FMCG Business March 2021

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[ legal advice ]

LEGISLATIVE CHANGES TO SMOKE-FREE LAW –

HOW DOES IT AFFECT YOUR WORKPLACE? Lucy Stevens is a Commercial Solicitor at Steindle Williams Legal based in Auckland. www.swlegal.co.nz

In March 2011 the New Zealand Government set the goal of making New Zealand a smoke-free nation by 2025. This goal was to be achieved through reducing the availability of tobacco in New Zealand and thereby reducing the number of people that smoke. In recent years vaping products have become an attractive alternative to smoking and this has meant that the New Zealand Government has had to take legislative measures to ensure that the smoke free goal is still achievable. In November 2020, the Smokefree Environments and Regulated Products (Vaping) Amendment Act 2020 (the Act) came into force. The purpose of this Act is to better regulate vaping products in New Zealand. The Act amends what was previously known as the Smokefree Environments Act 1990. The Act covers issues such as introducing restrictions for the advertising of vaping products and introducing safety measures regarding the use of these products to regulating the use of vaping products, while at the same time acknowledging that the vaping products are a “less harmful” alternative to smoking. The provisions of the Act are something that both employers and employees need to be aware of as it places restrictions on the use of vaping products in the workplace and places restrictions on workplaces (retailers) in the business of selling vaping products.

Vaping in an indoor workplace is prohibited.

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FMCG BUSINESS - MARCH 2021

Use of vaping products in the workplace The default provision under the Act is that vaping in an indoor workplace is prohibited and an employer must take reasonable steps to ensure that no one vapes indoors at any time. This applies to employers, employees and any guests visiting the workplace. The only exception to this rule is that if a workplace is a hospital care institution, residential disability care institution or a rest home, then an employer may permit its patients and/or residents to smoke or vape in a dedicated room. This exception does not permit the employer, employee, or any guests to smoke or vape in the dedicated room. Allowing an employee to vape or smoke in a workplace vehicle is at the discretion of the employer. Under the Act an employee is permitted to vape or smoke in a workplace vehicle, provided that the public do not normally have access to the vehicle and all employees or volunteers who regularly use the vehicle have consented to the vaping or smoking in the vehicle. Whether you are permitted to vape in your workplace vehicle will be something that is determined on a case-by-case basis.

Rules for retailers The Act imposes rules and regulations on workplaces in the business of selling vaping products. New rules have been introduced for the advertising of vaping products, specifically the advertisement of vaping products is banned. The Act provides for certain exceptions to this rule, in relation to retailers, which includes but is not limited to the exception that a retailer can display that they stock vaping products, provided this display does nothing more than indicate the fact that they are a stockist. Employers and employees will also need to be aware of the type of information that they can provide a customer when it comes to vaping products. The Act prohibits a retailer from encouraging the use of a vaping product and notifying the availability of the vaping product within their premises. Retailers are also prohibited from supplying vaping products to anyone under the age of 18. Any retailer who is found to be in breach of these obligations is liable to pay a fine of up to $200,000.00 for large scale retailers. To ensure that your workplace is not in breach of the Act we recommend that you contact your trusted legal adviser.