Seanad Éireann debate -
Wednesday, 15 Jul 2009

Vol. 196 No. 16

Public Health (Tobacco) (Amendment) Bill 2009: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of the Health and Children (Deputy Áine Brady)

Members of the Seanad are aware that significant provisions of the Public Health (Tobacco) Acts were commenced two weeks ago on Wednesday, 1 July 2009. These provide that no advertising or display of tobacco products will be permitted in any retail premises that sells tobacco products and also require retailers to ensure that their tobacco products are stored out of view, within a closed container or dispenser that can only be accessed by the retailer or by the retailer's staff. To ensure that potential customers, who must be aged 18 years or older, may know what brands are on available, a retailer may use a pictorial list to inform them of the products stocked. This pictorial list, which is optional and not mandatory, can only be produced when requested by a customer and must otherwise be kept out of sight.

Registered tobacco retailers must display a sign at their premises informing the public that tobacco products may be sold at those premises to those over 18 years of age. This sign is mandatory. Retailers may display a sign drawing attention to the fact that identification confirming a person's age may be required as long as this sign does not specifically reference tobacco. In this regard, a wide range of age restricted products can be found in retail outlets that sell tobacco. Examples are alcohol, lottery tickets, petrol, some aerosols, disposable lighters, knives and some DVDs so there can be no legitimate objection to a sign drawing attention to the fact that age identification may be required, as long as tobacco is not specifically referenced or marketing images associated with tobacco brands are not employed.

Self-service vending machines are now prohibited except in licensed premises and in registered clubs. They must be token-activated and they must be located within the line of sight of a member of staff at all times. This is intended to ensure that those under 18 years of age cannot buy cigarettes from an unsupervised self-service vending machine. All retailers of tobacco products must register with the Office of Tobacco Control.

These new measures will be enforced by environmental health officers of the HSE. I pay tribute to the professionalism and dedication of environmental health officers, some of whom I met recently and who impressed me with their obvious commitment to the enforcement of this legislation. Ireland is at the forefront of effective tobacco control measures internationally and these measures, announced just over one year ago, will ensure that we maintain our leadership position. They will play an important part in tackling the public health threat that is posed by the consumption of tobacco.

The year long lead-in period allowed my Department, together with the HSE and the Office of Tobacco Control, to work with those affected by the new measures. The groups affected are primarily tobacco retailers, corner shops, the multiples, supermarkets, forecourt shops, bars, hotels or clubs. Self-service vending machine operators, duty free outlets and specialist tobacco shops are also affected and a comprehensive guidance document was prepared and made available to assist all affected by the new measure in being aware of their responsibilities. During this lead-in period a number of issues were raised with my Department. These were examined and were submitted initially for ministerial decision and subsequently for Government decisions. A policy decision was taken to adjust some of the measures originally proposed and consequently the Public Health (Tobacco) (Amendment) Bill 2009 is before the Seanad today.

The Bill proposes some minor changes to the overall package of measures introduced on 1 July and takes the opportunity to introduce other minor changes. The Bill comprises eight sections. Sections 1 and 8 are standard provisions. Section 2 defines "cigarettes". Sections 3 and 5 are interlinked and provide for judicial discretion on the period of time a person who is convicted of an offence under the Public Health Tobacco Acts is suspended from the retail register. The effect of such suspension is that the person cannot sell tobacco products for the period of the suspension.

This proposal has attracted some critical comment and it would be helpful if I outlined the reasons for the proposed change. Retailers, their representative groups and Oireachtas colleagues raised concerns about the period of time a person who is convicted of an offence under the Public Health Tobacco Acts would be suspended from the retail register. The period of three months was considered disproportionate. It was also considered unfair that the judge has no discretion around the period of time. These concerns were taken on board and have been responded to. The three month penalty remains an option and retailers on summary conviction will also be liable for a fine of up to €3,000 and-or up to three months imprisonment. As the vast majority of retailers can be expected to be compliant it is not envisaged that there will be a large number of prosecutions in the retail sector so I consider the current proposal a sensible compromise.

This proposed change was announced on 27 March and a number of groups sought meetings on the proposed changes, including the Irish Cancer Society, which I met on 14 May last. I met every group that sought a meeting with me.

Section 4 provides an exemption from the advertising ban for airport duty free retail outlets. They will be permitted to have a pictorial list of tobacco products sold on permanent display. However, airport duty free retail outlets will be required to conform to other significant changes in how they do business. Self-service will be abolished and the tobacco products themselves will be required to be kept in a closed container so there will be very significant changes in the airport duty free sector. It is my intention to review this exemption towards the end of 2013. This section also provides an exemption from the advertising ban for specialist tobacconist shops.

Section 6 empowers the Minister to make regulations to introduce combined text and photo warnings, also known as pictorial warnings or graphic warnings, on tobacco products. The European Commission has proposed a library of these warnings but as their introduction is not mandatory, an enabling provision is required, hence section 6. These high impact warnings have already been introduced in a number of EU member states and similar warnings have been introduced in non-EU countries such as Thailand, Canada and Brazil. I intend that my officials will develop an action plan for the introduction of these warnings.

Section 7 broadens the definition of a specialist tobacco retailer to be either a retailer who carries on, in whole, the business of selling tobacco products and tobacco related products by retail or a person who carries on, in part, the business of selling tobacco products but other than cigarettes. This amendment to the existing legislation will allow specialist tobacco retailers of which there are currently no more than five in business in the State, the choice of either selling only tobacco products and tobacco related products such as pipes, cigarette lighters, cigar cutters, humidors, ash trays and so on as provided in current legislation or, in addition to selling tobacco products, selling a full range of non-tobacco related products. Typically these are wines, walking sticks, ties and high-end consumer goods but not cigarettes.

Specialist tobacco shops are very much a niche sector and I do not consider that broadening the definition on the lines proposed will lead to a proliferation of such shops.

The Government remains committed to the introduction of tobacco control measures that will support the aim of bringing about a tobacco-free society and we will work constructively with all stakeholders in the broad health family to achieve this goal.

Senator Frances Fitzgerald

I welcome the Minister of State to the House. I note that we are taking all Stages of the Bill and this is not a method that we like to see used in the House. I hope that when the House returns it will not be the way legislation is dealt with.

Many anti-smoking groups see this legislation as a concession to vested interest groups and the smoking industry in general, and I am concerned about that. Will the Minister of State respond to this point? I note that she stated she met all the interest groups, including the Irish Cancer Society, but in the Government response and the Bill there is a dilution of what was originally intended. In her speech the Minister of State commented that the Government's intention is to move towards a tobacco-free society but that is not what is happening through this Bill. There is somewhat of a reversal of this in the Bill. We support the broad thrust of the legislation outlining the penalties and for that reason we support it, but we have tabled a number of amendments which we feel would strengthen the legislation.

I am concerned about the impact that the lobbying groups have had on the Minister of State and the Department. It is a very serious question because we all know the power of the international tobacco industry. When men reduced the amount they were smoking because they were becoming more involved in sporting activities and the message was getting through to them, and they gave up smoking prior to young women, we saw immediately that the tobacco industry moved its budget to focus on women. It began to advertise in women's magazines and very successfully targeted the advertisements at young women. When the developed world got the message about cancer and tobacco where did the tobacco industry move its resources and money? It moved them to developing countries and we see the problems those countries now have in this area.

The impact of tobacco and smoking on our lives and on the health of our people is absolutely enormous. This country has been extraordinarily concerned about the rates of breast cancer, but it is very clear that more women will die from lung cancer than breast cancer because of the generation of women who started to smoke in their teens. Unfortunately, we are now seeing the results of that in increased rates of lung cancer.

It is very disturbing to read the recent statistics on increased smoking among young women and men; the battle is far from over. Of an estimated 1 million smokers in the country 1,600 die each year from lung cancer and 7,000 die from smoking-related illnesses. The costs associated are absolutely enormous, as is the impact on the health service. The Irish Cancer Society states that more than €1 billion is spent by the health service on smoking-related illnesses. We should do anything we can to strengthen the hand of the State and the Government to get the message across clearly to our young people that this is a dangerous habit and that it can cost one's life.

We should not dilute what was recommended. I am concerned about the dilution of the penalties and about the exemptions. At total of 80% of smokers begin when they are under 18 and 53% begin when they are under 15. That is on what the legislation should focus. We are aware that the danger is beginning to smoke because it is so addictive. We should do anything we can to protect children, to keep them from starting the habit. That is why I am concerned about the legislation.

It seems the Government listened more to the lobby groups representing the retailers than to ASH Ireland, the Irish Cancer Society and the Irish Heart Foundation. I received very detailed information from each of those organisations, which are very concerned about the Bill. They do not believe it is in the interests of public health as it is a dilution and is the wrong way to go. These are very respected organisations and the Department normally listens very clearly to what they have to say. I commend the Government on the work done on smoking and the ban, so this is very surprising. Where has the influence come from and why has this happened in the Bill?

A recent national health and lifestyle survey shows that the number of people who smoke rose by 2%, from 27% in 2002 to 29% in 2007. This is a concern and we must ask why this is so and what Government policy can do to reduce these numbers. The protection of children should be paramount. Will the Minister of State consider improving the level of the enforcement of penalties for those who ignore the public health measures contained in the Bill?

On behalf of the 10,000 families who lose loved ones to heart disease each year, Michael O'Shea, the chief executive of the Irish Heart Foundation, expressed his serious disappointment with the amendments which water down the enforcement of tobacco health legislation. He stated that, as the chief executive of a national charity supporting people with heart disease and stroke, he welcomed the legislation, as did everyone, as a positive step in the fight against tobacco. However, like any legislation, its success depends on enforcement by authorities and compliance by relevant parties.

The Irish Heart Foundation also expressed concern that the new signage erected in retail outlets throughout the country is contrary to section 43(4) of the Public Health (Tobacco) Act. I am sure many of us have seen these advertisements at petrol stations and other outlets; the cover that was designed to move cigarettes from visible public display is being used as an advertising board, making cigarettes seem somewhat more tempting. The Minister of State may need to examine this issue and we may need to consider more effective enforcement so the legislation is not undermined.

The Irish Cancer Society has also alerted Members of the Oireachtas to the scary and alarming reality that up to 40% of retailers are willing to sell cigarettes to minors. This is why the penalties should be strong and clear and why we should not reduce them. Our legislation has to contain a strong message that those who sell cigarettes to minors will be punished where it hurts, in their pockets, and will be removed from the register to sell tobacco for a period of three months. I do not know why that is being changed. It is not comparable to alcohol. We know precisely the effects of tobacco and the danger from smoking is very stark and is there for all to see. ASH Ireland, a group comprising many public health experts and cardiologists, has expressed similar genuine concerns. Will the Minister of State respond to these points and outline to whom she has responded and why? What is the rationale? It seems to be a dilution of the original recommendations.

The Bill contains a number of provisions on duty free retail. Will the Minister of State explain to the House why these have been included? What is the imperative to amend duty free retail provisions? I have some ideas on it. The Bill provides exemptions for cigarettes for export to countries outside the EU. What is this about and why is it the case? Are we less vigilant about people travelling internationally? Where we export to countries outside the EU are we less concerned about rigorous enforcement?

The broader picture is that the Bill outlines an approach to penalties. We all have the same goal, which is to improve public health, protect young people and ensure that those who break the law by selling cigarettes to children are dealt with. The issue is how we protect children's health and the future health of the population.

Senator Geraldine Feeney

I wish to share three minutes of the ten minutes available to me with Senator O'Malley.

An Cathaoirleach

Is that agreed? Agreed.

Senator Geraldine Feeney

I welcome the Minister of State and welcome this legislation. I smiled when I heard Senator Fitzgerald's contribution. Fine Gael Members are very angry about the way legislation is being dealt with in the House lately but this Bill is short and concise and I do not believe there is much more to it other than passing all Stages in one day. I do not know what we would be doing if we were to debate it over several days. There is not enough work in it to draw it out any longer than what we are doing today.

Senator Frances Fitzgerald

Only if the Minister accepted the amendments.

Senator Geraldine Feeney

I am one of two Senators — Senator O'Malley was in the Lower House at the time — who was here when legislation on this area was first enacted in 2002, followed by the smoking ban legislation in 2004. It struck me earlier that the legislation and policy on smoking has changed 100% since 2002 and credit should be given where credit is due. I commend all the Ministers and Ministers of State, including this Minister, Deputy Brady, who were involved from 2002 to today on the great work they have done.

I have four children and, sadly, three of them are smokers. I was delighted to hear the Minister of State refer to section 6, which deals with the pictorial warnings. I looked at the graphic pictures this morning and some of them are terribly scary. If I were a smoker I would give up smoking immediately and put the cigarettes in the bin. I am going to blow up these pictures to make them more clear, bring them home and pin them up around my kitchen for the summer because they scare the daylights out of me and I hope they will have the same effect on my children who are in their 20s.

I am delighted that this section of the Bill is finally being enacted. I understand Senator Fitzgerald's reservations about letting retailers off the hook by not coming down hard on them if they are found to be selling cigarettes to children under the age of 18, and that is what they are if they are under 18, but we should compare like with like. The problems addressed in the Intoxicating Liquor Act have harrowing consequences for young people who are drinking but the effects of smoking can be as severe on young people's health. I am glad it is being brought into line with that legislation and that it is at the discretion of members of the Judiciary.

I realise cigarettes are now stored behind a shutter but we still have the pictures. It is a good idea to remove those because young people may not be aware that they can buy cigarettes in a particular shop. If they are under age they may not want to ask if cigarettes are sold whereas when the pictures were displayed they just went in and bought them. Young teenagers have a great attitude and nothing is beyond them. They have a sense of boldness and that everything will be at their disposal. We would like to be able to put old heads on young shoulders but that is not the way it works.

Senator Fitzgerald described how irate ASH and the Irish Cancer Society were but I did not get a sense that they were terribly irate. I am aware their representatives frequently sat in the Gallery on the occasions when this legislation was going through the House, particularly the Irish Cancer Society representatives, and its representatives are in the Gallery again today, and they were always very welcoming of the measures the Minister of the day was implementing. By and large, they are pleased and they would be the first to hold their hands up and say we have moved on this issue and that we are in a different position now than was the case all those years ago.

I was surprised to learn that there are only five specialist tobacco shops in the country. I am aware of one in Sligo where I live. It is a musty old shop but it has great character and an old world atmosphere and one would hate to see those shops close down. Perhaps we should consider the position in other countries, particularly France where there are specialist tobacco shops, which is the only place one can buy cigarettes. Many years ago my late husband and I were walking the streets of Paris very late at night trying to find a shop that sold cigarettes and I prayed we would come across one because he was going out of his mind looking for a cigarette. I cursed the fact that they could not be bought in supermarkets but we might consider something like that.

I was glad to hear the Minister say that her officials are examining section 6 in terms of the graphic warnings. As harrowing as those graphic pictures are I would prefer to see them on a box of cigarettes rather than the printed warning.

I welcome the Minister and I welcome the Bill, which is an important measure to protect young people. As Senator Fitzgerald pointed out, more than €1 billion is spent every year on treating smoking related illness. We must examine that into the future and try to cut back.

Senator Fiona O’Malley

I welcome the Minister of State to the House. I disagree with Senator Fitzgerald when she says this legislation is watering down prohibition. To my mind it strengthens prohibition. She made the point that the law will not be as strong on retailers. The measures remain in place but it is at the discretion of the judge. That is not watering down prohibition. Section 6 in particular is an anti-smoking measure and is the reason this Bill should be welcomed.

It is a measure of how unfamiliar I am with cigarettes that I thought the photographs were already on packets of cigarettes sold here because when one sees somebody with a packet of cigarettes one captures those photographs, so to speak. They are horrific and graphic but they are a reality. It is vitally important that section 6 is enabled and that photographs of this nature are put on packets of cigarettes.

Branding was the big thing in tobacco advertising, particularly in America with products like Marlboro or whatever. I do not want to name certain brands but they had a cachet attached to them. If this horrific photograph of the consequences of smoking was printed on a large part of a packet of cigarettes, with a tiny part showing the brand name, we will not see people sitting at a table with a packet of cigarettes beside them. Senator Feeney has shown me some of the photographs and they are horrifying. People would think twice about picking up a packet of something that will result in those terrible ailments. The sooner this legislation is brought in, section 6 enacted and these photographs appear on packets of cigarettes, the better.

I am concerned about a comment the Minister made about duty free operations. Coming back to the issue of the branding, if duty free shops are now allowed to display photographs, the photograph of the ailment is vitally important. If there are pictures of all the diseases one might contract, whether it is impotence, throat cancer or whatever, the sales of cigarettes will decrease enormously because nobody will want to buy a cancer, which is essentially what they will be doing. We must package and market cigarettes as cancer causing instruments. When we do that, and in a bold and brave way, we will see the number of smokers decline. That is what the legislation should be about.

Senator Feeney referred to Ireland's reputation. When I travel abroad, it gives me great comfort to hear people compliment Ireland on our pioneering legislation on smoking and plastic bags. We should remain at the forefront of this issue. I welcome the legislation and look forward to seeing hideous photographs on cigarette packets.

Senator Feargal Quinn

I welcome the Minister of State. I also welcome the Bill and the steps which have been taken. I recently watched an old film on television and I could not get over the fact that every character smoked. I suddenly realised that one no longer sees that. The behaviour of people in public clearly sets an example for young people. I hope the current absence of public images of smoking will deter them.

In Germany recently, I was surprised to see a big poster advertising cigarettes. I thought cigarette advertising had disappeared throughout Europe. Apparently that is not the case. Part of the difficulty of any regulation is that Irish people can see television broadcast from other countries, as we can see American magazines containing adverts for popular brands of cigarettes. I am not sure how we can impose legislation in every area to deter people from smoking.

The measures in the Bill will be effective because they will apply to shops. The Irish Cancer Society has expressed to many Members its unhappiness with the reduction in penalties in the legislation. I think the new penalties will work well. I am not sure if the Minister of State is a rugby fan. Until a few years ago, if a rugby player committed a foul the only thing the referee could do was to put him off the pitch for the rest of the game. That usually finished the match because 14 players could not compete against 15. With the introduction of the yellow card and red card rule, the referee was able to put a player off for ten minutes. The match was not ruined but the penalty was a sufficient deterrent. The new legislation has a similar benefit. A judge might not be willing to remove a licence for a considerable period whereas he or she might be willing to remove it for the limited time specified in the Bill.

On the other hand, we must make sure it is not acceptable to sell cigarettes to children. Almost 30% of our population still smoke and close to 7,000 people die from tobacco related diseases annually. The figures are horrific. I do not understand why anyone smokes. I can understand someone who started smoking 20 or 30 years ago finding it difficult to give it up. I find it difficult to understand how anyone in his or her teens can take the first cigarette, knowing it is a drug. I know we say this all the time.

Ireland has become the first country in the EU to remove all tobacco advertising from retail outlets. The fact is that one in four people here still smokes and the aim of this Bill is to cut rates even further through the new measures. I am a little concerned about small retailers who rely so much on tobacco. With my own background in retail, Members will understand that. I am much more concerned about the effect the tobacco industry has had on our children and that it continues to invest heavily in promoting a killing product.

New research by the Royal College of Surgeons in Ireland makes it clear that the problem in some parts of Irish society is worse than 50 years ago. In the 1960s, smoking was still comparatively rare among young Irish women. The RCSI report shows that 56% of 18 to 29 year old females in the lowest social brackets are smokers, while the figure is 28% for the same age group among the most affluent.

A study of the smoking habits and attitudes of 600 adolescents in Kildare and neighbouring counties found that adolescents have no difficulty in obtaining cigarettes from shops, despite laws which outlaw their sale to minors. A significant minority say they get them from their friends, brothers and sisters and, most surprisingly, their parents. Some 90% of the 126 pupils in four post-primary schools indicated little or no difficulty in obtaining cigarettes from their parents, siblings or friends, with the average age for the first cigarette at 12.7 years. Dr. Brendan O'Shea, who has served on the board of the Office of Tobacco Control, spoke to the Leinster Leader and suggested smoking was on the rise again in Ireland, after a dip brought on by the smoking ban. It is very worrying to think that children are still having no difficulty obtaining cigarettes and I hope we will see a major decrease in smoking rates among children with this new legislation. It is difficult to understand why young people start smoking when we have so much knowledge about its dangers.

Another growing problem is black market sale of tobacco. This is now, officially, one of the most profitable forms of organised crime in Ireland and is the third largest supplier of tobacco in Ireland. The Criminal Justice (Amendment) Bill was before the House but without tackling gangs' major source of income, the measures introduced will fall short. Tobacco smuggling cost retailers €453 million in 2007. We need to do much more to address this major problem. I use figures for retailers because they are unhappy with tobacco smuggling, but tobacco smuggling and the encouragement of gang crime is a far greater priority.

Recent talks at the World Health Organisation on expanding an international anti-smoking treaty to clamp down on the illicit trade in tobacco cited evidence that "half a dozen terrorist" or militant groups rely on black market tobacco and smuggling for revenue. I had not realised that. They include a number of which we would be aware. Some 11% of the global cigarette market is illicit, equivalent to some 657 billion cigarettes a year. Those figures come from the International Union against Tobacco and Lung Disease.

The WHO negotiations are also considering measures to deal with Internet sales. I am not sure what we can do about that. What strategy is the Government considering to stem on-line sales of cigarettes? I am not sure how big is that trade. The World Health Organisation is also examining a possible halt to duty-free sales of cigarettes, which it says are often diverted into the illicit trade. I am not sure how that happens. I can understand why the Minister of State has excluded duty-free from the Bill as we are in competition in that market. On the other hand, I would like to see a world wide ban or restriction on duty-free. One of the measures being considered is a ban or restriction on duty-free sales, according to official reports of the WHO meeting. It concluded that there would be no legal obstacles to such a ban, while a "track and trace" system on tobacco to prevent contraband was "feasible".

Given the findings that so many duty-free sales of cigarettes end up in the illicit trade, I would like to know what the Government is considering in this respect. Are heavier restrictions on duty-free cigarettes in the pipeline? At the very least, I believe we need to find out what percentage of duty-free cigarettes end up on the black market and consider whether a track and trace system on illegal tobacco could be introduced here in Ireland. I think there is a possibility of being able to do something in this area.

Those of us in the supermarket and retail business know of a number of shops which stopped stocking cigarettes because they were so easily stolen. The decisions had nothing to do with health. Shopkeepers simply feared that tobacco is too easily stolen by customers or employees.

The steps we are taking are in the right direction. I hope they have gone far enough. I accept the changes the Minister of State has made. I approve of the yellow card and red card system. I congratulate the Minister of State and encourage her to continue in the strife. So many lives are at stake in this regard.

Senator Déirdre de Búrca

I welcome the Minister of State and I welcome the opportunity to debate this point of sale amendment to the Public Health (Tobacco) Acts 2002 and 2004. It is important that we are debating the proposed amendments.

We have seen a huge cultural change in our attitudes to smoking. When I was younger and going to pubs and clubs, smoking was part and parcel of everyday life in Ireland. It was commonplace in pubs and restaurants. Smoking was often glamorised and popularised in advertising. We have achieved a revolution in attitudes towards smoking because we have become aware that it is far from the glamorous activity portrayed in advertising, films and other media. It causes many types of health problems and puts significant pressure on the health system at a time when resources are tightly stretched. For this reason, the ban on smoking in the workplace was important. As other Senators stated, in many ways we took the lead by introducing that legislation. Other countries have since followed our lead or expressed their intention to follow. We have achieved a major change in public areas where people congregate because smoking and exposing others to passive smoking have become anti-social and unacceptable.

All of these achievements were important, as were the 2002 and 2004 public health Acts and the point of sale legislation that came into effect on 1 July, which banned the advertising or display of cigarettes in shops, pubs and hotels. That legislation is an important public health measure, as its aim is to protect children from tobacco advertising. Children are susceptible to the type of advertising for which tobacco companies are responsible. The sale of cigarettes to minors is widespread and is an issue that we, as legislators, must take seriously. We are all aware that smoking is an addictive pastime. When people become addicted to smoking at a young age, it is often difficult to kick the habit. As a society, we are obliged to try to prevent this type of unwitting involvement in smoking among young children in particular, otherwise they could be starting out on lifetimes of addiction to what we now know to be a dangerous substance that is bad for our health. As legislators, we have a responsibility to ensure that the attractive methods used to convince people to begin smoking are removed from the reach of minors.

In supporting the point of sale legislation, the Government recognised the power of advertising in many of the outlets regularly used by children, namely, local and garage shops and other retail outlets. The penalties proposed by the legislation were important. For this reason, the correspondence sent to all Members by the Irish Cancer Society was interesting, in that it expressed its concern that the amendments to be discussed today would dilute the penalties for those in breach of the Public Health (Tobacco) Acts. Others have referred to some of the statistics. For example, the Irish Cancer Society has pointed out that 2008 saw 26 convictions for sales to minors. The society does not believe that this statistic reflects the level of tobacco sales to minors. It points out that the latest data from the Office of Tobacco Control indicates a significant number of retailers are still willing to sell cigarettes to minors. The office's report supplies a figure of 40%. Therefore, the figure of 26 convictions seems low. The society also pointed out that the fines given in all prosecutions amounted to €6,750 and that the average fine was €250, although the guide fine under the legislation is €3,000. In three cases, the fine was just €100. In seven cases, approximately 27% of prosecutions, no fines were given at all.

When we discuss the amendments, we must be aware of the level of disappointment with the way in which the current penalties are being implemented. The concern is that these amendments will dilute further the ability to penalise and prosecute those involved in selling cigarettes to minors. The key amendment, according to the society, is the greater judicial discretion in deciding for what period a person convicted of an offence under the Acts should be removed from the retail register. The maximum period for which someone can be excluded from the register will be 90 days. We must be practical and consider to what extent this penalty will serve as a disincentive to a retailer who has been selling tobacco to minors. Ninety days is barely three months, which is a short time to be removed from the register. I respectfully suggest that it is unlikely to have a major impact on the retailer.

Representations were made to the Government about retailers' concerns regarding such penalties, but being removed from the register and losing that licence would not mean that a retailer must close his or her shop. Retailers would still be able to sell other goods and remain open for business. We must try to find a balance between the protection of minors and the interests of retailers. I would like to hear the Minister of State's response to some of the concerns raised by the Irish Cancer Society with Deputies and Senators.

Senator Phil Prendergast

I welcome the Minister of State. What I am about to say is not shocking in and of itself, but only inasmuch as it relates to the context. I am referring to the supposedly off-putting pictures on packets of cigarettes. I recall working with Dr. Neasy while I was a student nurse. He was a consultant from Galway who used to come to our hospital once a month to perform surgery on patients with lung cancer. At the time and to my shame, it was routine for us to have a cigarette after assisting at or overseeing those operations. We were not put off at all. It was just something we did, as there was a disconnect between what was on the table or in the bucket in front of us and what we were doing. The main point in terms of cigarettes and tobacco is prevention. They are very addictive. After battling for many years to give cigarettes up, I succeeded 18 years ago. I have never felt the need to take them up again.

I will qualify my point on the number of young smokers. The notion, often proposed by the media, that cigarettes have a slimming effect by curbing the appetite is a serious issue. I undertake a sexual health programme in many of the schools in the south east. While we discuss many issues, many girls are concerned about the contraceptive pill and whether smoking will keep them thin. The information that they get from Bebo and similar websites supports their viewpoint.

Clonmel hospital saw a high incidence of chronic obstructive pulmonary disease. It was suggested that some of those problems had to do with the geography — being surrounded by hills and beautiful scenery — but there were many chest complications and smoking-related disorders. This fact has been borne out by the submission of the Irish Heart Foundation. I know Mr. Michael O'Shea from my chairing of the Heartsafe programme. The Heartsafe programme promotes activities and training in the use of AEDs and we were the first Heartsafe town in Ireland.

There is a disconnection between the education of young people on sexual and physical health and the activity a person undertakes that is damaging to himself. I can deal with sexual behaviour that is safe but, although I do not want to moralise, I am always upset when I see someone smoking because there is such an addictive element to it. I know because I have been through it myself.

I have also seen people struggle when cigarette prices are increased in the budget, with a 10 cent increase making a real difference to them. They are distraught because they must cut down on cigarettes so any legislation that might help to prevent people starting smoking is of benefit.

Senator Paschal Donohoe

I welcome the Minister of State. My attitude to this legislation is framed by my personal experience. I have had asthma since I was a young boy. At one stage it was quite bad. With the use of medicine now it is, at worst, an inconvenience. It has given me a real insight, however, into what it is like to struggle with unhealthy lungs. I did not ask to be asthmatic, I had no say in that, so when I see people choosing to do something that will affect the health of their lungs, I feel we must do more to help them understand that choice is wrong.

The change our society has undergone in its attitude has been brought home to me by a television programme, "Mad Men". It is set in an advertising agency on Madison Avenue during the 1960s and everyone smokes all of the time in the programme. It is one of the features critics watching it have commented on. Some people have gone so far as to suggest that it makes smoking cool again because we see these impossibly glamorous and successful people smoking incessantly. That shows how important this legislation is.

It hits the nail on the head when addressing the role retailers and retailer display can play in influencing behaviour. It does this in two ways, one obvious and one less so. The obvious way is that if something is readily available, the supply will be increased and more people will use it. Retailers are also important in influencing attitudes, subtly but significantly affecting people's attitudes to what is acceptable or not. If something is on display, it creates the impression for young people that it is fine to do it.

"Nudging" is an idea that has entered the political culture. It was developed by Carl Sunstein, who now works in the White House as head of regulation. His idea is that very small changes can be prompted in people's behaviour that will have hugely disproportionate effects on how they live their lives that then affect how an economy or society performs. This legislation is an example of a nudge in that it removes material from public display. That will then influence cultural ideas about what is acceptable or makes me feel sexy. That is why I welcome the legislation, although I share Senator Fitzgerald's concerns about the weakening of the penalties.

Retailers are important in influencing people's behaviour through supply and resultant acceptance. I take exception, therefore, to the exclusion of duty free outlets from this legislation. If young children when they are going through duty free shops see these items displayed, they will form the idea that smoking is still acceptable or somehow cool. They can see people picking these up to go on holiday and will then associate cigarettes with leisure. The next step in the legislation is to tackle nudges going in the wrong direction, away from where we want, by stating that if something is bad for a person if they are in Ireland, it is the same if they are going abroad. Such clarity would improve the legislation.

The overwhelming majority of retailers are law abiding but there will be potential for the supply of illegal tobacco to increase. There will be people selling tobacco products on the black market. It would be a retrograde step if retailers in town centres who are implementing this law find their businesses being hurt by those on the edges taking advantage. If the Minister acted on that, it would speed up implementation of legislation.

This is good legislation and we should be proud that we are leading the way in public policy on smoking and educating people on its consequences. We cannot, however, afford to be complacent. I would like the Minister to accept Senator Fitzgerald's amendment because it would go some way to ensuring that we are relentless in dealing with this issue and its social consequences.

I was shocked when I was preparing my contribution to find out that 1 million people still smoke in Ireland and a very large proportion of them are young people. Senator Prendergast made the point that in many cases this is bound up with people's idea of sexuality, that it is cool to smoke and if I do it, that girl or boy will really fancy me the next time he or she sees me. There is no point being attractive while making oneself sick and this area merits more work.

I commend the Bill to the House.

Minister of State at the Department of the Health and Children (Deputy Áine Brady)

I thank the Senators for their contributions.I note in particular the concerns expressed about the proposed removal of the mandatory 90 day suspension from the retail register of a retailer who commits an offence. This point was carefully considered when the legislation was being drafted and I am confident that the proposed change will better serve the long-term tobacco control agenda.

A period of suspension from the retail register remains mandatory. The only change is that judicial discretion will apply. The three month suspension remains an option. My officials will keep the operation of this aspect of the legislation under careful review. Senator Quinn's parallel with the effect of a ten minute suspension in a rugby game is apt because this principle influenced Government thinking. A penalty that is imposed is more likely to be a deterrent than a more severe penalty that is not imposed. The proposed change was influenced by concerns that the stricter penalty might not be imposed in practice. It was also influenced by the prospect of a legal challenge on the basis that a three month removal from the register would be a disproportionate penalty but it remains an option for retailers on summary conviction. They will also be liable for a fine of up to €3,000 or up to three months imprisonment. As most retailers can be expected to be compliant it is not envisaged that there will be many prosecutions in the retail sector. The current proposal represents a sensible compromise but my officials will keep it under careful review.

I dealt with Senator Fitzgerald's point about the retail sign, ‘no ID, no sale' in my earlier remarks. I understand that some retail outlets are displaying a sign indicating that ID may be required but this does not refer specifically to tobacco products because there is a wide range of restricted products to be found in retail outlets that also sell tobacco. Retailers have said that it is helpful for their staff to have a clear sign to point to when dealing with a troublesome customer and that there is an obvious need to find a solution to this problem. A sign that does not specifically refer to tobacco is an acceptable solution.

The airport duty free retail outlets must comply with all other aspects of the legislation, that all tobacco products must be stored out of sight in a closed container, can no longer be sold by means of self-service and the airport authority must register with the Office of Tobacco Control. There will therefore be a significant change in the manner in which tobacco products are sold in airport duty free retail outlets from 1 July 2009. Airport duty free outlets are a unique form of retail as the shops compete internationally rather than domestically. Tobacco products may be purchased only by passengers leaving the European Union and unlike all other retail outlets they are not aimed at the domestic market.

Duty free tobacco products are not sold alongside confectionery, therefore the subliminal association between confectionery and tobacco is not an issue. Duty free allowances are restricted to people over the age of 18. The sale of tobacco is passport-controlled, thereby restricting it to those over 18. Passenger profiling indicates that only 3.7% of passengers are under 16. Apart from leaving the pictorial list on permanent display there are no additional concessions to the duty free sector.

When the combined text and photograph warnings are introduced the pictorial list permitted to be on permanent display in duty free outlets will incorporate these warnings. Senator Quinn's point about duty free relates more to the diversion of duty free than to the legitimate sales in a duty free environment. This is not a concern in the Irish duty free outlets.

The Revenue Commissioners are responsible for all matters concerned with the illicit trade in cigarettes. They continue to implement a wide-ranging programme of measures to combat this threat, including continuing seizures of illegal products and prosecution of offenders; monitoring of Internet sites and instigating test purchases to identify importation routes; monitoring of sales patterns to identify and investigate irregularities and to target enforcement activity contributing to action at EU level to improve the controls on excisable products in the community; monitoring of sea cargo on the basis of risk analysis seizures; and ongoing monitoring of international courier and air freight services including Internet traffic as well as air passenger arrivals has also resulted in significant seizures.

The purpose of this Bill is to address some legitimate points raised with my Department over the past year. It does not represent any weakening of the Government's position in regard to tobacco control. With the introduction of the 1 July package, when tobacco control measures are compared internationally Ireland is at the forefront.

Question put and agreed to.

An Cathaoirleach

When is it proposed to take Committee Stage?

Senator Geraldine Feeney

Now.

Agreed to take remaining Stages today.