The Queensland Parliament passed the Tobacco and Other Smoking Products Amendment Bill 2023, which has amended the Tobacco and Other Smoking Products Act 1998 and introduced a raft of changes to the wholesale, retail and use of smoking products targeted at harm reduction in the community. Focused on addressing harm caused by supply of illicit smoking products, and illegal supply to minors, as well as tightening smoke free area designations, that changes have a staggered rollout and several significant impacts on the P&C retailers.
“The changes deal extensively with e-cigarettes or vapes. This has prompted members to contact ACAPMA seeking clarification on the intersection between the Queensland Act and the ban on vapes that was announced with the Federal Budget. It is vital for all members to understand that the changes made overnight in Queensland are the culmination of a process that commenced in March 2023 with the tabling of the Bill. This process predates the Federal Government announcement of the ban to the retail of e-cigarettes/vapes. As a result, the specific areas dealing with the retail of e-cigarettes will come into force in Queensland as scheduled but are likely to be changed again in the near future as the Federal changes flow into the State framework and are taken up by the Queensland Parliament in due course. ACAPMA will keep members updated as the requirements for retailers change over time”, explains ACAPMA’s Elisha Radwanowski.
What has changed?
“The passing of the Bill last night has resulted in the creation of a Licencing Scheme for retailers and wholesalers of tobacco and other smoking products (smoking products). This is an entirely new requirement in the Queensland and will impact all P&C operators currently retailing smoking products into the future. The Queensland scheme is different to those operating in other jurisdictions and applies penalties to operators and employees around appropriate licencing, so it is vital that operations understand these changes now and prepare”, outlined Elisha.
“The Licensing Scheme itself has some very particular requirements and is expected to be open for applications from September this year, with wholesalers and retailers being given until 1 September 2024 to complete the application and approval process”, Elisha added.
“In addition to the establishment of a Licencing Scheme, the changes also make it an offence for a child to sell or even handle smoking products in the course of their employment. This is a big change for Queensland retailers. From 1 September 2024 no employee under the age of 18 years may retail or handle smoking products. This means those employees cannot do stocktakes, cleaning or otherwise handling of smoking products, which includes filters, papers, e-cigarettes and all tobacco. It also, as a consequence, means that these employees cannot work alone onsite. Businesses have some time to adjust staffing and rosters to accommodate this and should ensure they do so, as penalties start at $38,500 for a first offence and rise to $115,500 for additional offences”, Elisha cautioned.
“The changes also include penalties directly to the employees themselves for retailing smoking products to customers outside of the employers licence conditions as well as a series of requirements around invoicing for smoking products and the requirement for retailers to retain compliant invoices for two years.
“The bottom line for Queensland retailers is this, there have been a series of changes that will impact the way they do business in this area. While the changes are unlikely to be the last, given the Federal announcement of a ban on retail of vapes, they are here now and need to be well understood and planned for now. As always ACAPMA will provide members with detailed information and guidance to assist them in understanding and meeting the changing compliance requirements”, Elisha concluded.
Changes impacting employees under 18 years of age
Commencing from 1 September 2024;
- Amendments to Section 9 make it illegal for an employee who is a child to retail smoking products in any circumstances (unless loading or unloading a vehicle or delivering into retail/wholesale location). The penalty for failure to comply is 40 penalty units (currently $11,000).
- Amendments to Section 11 make it illegal for an employee who is a child to handle smoking products in any circumstances (unless in a pharmacy). The penalty for failure to comply is 140 penalty units (currently $38,500) for a first offence, 280 penalty units (currently $77,000) for a second offence and 420 penalty units (currently $115,500) for third or later offences.
It is important to note that for businesses employing 20 people or less these elements come into effect on 1 September 2025.
New Licencing Scheme for wholesalers and retailers
Applying for and Holding a Licence
The Licencing Application Portal is expected to go live from 1 September 2023 with retailers and wholesalers having 12 months to have their applications lodged and approved (according to the Explanatory Memorandum).
Licences will not be transferable with the sale of a business. This will need to be considered and addressed by operators in site sales. In order to retail smoking products on day one of operations a new operator will need to apply for and be approved for a Licence before operations commence.
Under the scheme Licensees must not offer or advertise for sale, transfer or trade their licence. Licensees must not actually sell, transfer or allow another person to hold their licence. The penalty for failure to comply is 200 penalty units (currently $55,000).
Licence Application must be on the appropriate form, which will be identified in the portal to be launched soon, and must identify the Directors, identify the location of sale, include copies of licenses issued to Directors in other jurisdictions (State or Federal).
Licence approvals will be subject to a fit and proper person test, including refusal of licence if; there has been an application by the Director that has been refused in the previous six months, there has been an application by the Director that has been cancelled in the previous six months. Consideration will also be given to; previous insolvency, corporate disqualifications, liquidations, convictions for fraud, dishonesty, tax or customs evasion as well as contravention of any Federal or State tobacco/smoking product regulations. There are extensive powers for request of additional documents and evidence as well as attendance and access to proposed retail/wholesale site prior to the granting of a Licence.
Providing false information on Application, Renewal or Request attracts a penalty of 50 penalty units (currently $13,750) per item.
Licences, once approved, will be valid for a maximum of one year. Renewal applications must be submitted in full before the expiry of the current licence if the retailer/wholesaler is to continue retailing/wholesaling, however there is dispensation for trading to continue while renewals are assessed, at least until a Decision is issued on the Renewal Application. Licences Applications and Licence Renewals attract processing fees which are not yet set.
Licences can be suspended or cancelled at any time for breaches or a change to the fit and proper operation, following a show cause process.
Licensees are required to provide notice within 14 days if they are convinced of an offence relating to fraud, dishonesty, tax or customs evasion, breach of another State or Federal tobacco/smoking product regulation or any other indictable offence. Notice is also required in other circumstances including; if there is a change in Directors, insolvency, liquidation or corporate disqualification. The penalty for failure to notify any of these scenarios is 140 penalty units (currently $38,500).
There are appeal and review processes for operators to pursue I the event of rejected, suspended or cancelled licences as well as penalties applied relating to licences.
Wholesaling Requirements
Wholesalers may only supply licenced retailers. The penalty for failure to comply is 1000 penalty units (currently $275,000).
Wholesalers must supply invoices to retailers that are in English and include all required elements. The penalty for failure to comply is 140 penalty units (currently $38,500).
Retailing Requirements
A copy of the Licence must be on display at the retail/wholesale location where it can be easily read by customers. The penalty for failure to comply is 50 penalty units (currently $13,750). A Licence may not be displayed after it has expired or been cancelled or suspended. The penalty for failure to comply is 50 penalty units (currently $13,750).
Retailers must retain a copy of invoices for at least two years and produce for inspectors on request. The penalty for failure to comply is 140 penalty units (currently $38,500).
Retailers must not display more than one of the mandatory signs at the point of sale. The penalty for failure to comply is 20 penalty units ($5500).
Changes to employee responsibilities
Employees are in breach if they supply a smoking product to a child. The penalty for failure to comply is 20 penalty units (currently $5500) for the first offence and 40 penalty units (currently $11,000) for subsequent offences. This is a penalty to the employee.
From 1 September 2024, employees are in breach if they sell a smoking product to any person when the retailer/wholesaler does not hold a current valid Licence for that sale. The penalty for failure to comply is 20 penalty units (currently $5,500) for the first offence and 40 penalty units (currently $11,000) for subsequent offences. This is a penalty to the employee.
More information and assistance
ACAPMA is currently updating both the Tobacco and Smoking Products Guidance and the Employing Juniors Guidance and will circulate to Members shortly.
- For a copy of the Act*, see https://www.legislation.qld.gov.au/view/html/inforce/current/act-1998-001#
*as at 26/5/2023 this has not yet been updated with the amendments from the Bill and thus needs to be read in conjunction with the Bill. Please review the ‘current from’ date and versions when reviewing. - For a copy of the Bill (which now passed will change the Act as presented), see https://documents.parliament.qld.gov.au/tp/2023/5723T284-93BC.pdf.
- For general information on Smoking Products, see https://www.health.qld.gov.au/public-health/topics/atod/tobacco-laws.
Here to help
This article is general in nature and covers things to consider, implement and watch out for in your business. It is provided as general advice and you should seek further advice on your situation. ACAPMA Employment and Compliance Professionals are available to assist ACAPMA members via employment@acapma.com.au. ACAPMA membership is affordable at only $810 inc GST per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Visit: https://acapma.com.au/membership/ to learn more or to apply for ACAPMA membership.
Elisha Radwanowski BCom (HRM & IR)
Source: https://acapmag.com.au/2023/05/big-changes-for-smoking-product-retail-in-qld-overnight/.
