Display & sale of tobacco products
The law requires that tobacco products are not supplied to under 18s; it also prohibits the in-store display of tobacco products
This guidance is for Scotland
Certain products cannot be supplied to anyone below a certain age - for tobacco products, this age is 18 years.
Cigarettes must only be sold in quantities of at least 10 and in their original packaging. A notice must be displayed stating it is illegal to sell tobacco products to under 18s.
Tobacco products must not be on display in-store and there are also restrictions on how prices and price lists are displayed (these restrictions already apply to 'large shops' but all retailers will have to comply from 6 April 2015).
Young people should always be asked for proof of their age.
In the guide
The keys laws that apply are the Children and Young Persons (Protection From Tobacco) Act 1991, the Cigarette Lighter Refill (Safety) Regulations 1999, the Tobacco and Primary Medical Services (Scotland) Act 2010, the Sale of Tobacco (Registration of Moveable Structures and Fixed Penalty Notices) (Scotland) Regulations 2011, the Sale of Tobacco (Display of Tobacco Products and Prices etc) (Scotland) Regulations 2013, and the Sale of Tobacco (Prescribed Documents) (Scotland) Regulations 2013.
'Tobacco' is defined as including cigarettes, any product containing tobacco for oral or nasal use (for example, snuff), and smoking mixtures used as a substitute for tobacco (for example, herbal cigarettes). 'Cigarettes' include cut tobacco rolled up in paper, tobacco leaf and other material in a form that is capable of immediate use for smoking.
The law states that it is an offence for any person to sell tobacco products or cigarette papers to anyone under the age of 18 years. This is a strict-liability offence - the member of staff who made the sale can be held responsible and so can the owner of the business.
You must display a notice that states:
The notice must be displayed in a prominent position and be easily visible at the point of sale. The notice must be no less than 297mm x 420mm (A3) and the characters must be no less than 36mm in height. Your local trading standards service or your tobacco supplier may be able to provide a notice for you to use.
If you employ children in your business, it is not illegal for them to sell tobacco products, provided of course that the customer is not under 18. However, leaving unsupervised children selling tobacco is not recommended as they may find it difficult to refuse customers in their own age group.
No. You must only sell cigarettes in prepacked quantities of ten or more and in their original packaging. It is an offence to split a pack and to sell in lesser quantities.
No. It is illegal to provide a cigarette vending machine that can be operated by customers.
Any machines still on the premises can only be used for storage where the public do not have access to them (such as behind the bar).
You must register with the Scottish government to become a tobacco retailer. This can be done online and the application must contain your name and the address of the premises (including moveable premises) from which you intend to retail tobacco.
A person may be banned from carrying on a tobacco business from the premises at which they committed three or more offences against tobacco legislation within a period of 24 months. The ban can be for any period up to 24 months.
A person banned from retailing tobacco at a premises commits an offence if he retails tobacco at those premises during the period of the ban.
Under the Sale of Tobacco (Display of Tobacco Products and Prices etc) (Scotland) Regulations 2013 you are required to cover your display of tobacco products. It is an offence to display tobacco products unless a specific request to purchase tobacco has been made to you by a person over the age of 18. Retailers must not have tobacco products and smoking-related products on permanent, open display - for example, on public view on gantries behind the counter. The size of each display must not exceed 1,000 square centimetres. Retailers must make sure that tobacco products and smoking-related products are out of public sight and cannot be seen, even for a short time.
If you are charged with an offence where a requested display was to a person under the age of 18, you have a defence available in that you believed the person was aged 18 or over and you had taken all reasonable steps to establish their age or from their appearance no-one could reasonably have suspected that the person was under 18. Taking 'all reasonable steps' means asking the person for evidence of their age and the evidence would convince a reasonable person. If you are charged with an offence of causing the display of a tobacco product, you have a defence available in that you exercised all due diligence to avoid committing the offence.
These requirements currently only affect those stores with a sales area of more than 280 square metres; from 6 April 2015 all shops selling tobacco products will have to comply (there are specific rules for bulk and specialist tobacconists - see paragraphs 34-35 and 54-57 of the detailed guidance linked to below).
More detailed guidance has been produced by the Scottish government to assist you in compliance.
Only three types of tobacco price display are permitted:
1) Poster style lists (up to A3 in size), which can be permanently on show. The legislation states that these must not exceed 1,250 square centimetres (A3 sized paper falls within the legal size limit).
2) A price list available on request (picture price list), which must not be left on permanent show but which can be shown to any customer who asks for information about tobacco products or smoking-related products. Good practice would suggest that age checks should be carried out before showing the picture price list and requests from children and young people under the age of 18 should be refused.
3) Price labels, which can be placed on shelving, storage units or tobacco jars. One price label is permitted for each product either on the covered shelf where the product is stored or on the front of the storage unit where the particular tobacco product or smoking related product is held pending sale.
Under the Cigarette Lighter Refill (Safety) Regulations 1999 it is an offence to supply any cigarette lighter refill canisters containing butane to anyone under the age of 18. This is because of the potential for abuse by 'sniffing' the gas, which can be extremely dangerous. See 'Cigarette lighter refills & solvents' for further details.
It is not illegal to sell matches or lighters to children. However, it is recommended that you do not sell these items to children, who are unlikely to have a legitimate use for them.
In order to keep within the law and therefore satisfy the legal defences, you should introduce an age verification policy and have effective systems to prevent sales to persons under 18 years of age. These systems should be regularly monitored and updated as necessary to identify and put right any problems or weaknesses or to keep pace with any advances in technology.
Key best practice features of an effective system include:
AGE VERIFICATION CHECKS
Always ask young people to produce proof of their age. The Trading Standards Institute, the Scottish government and Police Scotland support the UK's national Proof of Age Standards Scheme (PASS), which includes a number of card issuers. You can be confident that a card issued under the scheme and bearing the PASS hologram is an acceptable proof of age. The Scottish government endorses the Young Scot card. A passport, UK photocard driving licence, Ministry of Defence form 90, European Union National Identity Card or a biometric immigration document is also acceptable but make sure the card matches the person using it and that the date of birth shows they are over 18. If the person cannot prove they are over 18, then the sale should be refused.
OPERATE A CHALLENGE 21 OR CHALLENGE 25 POLICY
This means that if the person appears to be under the age of 21 or 25, they will be asked to verify that they are over 18 by showing valid proof of age.
Make sure your staff are properly trained. They should know which products are age restricted, what the age restriction is and the action they must take if they believe a person under the legal age is attempting to buy. It is important that you can prove that your staff have understood what is required of them under the legislation. This can be done by keeping a record of the training and asking the member of staff to sign to say that they have understood it. These records should then be checked and signed on a regular basis by management or the owner.
MAINTAIN A REFUSALS LOG
All refusals of tobacco and tobacco products should be recorded (date, time, incident, description of potential buyer). Some tills have a refusals system built in. Maintaining a refusals log will help to demonstrate that you actively refuse sales and have an effective system in place. Logs should be checked by the manager / owner to ensure that all members of staff are using them. If using a till-based system, you should ensure that refusals can be retrieved at a later date. You should also be aware that some refusals are made before a product is scanned.
If you possess an EPoS system then it may be possible to use it to remind staff of age restrictions via a prompt. Alternatively, stickers can be used over certain product barcodes.
You must display the legally required tobacco notice (see above). This should deter potential purchasers and act as a reminder to staff.
CLOSED CIRCUIT TELEVISION (CCTV)
A CCTV system may act as a deterrent and reduce the number of incidents of underage sales.
Trading standards may issue a fixed penalty notice if no warning notice is displayed at the point of sale of tobacco products. A fixed penalty notice may be issued if a sale of a tobacco product or cigarette papers is made to a person under 18 where no reasonable checks have been made to ascertain the age of the purchaser. The fixed penalty is £200 (discounted to £150 if paid within time). Failure to pay may result in a prosecution. Repeat offenders can be issued with a fixed penalty that increases with the number of previous enforcement actions.
If you sell tobacco products or cigarette papers to anyone under the age of 18, the maximum penalty on conviction is a fine of £2,500.
If you split a pack of cigarettes to sell in lesser quantities, the maximum penalty on conviction is a fine of £1,000.
If you fail to display the required tobacco notice, the maximum penalty on conviction is a fine of £1,000.
If you permit a person to purchase tobacco directly from an automatic vending machine, the maximum penalty on conviction is a fine of £2,500.
If you sell tobacco when unregistered, the maximum penalty on conviction is a fine of £20,000 and/or six months' imprisonment.
If you sell tobacco when banned from doing so, the maximum penalty on conviction is a fine of £20,000 and/or six months' imprisonment.
If you display tobacco products, or cause tobacco products to be displayed, the maximum penalty on conviction is two years' imprisonment and/or a fine.
If you supply any cigarette lighter refill canister containing butane to any person under the age of 18, the maximum penalty on conviction is six months' imprisonment and/or a fine of £5,000.
This information is intended for guidance; only the courts can give an authoritative interpretation of the law. Any legislation referred to, while still current, may have been amended from the form in which it was originally enacted. Please contact us for further information.
Last reviewed/updated: January 2015