heart Foundation. They all received the message that this is a weakening of the Government's position and a dilution of the effect of the original Act which is to send a sound, loud and serious message to retailers in the country who would seek to make profit by selling cigarettes to minors, thus entrapping them in a life of nicotine addiction and all that goes with it.

One does not have to be a GP or a doctor to understand the pain of watching a loved one die slowly and waste away from cancer, heavily drugged to control the pain. That is what many people who smoke cigarettes face; that is a fact and we know it. That argument is long won and nobody denies the truth of it. I do not want to paint a terrible picture for people who suffer with cancer but while we have cures for many cancers, lung cancer has one of the poorest cure rates and that is the one for which cigarettes are primarily responsible. They also cause throat cancer and are associated with bowel, breast and bladder cancer. Some 10,000 people in this country die annually from cardiovascular disease, of which cigarette smoking is a major cause.

When we are dealing with legislation such as this and its impact, it is no harm to remind ourselves of the reality as it can be a case of out of sight out of mind. We cannot allow it to go out of sight because we do not want to be first generation which, through increasing smoking levels and a spreading epidemic of obesity, buries the generation behind it. That is what we are looking at and smoking on its own, never mind obesity, will be a major cause of this.

Advertising and the storage of product are serious issues and the Bill includes provisions on these. There should be a minimum mandatory element, which is why this amendment proposes a period of "not less than 14 days". However, the offence of selling cigarettes to minors is so serious that there can be no compromise, which is why the amendment proposes a period of "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

I heard the Minister of State, Deputy Áine Brady, and the former Minister of State, Deputy Mary Wallace, speak about the difficulties for employers with regard to an employee who makes a mistake. Employers must be responsible for their employees. There must be a real fear of transgressing the law and a sanction against transgression. Otherwise we will have a situation where the attitude will be "Don't worry about it Mary — or Tommy — lash away and if they say anything about it I'll say you didn't know any better." That is not good enough. That is like saying to a lorry driver "Go on and drive for 14 hours and keep up the speed at 80 mph. We will make a fortune and I'll give you a cut at the other end; and if anyone says anything, say you didn't know." That is not on. The people will not appreciate that attitude.

If retailers think about the likelihood of their children receiving cigarettes in another shop, when they would not sell to them, they will feel strongly about the issue. As mentioned earlier, the 60% of retailers who abide by the law will not see it as fair if the sanctions against those who breach the law are laughable, which is what they may very well be. We have seen such situations time and again, for example, when people who commit heinous crimes such as murder are released after four years. This does not sit well with Fine Gael's position on mandatory sentencing in the case of murder. I do not want to overcook the egg or be dramatic, but what the Government is doing is setting children on a pathway to adulthood with an addiction that will shorten their lives considerably and lead to a very unpleasant demise.

It is not too much to ask the Minister to accept this amendment. I do not think it is a draconian or unreasonable proposal, nor do those who prioritise children's health. I urge the Minister of State to consider accepting this amendment and I would be delighted if we did not need to put it to a vote. While I have put forward two amendments under other sections, this section is the key section of the Bill and the part about which we are most seriously concerned. It is the part that makes real safeguards for children.

I have great admiration for the Minister of State, but she should not dilute this proposal or say black is white. She cannot say the section does not represent a weakening of the position when all those concerned want stronger sanctions. I am not talking about politicians but about apolitical organisations who prioritise the health of the people and who give of their time voluntarily, organisations such as the Irish Cancer Society, which has given €1 million towards the cancer strategy programme for bowel screening, the Irish Heart Foundation which trains people in CPR and tries to educate people about healthy lifestyles and ASH, a group that wants to protect people from the ill effects of smoking. Their only agenda is the health and protection of children and I believe that is also the agenda of the Minister of State.

The Minister of State must not let herself be hoodwinked by outside influences with a different agenda, namely, to sell cigarettes. That is their bottom line and that is all they are interested in. They do not want to think about their actions but want to shut out of their minds the consequences of their actions and the impact they will have on children. It is hugely worrying that in 2002 some 27% of people smoked but the 2007 figures show an increase of 2% to29%. This has come about despite all our advertisements and all the education offered. We are not winning. We need every bit of help and support we can get for the fight. This section of the Bill is key to that. I plead with the Minister of State not to allow any discretion, confusion or uncertainty reign in this area. Our society will not tolerate that. I plead with her to accept the amendment.

While a maximum period of three months is mentioned for suspension of a licence, it is important that we also state a minimum period. I presume the failure to state a minimum period means that, technically, suspension could be for just half a day or a very short period. Fine Gael has put forward a series of amendments proposing a minimum period. I agree with that. We must send out a message that the sale of cigarettes to children will not be tolerated and it is not enough to make an excuse such as someone has only been working for a few weeks and did not know the regulations. The owner of a premises must take responsibility for informing all staff of the rules on the sale of cigarettes. We need a minimum period for the withdrawal of a licence to ensure this happens. The Minister of State said there was a mandatory withdrawal period, but I would like her to expand on that. If there is not a minimum period for removal from the licence register, saying a withdrawal period is mandatory is insufficient because a judge could order that the offender be removed for a very short period such as a day or an hour or two. We must send positive messages with the legislation.

I commend the Government on what has been done in this area, particularly the ban on smoking in the workplace and the legislation that preceded this legislation, now being amended with regard to the sale and display of cigarettes and signage and so on. In that context, we should look at the statistics regarding the increase in the percentage of smokers in the 2007 figures. Perhaps we should not have expected to see much change or a decrease in the figures following the legislation. Perhaps too, if we looked at the statistics for 2008 and into 2009, we would now see a decrease. Can the Minister of State give any information on the percentage of the population who smoke?

The legislation has been very strong, particularly the ban on smoking in pubs, restaurants and workplaces and one would have hoped it would have made a significant difference. If it has not, we need to reconsider the situation. While some people may not smoke, others do and it seems we need to look at what is happening with young people. Research evidence seems to indicate that young girls, in particular, are smoking at an earlier age. They seem to see smoking as a way to keep their weight down. This may be due to the fact that the image of women portrayed to young people as attractive is an image of thin women.

We must counteract this by sending a different message. We must send the message that it is not attractive to smell of cigarettes. We must get the message out that it is not cool to smoke. We must win that battle, but statistics seem to indicate we are not winning it. I would love to hear if there are more up to date statistics that indicate a turn around in the percentage of the population that smokes. We must take the issue seriously because of the enormous effect on people's health. If people start smoking at the age of 14 or 15, they will find it very hard to give it up when they eventually realise it is affecting their health. Usually, people have been smoking for from ten to 20 years by that time.

It is important we succeed with prevention. I have no doubt that everybody here wants to make a difference. It is important to listen to the concerns of both sides. We do not want to put a newsagent out of business because there may be a small error in the legislation, but we must ensure that people cannot get around the serious aspect of the legislation by giving some excuse as to why they breached the law and should not, therefore, be removed from the licence register for any significant period. The legislation as proposed today allows them to make such excuses. We have to ensure that we have some basic standard of removal and timeframe in which the person who owns the premises and has broken the law is taken off the register.

As I said in my Second Stage remarks, the Public Health (Tobacco) Act 2002 very clearly and prescriptively lays out the penalties that apply regarding removal from the register and the consequent prohibition on the sale of tobacco products for three months for a summary offence and 12 months for a person convicted of an offence on indictment.

The amendments before us, with respect to my colleagues, speak of minimums. However, one does not need a minimum if one does not prescribe a maximum. The 2002 sections of the existing legislation are very clear. It is the amending Bill that creates the problem. It seeks to dilute the existing position from one that is quite clear regarding the penalties that apply, namely, three months and 12 months, respectively, and seeks now to speak of a maximum of three months and 12 months, respectively. It is only in the context of the introduction of maximum penalties that the amendments before us tabled by Opposition Deputies speak of minimums applying, and they believe that is necessary. My appeal to the Minister of State is to withdraw sections 3 and 5 and allow the current position to pertain.

I was in a store in my home town recently and saw a young shopkeeper's assistant request, very courteously but firmly, identification from people who were perhaps of her peer group. She was not happy that they were of the required age to sell tobacco products to. I was very impressed by the confidence of the young assistant making the challenge to demand identification and of the way she had been properly instructed by her employer as to how she should respond where there was any question or doubt as to the age of the person seeking to purchase such products. It was very impressive and needs to be the norm.

Why is it that, despite all the concerns as to how the ban on smoking in the workplace would be implemented and enforced, it has been so successfully implemented and enforced? I do not understand why we cannot expect a similar implementation and enforcement regarding the rigours laid out in the 2002 legislation vis-à-vis the display and sale of tobacco products to under age people. We have applied it in every other situation. Why can it not apply to retail outlets? It applies strictly in every other work environment. Why is it not possible to have the same understanding and co-operation regarding the point of sale?

This point is the kernel of the matter. The Bill indicates to me a half-hearted approach on the part of the Government regarding these measures. It reminds me of the introduction of Part V of the Planning and Development Act 2000 and how I welcomed the introductory remarks of the then Minister, Deputy Noel Dempsey. Yet, when the lobby got at it, legislation to amend the Act was introduced a couple of years later. It was watered down and those to whom it was addressed could literally buy their way out of their obligations to provide a quota of social and affordable housing in private developments.

This is another indication of a specific lobby seeking easement regarding the advertising, display and sale of tobacco products to children. There is no justification for such an accommodation. It should be absolutely firmly held to. The Government's proposition is fundamentally flawed which, in turn, invites the amendments before us. I hope the Chair will allow us the opportunity to oppose the section.

I am speaking in favour of the amendment tabled by Deputy Reilly, which I very much support. I am speaking as spokesperson for enterprise, trade and employment and as somebody who understands the pressures small businesses and retailers, in particular, are under in a very difficult economy where there is a shrinking market and rising costs, mostly imposed by Government. I am also conscious of the fact that I believe in personal freedom and rights of adults to make their own choices about how they behave.

I have been sceptical of some of the policies the Government has introduced regarding tobacco and alcohol. As we have seen, the recent increase in excise has not brought in any more revenue. In fact, revenues have fallen, as I predicted, contrary to what the paid economists and lobby groups had thought, for ridiculous reasons. I have concerns that some of the restrictions on signage and so on have gone too far, particularly those relating to antique signs, which were subject to a subsequent amendment.

I am also concerned that the Government may go too far on the issue of alcohol if it chooses to outlaw all alcohol advertising related to sport. It is currently under consideration by the Department and is unnecessary, given that there is a functioning and well-operating voluntary code of conduct covering the area. However, sometimes public health, particularly that of children, overrides concerns about economic and personal freedoms.

There is no safe level of consumption of tobacco, unlike alcohol. There is no scientific evidence that tobacco can be enjoyed safely or could ever be good for somebody's health. Unlike fatty foods, there is no safe level for tobacco and if it were to be introduced to the market for the first time today, it would be designated as a poison and would be illegal. It does not just cause lung cancer but horrible chronic illnesses such as chronic obstructive pulmonary disease, or chronic bronchitis, and emphysema.

As a doctor, I have treated people who spend 15 to 20 years of their lives having to take oxygen, being unable to walk up stairs or having to go into a hospital every time they develop a chest infection. I have seen the consequences of smoking. I am strongly of the view that, whatever about the right of adults to make their own decision, we should do everything to ensure that young people do not take up the smoking habit in any way. That is why this amendment is so important, because there is no point in having any law unless it is enforced. The Department is passing two criminal justice Acts per week at this stage and it is all for nothing if there is no enforcement. The same applies to road safety, alcohol and tobacco and I am aware from a briefing from the Irish Cancer Society that in 2008 there were only 26 convictions for selling tobacco to minors and the average fine was €250. If that is the case, it is no surprise that tobacco is so readily sold to minors. There must be a fear of punishment through real enforcement and where there is enforcement, the punishment must be sufficient to deter people from breaching the law again.

I know of a case involving my local Spar shop which was selling alcohol to minors. It was asked to close for two or three hours on a Saturday. That was the sole punishment which is simply not good enough. It is different in other jurisdictions. Let us consider the United States. Even when I travel to the United States and enter a bar, I am asked for identification. Although I am very fresh faced, no one could possibly believe I am under 21 years of age. However, it is the law for people to be asked for identification and it is enforced. That should be the case for young people and, indeed, everyone who wishes to buy tobacco or alcohol should be obliged to present identification, even if such a person is elderly. The only way to proceed is to make it a requirement that everyone must be asked for identification and this requirement should apply to retailers, publicans and other sellers. All such enterprises should be obliged to ask for identification from everyone buying alcohol and tobacco and in cases where this does not take place, the law should be enforced. The punishment should be sufficient to deter an offender from repeating the crime and for this reason a ban of either seven or 14 days should apply. There must be an economic cost and consequence on those who would disregard public health for economic gain. That is why I strongly support the amendment and I call on the Minister to consider not dividing the House on this matter and to agree to the amendment.

I thank the Deputy. I am sure he got in the line of the day regarding his age.

I fully support the amendment. The Minister of State will appreciate my view as a retailer. The difficulty for many retailers, as Deputy Varadkar outlined, is the issue of identification. It is very important to recognise the responsibility on retailers of the identification requirement. In many cases it is very difficult to determine the age of someone entering a supermarket. Often there are cases of people aged more than 18 years buying cigarettes for a minor. There is an immense level of responsibility on retailers. It is very difficult to distinguish between someone who is 17 years and someone who is 18 years old. Recently, many retailers have been employing Polish employees and others from Eastern Europe. It can be difficult to know the client and the customer. Ultimately, the principal responsibility falls on the proprietor or owner who, in many cases, may own a large convenience store and this can present a difficulty. It is more important that the public health concerns are clearly expressed in colleges and schools. It is quite frightening when one considers the number of young people who have started smoking. Much needs to be done with regard to the public health campaign against minors smoking and they must be informed of the dangers associated with smoking. This should be done through colleges and schools.

Little or nothing is done when it comes to the public health concerns and the difficulties and health consequences associated with smoking. School buses are an ideal facility in this regard. They are owned by the State and they contain no merchandise. The Department should use this facility to highlight the concerns of under age smoking on State owned property. However, this is not done.

I support the remarks of Deputy Reilly. My brother is a professor of public health and he is against smoking outright, including sponsorship by cigarette companies. Let us consider the premium national sporting organisations in the country. They are not sponsored by cigarette companies but they use other alcohol related products. Smoking has been banned from national organisations but alcohol has not.

It is one thing to introduce legislation but the real difficulty is with its enactment and enforcement. I know of cases in which the HSE encouraged minors to enter shops and retail outlets to establish whether they were in breach of the law, a despicable act. It is a very bad sign if the executive nominated young people under 18 years to enter shops and test the legislation. That is a fact and it represents an appalling vista. Minors were nominated to enter particular stores and find out if they were in breach of the law. That should not happen and the executive should not resort to using minors to check if the law is being policed. I trust in the enforcement of this law minors will not be employed to check whether retailers are in breach of it. I call on the Minister of State to comment on this point. If one has to employ minors to check the validity of the law, something is wrong with the Department, the legislation and its enactment.

I thank the Deputies for their contributions and I refer to the Fine Gael amendments. If a retailer is convicted of an offence under the Public Health (Tobacco) Acts, he or she is liable to a fine of up to €3,000, a period of imprisonment not exceeding three months, or both, and to a period of suspension from the retail register. The period of suspension is in addition to any fine or term of imprisonment and is mandatory. The only proposed change is that the duration of the period of suspension will now be a matter for judicial discretion. I emphasise that the 90 day period of suspension remains an option.

It should be noted that the penalties referred to only apply in the case of summary proceedings. A retailer convicted on indictment would be subjected to more severe penalties of up to two years imprisonment and a fine of up to €125,000. A mandatory period of suspension from the retail register would also apply. These penalties apply to any offence under the Acts, for example, sales to minors, breach of the advertising ban or smoking in an enclosed workplace. Not amending this period for which a retailer can be removed from the register could have different potential effects. For example, a judge could consider that three months removal from the register is too severe and may not convict the retailer or, alternatively, he or she might strike out the case. It is highly likely there would be a legal challenge on the basis of disproportionate penalties.

The protection of young people is a particular objective of the legislation. However, I emphasise that they are protected by a range of measures, not simply by the prohibition of under age sales. These include, for example, a ban on selling confectionary that resembles tobacco products, the ban on the sale of packs of less than 20 cigarettes and the ban on point of sale advertising. Other measures include advertising generally aimed at the de-normalisation of tobacco products and the protection of young people.

I refer to the Labour Party amendment and the question of whether to introduce a minimum period of suspension from the retail register. This was considered in detail when the legislation was being prepared. A policy decision was taken to leave the issue of the period of suspension entirely to judicial discretion. Accordingly, I regret that I am unable to accept this or the Fine Gael amendment.

That is very regrettable. It is very well to speak of indictment, jail, fines and so on, but I do not accept for one moment the case put. Perhaps someone from the Judiciary will correct me, but my understanding is that if one is found guilty, one is found guilty. If there is a mandatory sentence it must be applied and that is what is at question. We are discussing a mandatory suspension from the retail register of 90 days if found guilty of selling tobacco or tobacco products to a minor, not a mandatory sentence for jail or a mandatory fine. This is at the heart of our request and of what this is all about.

This is a good Bill and it sends out all the right messages. The Government worked on it for a year and it was happy with it but now it has become unhappy because of the loud voices of individuals whose vested interest is to sell cigarettes. The Government has not been listening to the loud voices of the Irish Cancer Society or the Irish Heart Foundation or ASH but listening instead to those who sell cigarettes. There is no way a judge should decide guilt on the basis of the severity of what the person will experience. On this side of the House we do not believe that 90 days suspension from the retail register for the sale of tobacco is draconian or too severe. It will send the right message to people, that they have a responsibility to the next generation, a responsibility to play their part in ensuring that children, minors, are not exposed to cigarettes and that they will not sell, aid or abet the sale of cigarettes to children. That is what this is about and nothing else. We do not have an issue with the other aspects of the Bill and I ask the Minister of State to just consider this amendment. If I were a retailer I would be extremely careful to make sure that neither I nor my staff would sell tobacco or tobacco products to anyone under 18 years because I would know I would lose the right to sell those products for three months. This will not put such a retailer out of business; he or she will still sell newspapers, the pint of milk, the half pound of butter but he or she will not be allowed sell cigarettes. This is a very just, fair and, above all, a very focused amendment. We are not seeking to punish them in any other way other than if a person abuses his or her right to sell cigarettes, he or she will lose that right. This is one hell of an abuse if it is engaged in. It is, as we all know, setting a young person on the path to a lifelong addiction.

We have already alluded to cancer, cardiovascular disease and Deputy Varadkar has alluded to the significant area of chronic obstructive airways disease, or COPD. The disability caused by cigarettes is huge and the cost to our State is huge. This Bill sent out a strong message when it was first published and now that message is being diluted. I am not the one saying that; it is what the Irish Cancer Society, ASH and the Irish Heart Foundation are saying. I ask the Minister of State to please listen to those who have the good of children at heart and the good of their health at heart. I ask the Minister of State to accept this amendment. The mandatory 90 days for the sale of cigarettes to minors is my main consideration. I will not fall out with the Minister of State over a minimum or maximum level, incorrect signage or other issues. They are important considerations but this is the most important consideration, the key message. This is a message not just aimed at the retailers of Ireland but at the Irish people as to how the Minister for Health and Children considers and prioritises the safety of children and their health.

The difficulty is that the Minister of State is saying it is mandatory and yet discretionary. This is leaving it up to the judge to decide on the level of suspension that should be applied, despite the fact that it is mandatory. I agree with the Fine Gael position with regard to minors in particular — this has to be seen as the most important aspect of this Bill. There are a number of offences under the legislation but the issue about selling cigarettes to minors must be taken seriously. I am not hung up on the period of time I have specified in my amendment although I understand it is not being discussed in this grouping as these are the Fine Gael grouped amendments. It is important a suspension be imposed that sends out the message that this is absolutely unacceptable.

I do not know if it is possible for the Minister of State to bring forward a provision acceptable to all of us. The reality of life in this House is that whatever we say on this side of the House it is presumed we will be defeated in a vote. We must ensure the principle of sending out a message that if a retailer or his or her staff sell cigarettes to minors there will be a period of time when he or she will not be allowed to sell cigarettes; this period of suspension as a result of selling to children should be sufficiently long to make it painful and for retailers to take this legislation seriously so that they will not allow anyone working for them to sell cigarettes to anyone under 18 years. This is what we want to achieve. I presume this Bill will go to the Seanad. This House will be returning early to deal with the NAMA legislation and we could possibly deal with this legislation also in that week. We are willing to be flexible in whatever way possible. We must ensure that those who sell tobacco products realise that the law is serious and that it will hurt them if they sell to children.

The explanatory memorandum to the Bill states: "The object of the Bill is to further amend the Public Health (Tobacco) Act 2002 and the Public Health (Tobacco) (Amendment) Act 2004." The main provisions of the Bill are summarised as follows:

Sections 3 and 5 — These sections provide for judicial discretion on the period of time a person who is convicted of an offence under the Public Health Tobacco Acts 2002 and 2004, is suspended from the retail register.

The Minister of State has not responded to my earlier request, both in my Second Stage contribution and in my contribution to the debate on these amendments. Will she withdraw sections 3 and 5 of the Bill and allow the mandatory time penalties to stand? These amendments would not be necessary as they are reactive to what the Minister of State is proposing to do. If the situation is maintained, where three months and 12 months apply, we will not have to start worrying about judicial discretion, maxima of three and 12 and minima of seven or 14, depending on the amendments before us. It is very important we accept that this is exactly what we are addressing here. This is a dilution of existing legislation that is very clear, very firm and eminently workable, in my view, where everybody co-operates and pulls together. If it can apply in terms of the smoking ban in the workplace — something many did not believe would work as well as it does — why can we not see the same acceptance and application of the rigours of the legislation now in place, still in place, apply across the retail sector with regard to access to tobacco products? This is the way it should be. It should be allowed to stand and to continue. This would be the appropriate position to take. Oftentimes once a Bill has come to Committee and Remaining Stages, it is often beyond the potential of the presiding Minister to accede to the request of Opposition Deputies but I have seen it happen.

I realise the Minister is in an invidious position, as a Minister of State in the Department, even with responsibility for this particular section. I have seen the senior Minister accede to amendments on the hoof, so to speak, in terms of debates in this Chamber. It is rarely the case that a Minister of State has sufficient confidence in his or her position to make that call and acknowledge the common sense of the arguments being put by Opposition Deputies. I invite the Minister of State to take just such a stand, and I would like clarification as to her intent.

It is clear to me that if the Minister does not accede to Deputy Reilly's amendments Nos. 3 and 5, not that I am in any way impressed by "not less than 14 days", the critical point regarding the sale of tobacco products to minors would merit support.

Two questions arise from the Minister's response. She said that a policy decision has been made to leave it to judicial discretion as to whether a person will be banned from selling cigarettes for a period of time. I am always bemused when I hear Ministers say that a policy decision has been made because in this case it begs two questions. First, does the Minister of State have confidence in our Judiciary to be consistent in the application of this law across the State or will we find that judges in some places take one view and judges in other places take another? If that is the case this amendment is necessary for two reasons, both to ensure, to be fair to the retailers, that there is a consistent decision across the country and that the will of this House is reflected, and that we do not give judges too much discretion in this regard. That is why I believe it is important.

On the second and more important question, the Minister says a policy decision has been made but the Minister is the Minister of State with responsibility for public health. When she says "a policy decision has been made" did she make that decision or was it made by the Minister for Health and Children, who is her superior in Cabinet, who may have made that decision over her head? Have these decisions been made by mandarins who are passing the Minister sheets back and forth in the Chamber quicker than washing on laundry day? The Minister might answer those two questions.

The Deputy is coming up with the lines.

To hang the laundry on.

I would like to ask the Minister where this proposal is coming from because I am not aware of any lobbyist, RGDATA or any of the retail representative groups making any contact about it. When we consider the level of compliance with the smoking ban in licensed premises, the deterrent was very effective in achieving the objective in that there was total compliance by all restaurant owners, publicans and in the entire licensed trade.

I support Deputy Reilly's amendment. The 90 days proposal represents an immediate loss to retailers and they will instill in their staff the need to demand ID before they make a sale.

On the number of prosecutions to date and the ability of the State to prosecute anybody, with 26 convictions, the element of proof required to get a case through the courts means that many cases have been thrown out. It is difficult to bring a provable case before the courts. Introducing major court restrictions and the imposition of massive fines sounds good in theory but implementing that in terms of bringing cases before the courts is not a reality.

When we are talking about an immediate deterrent, an effective deterrent would be the loss of the licence to sell tobacco products if it was proven that a retailer had been selling cigarettes to those under 18. That would have an immediate effect because the margin of profit in the tobacco business is about 10%, which for many convenience stores is a major contribution to the net margin. In a cash business that deterrent would be far more effective than imposing a huge fine because in reality, when the legal profession gets involved and with the inability of the State to prove a case, the case will never go to the courts. Deputy Reilly's amendment is immediate and effective and will register with all retailers.

For publicans in breach of the smoking ban a €2,000 on-the-spot fine was imposed. That registered with every licensee in the licensed trade because it had an immediate effect in cash terms. Likewise with regard to Deputy Ó Caoláin's proposition, we want to send out a clear message.

When bringing legislation before this House it is not good enough for the Minister charged with responsibility for public health not to follow through with the point of sale material and have it displayed not only on school buses but in all areas where young people congregate indicating the danger to their health. Equally, the Department should send out information to every retailer in the country in the form of a clear sign that they would be required to display in their stores indicating they are obliged by law not to sell any tobacco products to anyone under the age of 18. Signage to that effect should be mandatory because the message must be clear. We all hear about the laws of the State but unfortunately that message does not get across, and we are talking about sending out a clear message to younger people.

In terms of the number of young people attending college and the responsibility of parents, this has been a public relations disaster. We all hear about these recessionary times but a packet of cigarettes is €6 or €7. That is a large amount of money and the Department has failed dismally, on a public health matter, to hammer home this message on local radio, which is never used for public health messages, and on all the popular music stations that are dedicated to younger people. The Department should find some way to allocate funding to highlight the dangers of smoking to younger people on those youth channels, radio stations, local radio and through sporting organisations.

I have seen a great deal of legislation come through this House but is there ever any outturn check done on it? It is like business. We have many items of legislation coming into this House and I would like to see the Department come back here 12 months from now, show due diligence in terms of the laws enacted by the State and outline what has happened with that legislation. Last week, Bill after Bill was guillotined. I often wonder on how many occasions that legislation is used, even the criminal justice legislation. There is a major preoccupation with initiating legislation but very little checking is done to determine how effective it was and whether it has been implemented by the representatives of the State. That does not happen. I would like to think that when Fine Gael is in government it will check the enactment of legislation after 12 months to determine its effectiveness, whether it was implemented by people in authority or ignored.

To answer Deputy Perry, the guidelines for those selling tobacco products were sent to them with the only sign that is allowed to be displayed indicating that tobacco products are to be sold only to those over 18.

Has that gone out to all the retailers?

Yes, and the feedback has been positive. If Deputy Perry has been in any of the shops he will notice that the cigarette machines are covered.

I will check Perry's this evening and make sure it was done.

Otherwise he might not be back in September.

The Deputy should do that. I did not respond to his test purchasing question. The test purchasing, which is organised by the Health Service Executive, is a recognised way of enforcing tobacco legislation. It is conducted in line with a protocol developed by the HSE. The under age test purchasers are normally children of HSE staff. We could not suggest that these parents would put their own children at risk.

How much are they paid?

The protocol is clear that the primary concern is for the welfare of the minor. Without test purchasing, it is difficult to know how under-age sales could be policed. The period of suspension is mandatory. The penalties apply to many offences other than the sale of cigarettes to minors. It was decided, for the reasons already outlined, that judicial discretion was the best option. I regret I am unable to accept the amendments. I must add that the policy decision was taken before my ministerial appointment and that the enforcement of the legislation will be monitored.

Amendment No. a1 clearly seeks to put in place a minimum period of 14 days for all offences other than the grievous and serious offence of selling tobacco products to children. In that instance a mandatory three-month suspension will apply.

As Deputy Jan O'Sullivan said, the Minister's view of mandatory could be from half an hour to three days which is laughable. It will be sneered at by those who will transgress. Deputy Perry made the point eloquently that what drove home the smoking ban was the serious consequence of being caught. If the consequence for one's actions is not going to cost one a night's sleep, one will take chances. It was the same with drink-driving for years. Once enforcement started, people realised there was a real chance of getting caught and losing their driving licences. Since then, drink-driving incidents have reduced significantly. Similarly, with this legislation, if it is left to the discretion of the Judiciary, we will have, as Deputy Varadkar said, parts of the country where the offence will be punished with a slap on the wrist, such as a suspension for two hours on a Sunday morning before mass, while in other parts it will be taken more seriously with suspensions of two weeks.

A serious disincentive against transgressions of this law needs to be in place because it is a serious matter concerning our children's future. One only gets one childhood. It takes years for someone addicted to tobacco to get off it. I make no apology for saying the cigarette companies'modus operandi is to get young people addicted. Deputy Wallace referred to the point that every smoker who dies must be replaced with a new smoker. Who do the cigarette companies go after? They go after the kids. I believe in freedom of choice. Anyone over 18 years can make their choices and suffer the consequences, but that is not the case for those under age. I do not want children taken advantage of by a vicious industry. All Members believe there is nothing good about cigarette smoking. Why then should we not do everything in our power to protect our children from it?

I have drafted the amendment so that a retailer cannot lose his licence for a breach such as leaving a box of cigarettes in a wrong place or having an incorrect sign. I have no problem with a judge having discretion in such cases. However, my problem is with their discretion on breaches of the law on the sale of tobacco products to minors.

Maybe the Minister of State will change her mind and break the mould by accepting my amendment. Like the then Minister for Health and Children, Deputy Martin, with his smoking ban, maybe she will go down in history for being prepared not to listen to those whose agenda is not the welfare of our children.

I have dealt with the points made by Deputy Reilly and I regret I am unable to accept these amendments.

Amendment put.
The Committee divided: Tá, 57; Níl, 73.

  • Allen, Bernard.
  • Barrett, Seán.
  • Breen, Pat.
  • Broughan, Thomas P.
  • Bruton, Richard.
  • Burke, Ulick.
  • Byrne, Catherine.
  • Carey, Joe.
  • Clune, Deirdre.
  • Connaughton, Paul.
  • Costello, Joe.
  • Coveney, Simon.
  • Crawford, Seymour.
  • Creed, Michael.
  • Creighton, Lucinda.
  • Deenihan, Jimmy.
  • Doyle, Andrew.
  • English, Damien.
  • Enright, Olwyn.
  • Feighan, Frank.
  • Flanagan, Charles.
  • Flanagan, Terence.
  • Gilmore, Eamon.
  • Howlin, Brendan.
  • Kehoe, Paul.
  • Kenny, Enda.
  • Lee, George.
  • Lynch, Ciarán.
  • Lynch, Kathleen.
  • McCormack, Pádraic.
  • McEntee, Shane.
  • McManus, Liz.
  • Mitchell, Olivia.
  • Naughten, Denis.
  • Neville, Dan.
  • Ó Caoláin, Caoimhghín.
  • Ó Snodaigh, Aengus.
  • O’Donnell, Kieran.
  • O’Dowd, Fergus.
  • O’Mahony, John.
  • O’Shea, Brian.
  • O’Sullivan, Jan.
  • Perry, John.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reilly, James.
  • Sheahan, Tom.
  • Sheehan, P. J.
  • Sherlock, Seán.
  • Shortall, Róisín.
  • Stagg, Emmet.
  • Stanton, David.
  • Timmins, Billy.
  • Tuffy, Joanna.
  • Upton, Mary.
  • Varadkar, Leo.
  • Wall, Jack.

Níl

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Andrews, Barry.
  • Andrews, Chris.
  • Ardagh, Seán.
  • Aylward, Bobby.
  • Behan, Joe.
  • Blaney, Niall.
  • Brady, Áine.
  • Brady, Cyprian.
  • Byrne, Thomas.
  • Calleary, Dara.
  • Carey, Pat.
  • Collins, Niall.
  • Conlon, Margaret.
  • Connick, Seán.
  • Coughlan, Mary.
  • Cregan, John.
  • Cuffe, Ciarán.
  • Cullen, Martin.
  • Curran, John.
  • Devins, Jimmy.
  • Dooley, Timmy.
  • Fahey, Frank.
  • Finneran, Michael.
  • Fitzpatrick, Michael.
  • Fleming, Seán.
  • Gogarty, Paul.
  • Gormley, John.
  • Grealish, Noel.
  • Hanafin, Mary.
  • Haughey, Seán.
  • Hoctor, Máire.
  • Kelleher, Billy.
  • Kelly, Peter.
  • Kenneally, Brendan.
  • Kennedy, Michael.
  • Killeen, Tony.
  • Kirk, Seamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Lenihan, Brian.
  • Lenihan, Conor.
  • Lowry, Michael.
  • McEllistrim, Thomas.
  • McGrath, Michael.
  • McGuinness, John.
  • Martin, Micheál.
  • Moloney, John.
  • Moynihan, Michael.
  • Mulcahy, Michael.
  • Nolan, M. J.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • O’Connor, Charlie.
  • O’Dea, Willie.
  • O’Flynn, Noel.
  • O’Hanlon, Rory.
  • O’Keeffe, Batt.
  • O’Keeffe, Edward.
  • O’Rourke, Mary.
  • O’Sullivan, Christy.
  • Power, Seán.
  • Ryan, Eamon.
  • Sargent, Trevor.
  • Scanlon, Eamon.
  • Smith, Brendan.
  • Treacy, Noel.
  • Wallace, Mary.
  • White, Mary Alexandra.
  • Woods, Michael.
Tellers: Tá, Deputies Paul Kehoe and Emmet Stagg; Níl, Deputies Pat Carey and John Cregan.
Amendment declared lost.
Amendment No.b1 not moved.

I move amendment No. 1:

In page 3, after line 33, to insert the following:

"(2) The period of time for which registration of a person is suspended under this section in respect of any one offence shall not be less than 7 days.".

We have spoken about the substance of this amendment, the intent of which is similar to that of those tabled by Deputy Reilly. The intention is to ensure that a retailer of cigarettes will be taken off the register for a minimum period if he commits an offence and that the discretion of the judge should not be absolute, thus necessitating a minimum period of suspension. I chose an arbitrary period that is possibly appropriate for some offences but which is obviously too short in respect of the offence of selling tobacco to minors. I am not particularly exercised in regard to the period I chose but I wanted to ensure a debate on Committee State on establishing a definite suspension period if one is found guilty of various offences under the legislation.

While we have had this discussion in respect of amendment No. a1, I must reiterate that I feel very strongly, as do other Members, that the offence of selling cigarettes to children must be the most significant. My amendment does not address this directly but I urge the Minister of State to do what she can, whether it be by way of amendment in the Seanad or another mechanism, to ensure there will be a mandatory period of suspension for the offence of selling cigarettes to children, for all the reasons on which we have elaborated during Second Stage and Committee Stage thus far. It should not just be mandatory in name but mandatory in reality.

We know the reality of life in this House and that the Government can win votes here. It lost one in the Seanad yesterday so the Minister of State cannot be quite sure of making amendments in that House. If this Bill is passed without any Opposition amendments being accepted or without a Government amendment being accepted in the Seanad, will the Minister of State at least review the legislation after a relatively short period to determine whether it is being applied consistently throughout the country where there is judicial discretion?

There is an alternative to review in the event that the Minister of State does not accept any of the amendments, particularly amendment No. 1. I ask her for the third time, with a view to suggesting an alternative, whether she will withdraw sections 3 and 5 and allow the existing legislation to stand. There are clearly specified periods of delisting pertaining to offences committed by those licensed to sell tobacco products, namely, three months and 12 months. These amendments are a reaction to that of the Government, which seeks to dilute the existing clear statutory penalties that currently apply to those in the retail sector who breach the existing legislation.

If the Minister of State does not intend to accept any of these amendments, I appeal to her once again not to dilute the existing legislation in response to what must clearly have been considerable lobbying over some time. It was interesting to hear none of the Opposition voices experienced any such lobbying. It was hardly necessary granted that the Government already had this interest impressed upon it, as the legislation before us clearly indicates. The position the Government adopted in the 2002 Act was correct and should be let stand and the Minister of State should stand up to the pressure she has clearly been under.

I regret I am not able to accept Deputy Ó Caoláin's suggestion. I pointed out why I cannot do so and will not elaborate on it further. However, I assure Deputy Jan O'Sullivan that the legislation will be kept under review. I want workable legislation and what I have proposed is what I consider the most workable.

Amendment put and declared lost.

I move amendment No. 2:

In page 4, line 9, after "order" to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

Amendment put and declared lost.

I move amendment No. 3:

In page 4, line 12, after "order" to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

Amendment put and declared lost.

I move amendment No. 4:

In page 4, line 21, after "order" to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

Amendment put and declared lost.

I move amendment No. 5:

In page 4, line 24, after "order" to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

Amendment put and declared lost.

I move amendment No. 6:

In page 4, line 41, after "offence," to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

Amendment put and declared lost.

I move amendment No. 7:

In page 4, line 44, after "offence," to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

Amendment put and declared lost.

I move amendment No. 8:

In page 5, line 12, after "offence," to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

Amendment put and declared lost.

I move amendment No. 9:

In page 5, line 15, after "offence," to insert "not less than 14 days, except for offences relating to the sale of tobacco products to minors whereby removal from the register will be for a mandatory period of not less than 3 months".

Amendment put and declared lost.
Question proposed: "That section 3 stand part of the Bill."

I have already stated why I oppose the section.

Question put and declared carried.
NEW SECTION.

I move amendment No. 10:

In page 5, before section 4, to insert the following new section:

4.—Any approved signage regarding age restrictions on the sale of tobacco products, or any other matter, must be approved by the Department of Health and Children and must not carry the colour scheme of tobacco brands on the market.

I alluded to this earlier. This is a ploy of the manufacturers to subtly advertise their product. We can get around it without incurring any cost to the Exchequer or to the Department by insisting that the Department first approve all such signs and ensure the colour schemes of tobacco brands are not used in the signs so displayed. It is a fairly simple amendment and I cannot possibly imagine how the Government could have a problem with it, but I am always prepared to be surprised.

I was trying to figure out where a fellow would find an antique sign.

I am not sure what the exact ruling on this is but my understanding is that there are specified colours and so on for the signs, that they have to have a white background and I think black and red are allowed. We have been told, however, that other signs have gone up. If so they may be in breach of the law and if it is not as tightly controlled as it should be then let us accept Deputy Reilly's amendment.

Will the Office of Tobacco Control, or whoever else is monitoring this, go out and make sure the signs being used are in line with what is allowed? If the letters we have received are true it seems there are breaches. It may be a matter of regulation or of needing to change the legislation.

Amendment No. 10 is not required. The existing legislation bans marketing images and colours associated with particular brands, for example, gold, purple and blue. They are caught by that prohibition. This point was raised with the Office of the Attorney General when the 2009 Bill was being drafted.

I have no problem if the Bill covers these signs and I will happily withdraw the amendment but I refer the Minister of State to the last paragraph of the letter from the Irish Heart Foundation, which states:

However it has come to our charity's attention that retail outlets are indeed carrying a second sign clearly designed to attract the attention of young people. This is yet another insidious ploy by the tobacco industry to attract young smokers by "bending the rules" and we strongly urge you to take immediate action to have them removed.

If this is an enforcement issue the Minister of State should please ensure it is enforced.

Amendment, by leave, withdrawn.
SECTION 4.

I move amendment No. 11:

In page 5, between lines 41 and 42, to insert the following:

"(1A) The display of genuine antique (not reproduction) signs will be permitted in licensed premises as long as the brand/product in no longer available.".

The purpose of this Bill is to prevent the advertising of cigarettes, which we fully support. My amendment refers to antique signs for tobacco products that are commonly displayed in pubs and cafés for the purpose of creating an old world atmosphere. I do not have a significant problem with this as long as the signs are genuine antiques in the sense that they are aged — not like anyone in this House — and not reproductions and that the industry does not mass produce the latter to encourage cigarette smoking, and as long the brand or product being displayed is no longer available. I would like to hear the views of the Minister of State and other Members on this.

I have just one small question for Deputy Reilly. Who would bear the onus or responsibility of establishing the genuineness of the "antique" sign? Some reproductions are very good. Is there an implication for people who manufacture replicas? The Deputy is interested in creating the ambiance of old world pubs but I wonder how many antiques are available. The amendment raises several problems and I wonder how it would work out in practice. Maybe there are experts in this area.

We can take it that it will not be the owner of the old curiosity shop.

Does Deputy Reilly intend this to apply outside the jurisdiction because I have been in a bar in San Sebastian which had some of these signs? There are a lot of Irish pubs around the world that probably have reproduction signs but I presume Deputy Reilly does not envisage this applying to them.

The good citizens of San Sebastian who refer to their city as Donostia might very well accept Irish legislation, such is the good rapport between our respective peoples.

We may have close ties but I cannot imagine that our influence extends to creating law in countries outside our jurisdiction, although we will of course try to influence European law.

I accept Deputy Ó Caoláin's concerns but I do not think there are any implications per se because the alternative is that no signs, antique or otherwise, are displayed. I am trying to ensure that a genuine article can be displayed once the product is not available and therefore it is not an advertisement and, furthermore, that the tobacco industry cannot use its devious ability to get around law, as it did in the Irish Heart Foundation’s example by creating signs that are subtly aimed at youth. It should not be able to get into a new industry of making old world effect signs to advertise products that will be tweaked to resemble a product on the market.

If a brand no longer exists then there is no product to recommend to the public and the display of the name of the brand could not be seen as recommending that product. The sign does not have to be an antique as long as the brand is not on the market. Signs and memorabilia connected with brands which are no longer on the market may therefore continue to be displayed. Amendment No. 11 is not required because the brands must be obsolete.

Is Deputy Reilly happy about that response?

I am not happy about the use of reproductions. That is my concern. If one has the right to create a reproduction, and it might not be a direct reproduction but be tweaked, ever so slightly, the tobacco companies will use that loophole. I would like to press the amendment.

Amendment put and declared lost.
Question proposed: "That section 4 stand part of the Bill."

This section deals with the provisions required by duty free shops to avail of the opportunity to display signage associated with the sale of tobacco products which generally are in cartons of 200 in duty free shops. While this is welcome business for duty free shops it is right that we make the changes as identified in this amending legislation to allow that business to continue. It does not in any way impact on the desire of the State, which we share, to prevent young people taking up smoking.

The Minister of State and her predecessor, Deputy Wallace, accepted the bona fides of the airport authorities in attempting to continue their trade albeit with people who already smoke. That the cartons hold 200 and do not display the individual packets shown in the catchy advertising for cigarettes makes it acceptable, in line with the Government policy of trying to prevent people starting to smoke.

I acknowledge the tremendous efforts of the departmental officials in finding an appropriate amendment to the law to allow that trade to continue while at the same time protecting young people so they do not start to smoke. That is our focus and that of the Irish Cancer Society. I welcome this amending legislation.

Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

Sections 3 and 5 are related and both represent the central thrust of this legislation which is to dilute the existing penalties and accordingly I oppose the section.

Question put and declared carried.
Section 6 agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."

I raised the definition of "specialist shop" in my contribution on Second Stage. I do not have a problem with the first case, which just sells tobacco products, including cigarettes. In the second case, shops can sell tobacco products and other items as well, but be exempt from the closed container requirement. That is according to the information note we received on the Bill.

Does that mean I could have a gift shop on Grafton Street or Nassau Street and sell all kinds of items, including wine and tobacco, but not cigarettes and I can have the tobacco on display? If that is the case, that presents loopholes, and I would like to hear the Minister of State's response.

Such a shop cannot have cigarettes, but one must apply for an exemption to have tobacco products on display in a specialist shop.

This is a loophole and I want more information on it. How hard will it be to get the exemption and what kind of standards would apply? I understand the attempt to protect specialist shops but if this allows many other shops to become specialist shops by virtue of the fact that they do not sell cigarettes but sell other tobacco products and items, there could be a proliferation of specialist shops. This would need to be controlled tightly.

Some 90% of the shop's profit would come from cigarettes so people would not open a shop and apply for an exemption just to sell tobacco products.

That is if the shop wants to sell cigarettes. There are many shops that may wish to sell tobacco along with other items. They could see this as an opportunity to sell tobacco without being subject to the normal regulations that will apply to everybody else who sells tobacco. I do not have an amendment on the section but I ask that whoever implements the legislation would be aware that this could be a loophole that might be exploited.

Question put and agreed to.
Section 8 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.

The Bill will be sent to the Seanad.