Public Health (Tobacco Products and Nicotine Inhaling Products) Act 2023
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Amendment of Act of 2002 | ||
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49. The Act of 2002 is amended by the insertion of the following sections after section 53: | ||
“Compliance notice | ||
54. (1) Where an authorised officer is satisfied that a person has contravened a provision to which this section applies, the authorised officer may serve a notice (in this Act referred to as a ‘compliance notice’) on the person. | ||
(2) A compliance notice shall— | ||
(a) state the grounds for the authorised officer being satisfied that there has been a contravention referred to in subsection (1), | ||
(b) for the purpose of ensuring compliance by the person concerned with a provision to which this section applies, require the person to do or refrain from doing such act or acts as is or are specified in the notice by such date as is so specified, and | ||
(c) contain information regarding the bringing of an appeal under subsection (5) against the notice, including the manner in which an appeal shall be brought. | ||
(3) A compliance notice shall not specify a date in accordance with subsection (2)(b) that falls on or before the date by which an appeal under subsection (5) may be brought. | ||
(4) An authorised officer may— | ||
(a) withdraw a compliance notice at any time, as he or she consider appropriate, or | ||
(b) where no appeal is brought under subsection (5), specify a date extending the period specified in the notice for the purposes of subsection (2)(b), and notify the person in writing accordingly. | ||
(5) A person may appeal a compliance notice served on him or her to the District Court not later than 14 days after the service of the compliance notice concerned. | ||
(6) Where a person makes an appeal under subsection (5), that person shall at the same time notify the Executive of the appeal and the grounds for the appeal and the authorised officer and the appellant concerned shall be entitled to be heard and to adduce evidence at the hearing of an appeal. | ||
(7) The District Court shall, upon an appeal under subsection (5), do one of the following: | ||
(a) affirm the compliance notice concerned; | ||
(b) direct the authorised officer to withdraw the compliance notice concerned. | ||
(8) An authorised officer shall comply with a direction under subsection (7)(b). | ||
(9) A person who fails to comply with a compliance notice by the specified date shall be guilty of an offence. | ||
(10) This section shall not operate to prevent or restrict— | ||
(a) the entitlement of any person to bring proceedings for the purpose of securing compliance with this Act by a person, or | ||
(b) the bringing or prosecuting of any proceedings for an offence under this Act. | ||
(11) In this section, ‘specified date’ means, in relation to a compliance notice— | ||
(a) the date specified in the notice in accordance with paragraph (b) of subsection (2), where no appeal against the notice is brought under subsection (5), or | ||
(b) the day falling immediately after the expiration of the period of 7 days from the date on which the District Court so affirms the notice, where an appeal against the notice is brought under subsection (5) and the District Court affirms the notice in accordance with paragraph (a) of subsection (7). | ||
(12) This section applies to the following provisions: | ||
(a) sections 33, 33A, 36 and 46; | ||
(b) sections 7, 8, 9, 10, 11, 12, 13 and 14 of the Act of 2015; | ||
(c) sections 22 , 27 , 28 , 30 , 31 and 32 of the Act of 2023. | ||
Prohibition notice | ||
55. (1) Where an authorised officer is of the opinion that a person has contravened a provision to which this section applies, the authorised officer may, with the approval of the chief executive officer of the Executive, or another officer of the Executive designated for that purpose, serve, or arrange to have served, on the person concerned, an order (in this section referred to as a ‘prohibition notice’) in accordance with subsection (2). | ||
(2) A prohibition notice shall— | ||
(a) be signed by the authorised officer issuing it, | ||
(b) state that the authorised officer is of the opinion that there has been a contravention referred to in subsection (1), | ||
(c) specify the provision or provisions of this Act or the Act of 2023 to which the suspected contravention referred to in subsection (1) relates, and | ||
(d) direct the person on whom the prohibition notice is served to ensure that— | ||
(i) the contravention of a provision referred to in paragraph (c), should cease immediately on the service of the prohibition notice, | ||
(ii) the tobacco product or nicotine inhaling product, is not placed or made available on the market until such time as all appropriate measures, including corrective measures, have been taken to bring the product into compliance with the provision of this Act or the Act of 2023 to which the contravention relates, | ||
(iii) the tobacco product or nicotine inhaling product to which the contravention relates, is not placed or made available on the market until such time as all appropriate measures have been taken to ensure compliance with the provision of this Act or the Act of 2023 to which the contravention relates, | ||
(iv) the tobacco product or nicotine inhaling product to which the contravention relates, is withdrawn or recalled from the market within a specified period of time, or | ||
(v) the tobacco product or nicotine inhaling product is destroyed within a specified period of time and in a manner specified in the notice by the authorised officer or is detained for the purposes of destruction by the authorised officer. | ||
(3) The approval referred to in subsection (1) may be given orally or in writing and if given orally, shall be recorded in writing as soon as practicable. | ||
(4) A prohibition notice shall take effect— | ||
(a) where, the prohibition notice so declares, immediately the notice is received by the person on whom it is served, or | ||
(b) in any other case— | ||
(i) where no appeal is taken against the prohibition notice, on the expiration of the period during which such an appeal may be taken or the day specified in the prohibition notice as the day on which it is to come into effect, whichever is the later, or | ||
(ii) where an appeal is taken, on the day next following the day on which the prohibition notice is confirmed on appeal or the appeal is withdrawn or the day specified in the prohibition notice as the day on which it is to come into effect, whichever is the later. | ||
(5) The bringing of an appeal against a prohibition notice which is to take effect in accordance with subsection (4)(a) shall not have the effect of suspending the operation of the prohibition notice, but the appellant may apply to the District Court to have the operation of the prohibition notice suspended until the appeal is disposed of and, on such application, the District Court may, if it thinks it proper to do so, direct that the operation of the prohibition notice be suspended until the appeal is disposed of. | ||
(6) In the event of non-compliance or delay by the person on whom the prohibition notice has been served, an authorised officer shall, with the approval of the chief executive officer or other officer designated in that behalf by the Executive, take whatever steps are considered necessary to ensure compliance with the direction given under subsection (2)(d) and this may include the withdrawal, recall, seizure and destruction of the products in question or the making of any arrangements for such withdrawal, recall, seizure or destruction, or both. | ||
(7) A person who is aggrieved by a prohibition notice may, within the period of 7 days beginning on the day on which the prohibition notice is served on him or her, appeal in the prescribed manner against the notice to a judge of the District Court in the District Court district in which the prohibition notice was served and in determining the appeal the judge may— | ||
(a) if he or she is satisfied that in the circumstances of the case it is reasonable to do so, confirm the prohibition notice, with or without modification, or | ||
(b) cancel the prohibition notice. | ||
(8) Where on the hearing of an appeal under subsection (7), a prohibition notice is confirmed, notwithstanding subsection (6), the judge of the District Court by whom the appeal is heard may, on the application of the appellant, suspend the operation of the prohibition notice for such period as in the circumstances of the case the judge considers appropriate. | ||
(9) A person who appeals against a prohibition notice or who applies for a direction suspending the application of the prohibition notice under subsection (5) shall at the same time notify the Executive of the appeal or the application and the grounds for the appeal or the application and the Executive shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application. | ||
(10) The chief executive officer of the Executive, or another officer of the Executive designated for that purpose may, for stated reasons, revoke or vary a prohibition notice made in accordance with this section and the Executive shall be notified at the next available meeting of the Executive of any such revocation or variation and the reasons therefore. | ||
(11) Where a prohibition notice has been served and activities are carried on in contravention of the prohibition notice, the High Court may, on the application of the Executive, by order prohibit the continuance of the activities. | ||
(12) An application to the High Court for an order under subsection (11) shall be by motion on notice to the person and the Court, when considering the matter, may make such interim or interlocutory order (if any) as it considers appropriate and the order by which an application under subsection (11) is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate. | ||
(13) This section applies to— | ||
(a) sections 38(1), 38(2), 38(7), 38(8), 38(9) and 43(1), and | ||
(b) sections 25 , 26 , 28 and 29 of the Act of 2023. | ||
Fixed payment notice | ||
56. (1) Where an authorised officer has reasonable grounds for believing that a person is committing, or has committed, a relevant offence, the authorised officer may serve a notice in writing (in this Act referred to as a ‘fixed payment notice’) in the prescribed form stating— | ||
(a) that the person is alleged to have committed the relevant offence concerned, | ||
(b) where and when the person is alleged to have committed the relevant offence concerned, | ||
(c) that the person may, during the period of 28 days beginning on the date of the fixed payment notice, make to the Executive at the address specified in the notice a payment of such amount or amounts as may be prescribed, being an amount of not more than €2,000 accompanied by the notice or copy thereof, | ||
(d) that the person is not obliged to make the payment specified in the notice, | ||
(e) that a prosecution of the person in respect of the alleged relevant offence will not be instituted during the period of 28 days beginning on the date of the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged relevant offence will be instituted, and | ||
(f) that in default of such payment, the person shall be prosecuted for the alleged relevant offence. | ||
(2) Where a fixed payment notice is served under subsection (1)— | ||
(a) the person to whom it applies may make a payment in accordance with subsection (1)(c), | ||
(b) the Executive shall, subject to subsection (5), receive and retain the payment and issue a receipt for the payment, | ||
(c) any payment received by the Executive shall not be recoverable by the person who made it, and | ||
(d) a prosecution in respect of the alleged relevant offence to which the notice relates shall not be instituted during the period specified in subsection (1)(c) and, if payment so specified is made during that period, no prosecution in respect of the alleged relevant offence will be instituted. | ||
(3) In proceedings for a relevant offence, it shall be a defence for the defendant to prove that he or she has made a payment in accordance with this section, pursuant to a fixed payment notice served in respect of the offence. | ||
(4) The Minister may prescribe the amount of a fixed payment and may prescribe different amounts for different offences. | ||
(5) Payments received by the Executive under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Public Expenditure, National Development Plan Delivery and Reform may direct. | ||
(6) In this section, ‘relevant offence’ means— | ||
(a) an offence under section 43, or | ||
(b) an offence under section 22 , 26 , or 29 of the Act of 2023. | ||
Legal privilege | ||
57. (1) Subject to subsection (2), nothing in this Act, the Act of 2015, the Act of 2023 or the Regulations of 2016 shall compel the disclosure by any person of privileged legal material or authorise the taking of privileged legal material. | ||
(2) The disclosure of information may be compelled, or possession of it taken, pursuant to this Act, the Act of 2015, the Act of 2023 or the Regulations of 2016, notwithstanding that it is apprehended that the information is privileged legal material provided that the compelling of its disclosure or the taking of its possession is done by means whereby the confidentiality of the information can be maintained (as against the person compelling such disclosure or taking such possession) pending the determination by the High Court of the issue as to whether the information is privileged legal material. | ||
(3) Without prejudice to subsection (4), where, in the circumstances referred to in subsection (2), information has been disclosed or taken possession of pursuant to this Act, the Act of 2015, the Act of 2023 or the Regulations of 2016, the person— | ||
(a) to whom such information has been so disclosed, or | ||
(b) who has taken possession of it, | ||
shall (unless the person has, within the period subsequently mentioned in this subsection, been served with notice of an application under subsection (4) in relation to the matter concerned) apply to the High Court for a determination as to whether the information is privileged legal material and an application under this section shall be made within 30 days after the disclosure or the taking of possession. | ||
(4) A person who, in the circumstances referred to in subsection (2), is compelled to disclose information, or from whose possession information is taken, may apply to the High Court for a determination as to whether the information is privileged legal material. | ||
(5) Pending the making of a final determination of an application under subsection (3) or (4), the High Court may give such interim or interlocutory directions as the court considers appropriate including, without prejudice to the generality of the foregoing, directions as to— | ||
(a) the preservation of the information, in whole or in part, in a safe and secure place in any manner specified by the court, or | ||
(b) the appointment of a person with suitable legal qualifications possessing the level of experience, and the independence from any interest falling to be determined between the parties concerned, that the court considers to be appropriate for the purpose of— | ||
(i) examining the information, and | ||
(ii) preparing a report for the court with a view to assisting or facilitating the court in the making by the court of its determination as to whether the information is privileged legal material. | ||
(6) An application under subsection (3), (4) or (5) shall be by motion and may, if the High Court directs, be heard otherwise than in public. | ||
(7) In this section— | ||
‘computer’ includes a personal organiser or any other electronic means of information storage or retrieval; | ||
‘information’ means information contained in a book, document or record, a computer or otherwise; | ||
‘privileged legal material’ means information which, in the opinion of the High Court, a person is entitled to refuse to produce on the grounds of legal professional privilege.”. |