Tobacco & children
The law requires that tobacco products are not supplied to under 18s; understand your legal obligations
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.
Young people should always be asked for proof of their age.
In the guide
The laws that apply are the Children and Young Persons (Protection from Tobacco) Act 1991 and the Tobacco and Primary Medical Services (Scotland) Act 2010.
Under this legislation it is an offence for any person to sell tobacco products or cigarette papers to anyone under the age of 18 years. The penalty on conviction is a fine of up to £2,500. 'Tobacco' is broadly 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. If this requirement is breached, the member of staff who made the sale can be held responsible and so can the registered tobacco retailer.
You must only sell cigarettes in quantities of at least ten and in their original packaging. It is an offence to split a pack and to sell in lesser quantities. The penalty on conviction is a fine of up to £1,000.
You must display a notice that states:
The notice must be exhibited in a prominent position readily visible at the point of sale of the tobacco at every retail premises that sells tobacco. 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. Failure to display a notice is an offence and the penalty on conviction is a fine of up to £1,000.
If you employ children in your business, it is not illegal for them to sell tobacco products or cigarette papers 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 to sell to their own age group
In large shops (those exceeding 280 square metres) tobacco products and smoking related products must be stored out of public sight. The size of each display must not exceed 1,000 square centimetres.
Retailers must not have tobacco products and smoking related products on permanent, open display - for example on public view on gantries behind the counter. 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.
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.
It is illegal to provide a cigarette vending machine that can be operated by customers.
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.
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.
Unregistered retailing of tobacco is an offence punishable by a fine of up to £20,000 and/or imprisonment for a period of up to six months.
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. The penalty is a fine of up to £20,000 and/or imprisonment of up to six months.
A trading standards officer 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, (see below: 'Verifying a buyer's age').
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 which increases with the number of previous enforcement actions.
The evidence of a person's age that is required by law is the production of one of the following documents:
Always ask young people to produce proof of their age. Trading standards services and the government support the national Proof of Age Standards Scheme. There are a number of card issuers in the scheme, including CitizenCard and ValidateUK. The Scottish government endorses the Young Scot card.
Card issuers may supply material for you to display in your shop, telling young people where they can obtain a card. This way, if you have cause to refuse a sale, you can give youngsters some positive information.
If you, or any of your staff, doubt whether a customer is 18 or over, or whether their ID is genuine, refuse to sell them tobacco products or cigarette papers. You don't have to give a reason, and allowing them to persuade you against your better judgement could lead you to commit a criminal offence.
It is an offence for a person under 18 to purchase a tobacco product or cigarette papers and it is also an offence for a person of 18 or over to purchase a tobacco product or cigarette papers on behalf of a person under 18.
The law has a statutory defence available, namely that the person accused took reasonable steps to establish the customer's age. 'Reasonable steps' means asking the individual for evidence of their age, and that the evidence would convince a reasonable person. It is your responsibility to keep within the law and to have systems in place that will act as a 'due diligence' defence to an allegation that a sale of a tobacco product or cigarette papers or cigarette lighter refill has taken place to a person under the age of 18.
Offences are subject to the principle of vicarious liability, which means that they can occur even when the registered tobacco retailer is not on the premises. To avoid committing an offence, it is advised that the legislation is brought to the attention of all staff via regular training. 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 the manager or the owner.
Members of staff should be advised that they themselves will be personally liable if they sell to young persons in breach of the legal requirements.
All refused tobacco products or cigarette papers or cigarette lighter refills sales should be recorded on a refusal sales sheet or a refusal book. Some tills have a refusals system built in. Maintaining a refusal log will strengthen a case for due diligence. Logs should be checked by the owner of the business to ensure that all members of staff are using them.
If you possess an EPoS system, it may be possible to use it to remind staff via a prompt. Alternatively, stickers can be used over certain product bar codes.
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: October 2013