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Slapped with a fine or a slap on the wrist? Enforcing tobacco licensing legislation
  1. Suzan Burton1,
  2. Scott C Walsberger2,
  3. Kelly Williams2
  1. 1 University of Western Sydney, School of Business, Sydney, New South Wales, Australia
  2. 2 Cancer Council NSW, Woolloomooloo, New South Wales, Australia
  1. Correspondence to Prof. Suzan Burton; s.burton{at}uws.edu.au

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In order to decrease the promotion of tobacco through retail outlets, the WHO’s Framework Convention on Tobacco Control recommends a total ban on any display of and/or visibility of tobacco products.1 Enforcing such a ban is much easier if there is an accurate list of tobacco retailers, a list which is provided by a tobacco retailer licensing system. Correspondingly, the WHO’s Protocol to Eliminate Illicit Trade in Tobacco Products recommends licensing retailers of tobacco products ‘to the extent considered appropriate…and when not prohibited by national law’ (WHO, p11).2 The protocol goes on to recommend a system to ‘undertake … periodic review, renewal, inspection or audit of licences where appropriate’ and to, where appropriate, ‘renew, suspend, revoke and/or cancel licences’.2 Consistent with those recommendations, there has been strong community support3 and increasing academic interest in the value of regulating the retail tobacco market,4 5 including, though not limited to, schemes that allow retailer licences (or ‘permits’) to be used to decrease the density of tobacco retailers.6 One way to increase compliance with tobacco regulation (as well as potentially achieve reductions in the number of retailers) is to permanently revoke the licences of retailers involved in serious and/or repeated breaches of tobacco legislation.

An effective licensing system, however, requires, as per the WHO protocol, robust enforcement efforts to inspect retailers at sufficient frequency to deter violations, and where appropriate, impose penalties such as fines, or potentially the loss of the right to sell tobacco. There are only limited data on compliance with tobacco regulations,7–10 but one study in New South Wales (NSW), the largest state in Australia, found that 6.9% of audited retailers failed to comply with the state’s legislative requirement that retailers be registered to sell tobacco.11 The study also estimated that tobacco retailers would only be visited, on average, once every 3.2 years, and found no evidence that any NSW tobacco retailer had been prohibited from selling tobacco due to non-compliance with tobacco retailing laws within 6 years of their inception.11 This is despite government data that found that 4% of outlets did not comply with prohibitions on sales to minors.12 As a percentage of the estimated number of retailers in NSW (9597),11 that would mean that around 385 (0.04×9597) retailers have been found to sell cigarettes to minors but are still allowed to sell tobacco. If tobacco retailers do not believe that they face a significant chance of being prosecuted for violating tobacco laws, or of receiving a significant penalty if they do so, then those regulations are likely to be violated more often.

Given the importance of enforcement activities and appropriate penalties, it is therefore encouraging that a tobacco retailer in NSW was recently found guilty of 36 tobacco-related offences for selling tobacco without appropriate health warnings, and fined $72 000 and banned from selling tobacco for a 1-year period.13 Under the NSW Public Health (Tobacco) Act 2008, retailers are suspended from selling tobacco for 12 months if convicted of the same violation of the Act three times within a 3-year period, so this retailer must have been convicted at least twice before for the same offence within the previous 3 years. In that context, the size of the fine and a 1-year suspension—rather than loss of the right to sell tobacco permanently—might be seen as light. Given the apparent low level of inspection of tobacco retailers, the low fine if successfully prosecuted, the requirement for repeated convictions before a retailer can be banned from selling tobacco, and the limited time of the ban, the enforcement system in NSW (and probably in many other jurisdictions) would appear inconsistent with the WHO’s recommendations for periodic review and, where appropriate, revocation of the licence to sell tobacco.

While the details of this case and the associated legislation are particular to NSW, they provide a stark reminder that without appropriate enforcement processes and penalties, licensing of tobacco retailers will be much less effective. In designing any tobacco licensing system, regulatory bodies should ensure that appropriate resources are available for regular inspection of retailers (possibly funded by licensing fees), potentially including increased penalties for repeated violations, as is common in the USA for selling tobacco to minors.14 Inspection should be sufficiently frequent (possibly with increased inspection following repeated violations), and the penalties following successful prosecution high enough, to together provide retailers with sufficient deterrent to violate tobacco retailing legislation.

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Footnotes

  • Contributors SW and SB jointly had the idea. SW did the first draft, which was extended by SB. KW contributed to the writing. All authors approved the final manuscript.

  • Competing interests No, there are no competing interests.

  • Patient consent The study does not involve human subjects.

  • Provenance and peer review Not commissioned; externally peer reviewed.

  • Data sharing statement We have no additional data available for sharing at this time.

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