Namibia

Tobacco Products Control Act, 2010 (Act No. 1 of 2010)

 

 


GOVERNMENT GAZETTE

OF THE

REPUBLIC OF NAMIBIA

N$5.20 WINDHOEK -14 April 2010 No. 4458

CONTENTS

Page

GOVERNMENT NOTICE

No. 72 Promulgation of Tobacco Products Control Act, 2010 (Act No. 1 of 2010), of theParliament ..........................................................................................................................

Government Notice

OFFICE OF THE PRIME MINISTER

No. 72 2010

PROMULGATION OF ACT
OF PARLIAMENT

The following Act which has been passed by the Parliament and signed by the Presidentin terms of the Namibian Constitution is hereby published in terms of Article 56 of thatConstitution.

No. 1 of 2010: Tobacco Products Control Act, 2010.

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

ACT

To establish a Tobacco Products Control Committee to advise the Minister on matters relating to the use of tobacco products; to provide for the constitution, powers, duties and functions of the Committee; to provide for the reduction of demand for and supply of tobacco products; to provide for protection from exposure to tobacco smoke; to provide for the establishmentof the Tobacco Products Control Fund; to provide for matters relating to the enforcement of the Act; and to provide for matters incidental thereto.

(Signed by the President on 19 March 2010)

ARRANGEMENT OF SECTIONS

PART 1
INTRODUCTORY PROVISIONS

Section

1. Definitions

PART 2
TOBACCO PRODUCTS CONTROL COMMITTEE

2.
Establishment of Tobacco Products Control Committee
3.
Constitution of Committee
4.
Alternate members
5.
Qualifications of members
6.
Term of office of members
7.
Vacation of office by members and filling of vacancies
8.
Remuneration
9.
Conduct of members and disclosure of interest
10.
Meetings of Committee
11.
Subcommittees
12.
Consultants
13.
Secretary and staff of Committee
14.
Powers, duties and functions of Committee

PART 3
REDUCTION OF DEMAND FOR TOBACCO PRODUCTS

15.
Advertising, sponsorship and promotion
16.
Packaging and labelling of tobacco products

PART 4
REDUCTION OF SUPPLY OF TOBACCO PRODUCTS

17.
Measures to prevent illicit trade in tobacco products
18.
Prohibition of sale of tobacco products to persons under the age of 18 years
19.
Prohibition of free distribution and reward
20.
Restrictions on use of vending-machines and prohibition of such sale from datedetermined by Minister

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

PART 5
MANUFACTURING AND EXPORT STANDARDS

21. Standards for manufacturing and export of tobacco products

PART 6
PROTECTION FROM EXPOSURE TO TOBACCO SMOKE

22. Protection from exposure to tobacco smoke

PART 7
TOBACCO PRODUCTS CONTROL FUND

23.
Establishment of Tobacco Products Control Fund
24.
Finances of the Fund
25.
Utilisation of the Fund
26.
Administration of Fund and accountability
27.
Financial year of Fund and auditing of books. accounts and balance sheets
28.
Exemption from taxation and other charges

PART 8
PROVISIONS ON ENFORCEMENT OF ACT

29.
Complaints
30.
Appointment of inspectors
31.
Entry, search and inspection of place, premises, vessel, vehicle or public conveyance
32.
Presumptions and evidence
33.
Forfeiture and destruction
34.
Compounding of certain minor offences
35.
Jurisdiction of magistrates’ courts
36.
Levy on import, distribution or sale of tobacco products
37.
Regulations
38.
Short title and commencement

Preamble

ACKNOWLEDGING that the use of tobacco products

- has been increasing in Namibia;

- is extremely harmful to human health and that scientific evidence hasunequivocally established that exposure to tobacco smoke causes death, diseaseand disability and negatively impacts on the economy and the environment;

- is a developed habit among people of different ages in society and severely affectsthe health of individuals contrary to the provisions of Article 95(b) and (j), readtogether with Article 13 of the Namibian Constitution;

- is contrary to the goals, objectives and principles of the Namibian Health PolicyFramework;

- is widely advertised, targeting especially young people, hence the need to establishrobust programmes to break the growing habit of using tobacco products;

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

- is imposed on society by the tobacco industry, hence the strong need forparticipation of agencies and non-governmental organisations to developstrategies for the reduction of demand for tobacco products;

- is dependence forming, hence the need for creating awareness on the adversehealth and economic outcomes of the consumption of tobacco products;

REALISING that

- the association of the use of tobacco products with social success, businessadvancement and sporting prowess through advertising and promotion may havethe particularly harmful effects of encouraging children and young people to usetobacco products;

- everyone has a right to a healthy environment free of the harmful effects of thesmoke of tobacco products;

- the Government of the Republic of Namibia has as its obligation the responsibilityto protect the health of its citizens and the environment from the harmful effectof the smoke of tobacco products;

- the Government must adopt legislation to ensure that persons who are not smokersare protected from the smoke of tobacco products;

- the Government must adopt legislation to ensure that environments where peoplegather as groups must be free of all forms of smoke of tobacco products; and

RESOLVING to align the health system with the democratic values of the Constitutionand the World Health Organisation Framework Convention on Tobacco Control, and toenhance and protect the fundamental rights of citizens by discouraging the use, promotionand advertising of tobacco products in order to reduce the incidence of tobacco-relatedillness and death,

NOw THEREFORE BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:

PART 1
INTRODUCTORY PROVISIONS

Definitions

1. In this Act, unless the context otherwise indicates

“advertisement” means any picture, sign, symbol or other visual image (whether still ormoving), and any other message (whether audible or written or communicated in any othermanner) aimed at the public and designed to promote or publicise a tobacco product orto promote smoking behaviour, and includes the use in any advertisement or promotionaimed at the public of a tobacco product manufacturer’s company name where the nameor any part of the name is used as or is included in a tobacco product trade mark;

“brand element” includes the brand name, trade mark, trade name, distinguishingguise, logo, graphic arrangement, design, slogan, symbol, motto, selling message,print, type-face, recognisable colour and pattern of colours, and any other symbols ofproduct identification, that is likely to be taken as or confused with any brand of tobaccoproduct;

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“Committee” means the Tobacco Products Control Committee established by section 2;

“composition” means the content, arrangement or combination of substances includedin the processing and manufacture of a tobacco product;

“constituent”, in relation to any tobacco product, means nicotine, tar and any otherconstituent of a tobacco product or of tobacco smoke which the Minister may by noticein the Gazette declare to be a constituent for the purposes of this Act;

“emission” means any substance that is produced when a tobacco product is used;

“employment” means employment as contemplated in the definitions of “employee” and“employer” contained in section 1 of the Labour Act, 2007 (Act No. 1 l of 2007);

“Fund” means the Tobacco Products Control Fund established by section 23;

“indoor, enclosed or partially enclosed, area” includes any space covered by a roof orenclosed by one or more walls or sides, regardless of the type of material used for theroof, wall or sides, and regardless of whether the structure is permanent or temporary;

“ingredient” means any product component, material used to manufacture such component,residual substance from agricultural practices, storage and processing and substances thatcan migrate from packing into the product;

“levy” means a levy imposed under section 36(1);

“local authority” means a local authority council as defined in section 1 of the LocalAuthorities Act, 1992, and, in relation to a settlement area as defined in section 1 of theRegional Councils Act, 1992 (Act No. 22 of 1992), the regional council concerned, asthe case may be;

“local authority area” means a local authority area as defined in section 1 of the LocalAuthorities Act, 1992, and in relation to a settlement area as defined in section 1 of theRegional Councils Act, 1992, the area within the boundaries determined as contemplatedin section 31 (1) of the Regional Councils Act, 1992, as the case may be;

“manufacturer” includes, where the manufacturer is

(a) a company, its holding company or any subsidiary and any subsidiary of itsholding company;

(b) an entity other than a company, an entity that controls or is controlled bysuch manufacturer or that is controlled by the same entity that controls suchmanufacturer;

“Minister” means the Minister responsible for health;
“Ministry” means the ministry responsible for health;
“nicotine” means nicotine alkaloids;
“organised activity” means any activity or event

(a) which any member of the public attends or in which he or she participates;

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

(b) which is organised for the purposes of entertainment, sport or recreation or foreducational or cultural purposes; and

(c) where a tobacco product, brand element or tobacco manufacturer’s companyname is used in the name of or portrayal of the activity or event;

“owner of or person in charge of” means

(a) in the case of a public place owned by the State or occupied by staff members, thePermanent Secretary of a Ministry, office or agency as contemplated in section3(3) of the Public Service Act, 1995 (Act No. 13 of 1995);

(b) in the case of any other public place, the owner thereof, and includes

(i) if the owner is deceased, the executor of his or her estate;

(ii) if the estate of the owner has been sequestrated, the trustee of his or herinsolvent estate;

(iii) if the owner is under any legal disability, his or her legalrepresentative;

(iv) if the owner is a company or close corporation which is being woundup, the liquidator of such company or close corporation;

(v) the person in whom the ownership of land is vested by statute;

(vi) in the case of land which has been allotted, granted, sold or otherwisealienated by the State to any person, but which has not yet beentransferred in such person’s name, that person; and

(vii) the lessee of land held under a lease registered in the deeds registry;

“package” means any packing, carton wrapping or any other container in which tobacco
products are generally sold by retail or wholesale;
“Permanent Secretary” means the Permanent Secretary of the Ministry;
“prescribe” means prescribe by regulation made under section 37;
“private dwelling” means any part of

(a) any room or apartment of a building or structure which is occupied as a residence; or

(b) any building or structure or outdoor living area which is accessory to, and usedwholly or principally for, residential purposes;

“public conveyance” includes transporting people by means of any commercial charteredaircraft, ship, boat, train, bus, mini-bus or taxi;

“public place” means any indoor, enclosed or partially enclosed, area which is open tothe public and includes a workplace, a club, a private dwelling, if that private dwellingis used for any commercial childcare activity or for schooling or tutoring, and a publicconveyance;

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

“regulation” means a regulation made or in force under this Act;
“secretary” means the secretary designated under section 13;
“smoke” means to inhale, exhale, hold or otherwise have control over an ignited tobacco

product;

“staff member” means any staff member as defined in section 1 of the Public Service
Act, 1995 (Act No. 13 of 1995);
“tar” means the anhydrous and nicotine-free condensate of the smoke of a tobacco

product;
“this Act” includes any regulation made under this Act;
“tobacco industry” includes a tobacco manufacturer, a wholesale distributor or an importer

of tobacco products;
“tobacco product” means a product containing tobacco, that is intended for human
consumption, and includes, but is not limited to, any device, pipe, water pipe, papers,

tubes, filters, portion pouches or similar objects manufactured for use in the consumption
of tobacco;
“trade mark” includes

(a) any mark whether registered or registrable for trade purposes or any recognisedversion thereof that is likely to be taken as, or confused with, that trade mark;

(b) a certification trade mark or collective trade mark; and

(c) “a trade mark” as defined in section 1 of the Trade Marks in South West Africa Act, 1973 (Act No. 48 of 1973); and

“workplace”

(a) means any indoor, enclosed or partially enclosed, area in which employeesperform the duties of their employment;

(b) includes any corridor, lobby, stairwell, elevator, cafeteria, lounges, washroomor other common area frequented by such employees during the course of theiremployment; and

(c) includes vehicles used in the course of work.

PART 2
TOBACCO PRODUCTS CONTROL COMMITTEE

Establishment of Tobacco Products Control Committee

2. There is established a committee to be known as the Tobacco Products Control Committee.

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

Constitution of Committee

3. (1) The Committee consists of 12 members appointed by theMinister, subject to the provisions of this section as follows

(a) two persons, one of whom is the chairperson of the Committee andone of whom is a legal practitioner as defined in section 1 of the LegalPractitioners Act, 1995 (Act No. 15 of 1995);

(b) one registered medical practitioner who is a fully paid up member ofthe Medical and Dental Council of Namibia contemplated in section 3of the Medical and Dental Act, 2004 (Act No. 10 of 2004), nominatedby the Medical and Dental Council of Namibia;

(c) one registered nurse who is a fully paid up member of the NursingCouncil of Namibia contemplated in section 3 of the Nursing Act, 2004(Act No. 8 of 2004), nominated by the Nursing Council of Namibia;

(d) one member representing a non-governmental organisation, nominatedby a non-governmental organisation which the Minister reasonablybelieves represents the interests of persons whose health has beenadversely affected by the use of tobacco products;

(e) six staff members, one each respectively nominated by the Ministerresponsible for finance, the Minister responsible for agriculture, theMinister responsible for trade and industry, the Minister responsiblefor the environment, the Minister responsible for labour and the Ministerresponsible for information;

(f) one member nominated by the board of the National Youth Councilestablished by the National Youth CouncilAct, 2009 (Act No. 3 of 2009);and

(g) one member representing the NUNW.

(2) The Minister must in writing invite the Medical and Dental Councilof Namibia, the Nursing Council of Namibia, the non-governmental organisation, theMinisters concerned and the National Youth Council contemplated in subsection (1)(b)to (f), as the case may be, to nominate, within the period stated in the notice, persons asmembers of the Committee as contemplated therein.

(3)
If any Council, organisation or Minister contemplated in subsection (2)fails to submit any nomination concerned as contemplated therein, the Minister mustappoint an appropriate member or staff member as a member of the Committee, and aperson so appointed is deemed to have been appointed in terms of subsection (1).
(4)
The Minister must as soon as possible after the constitution of theCommittee or any change in the constitution of the Committee, as the case may be, bynotice in the Gazette publish the names of the members of the Committee and the datesof commencement of their terms of office.

Alternate members

4. (1) The Minister may appoint for each member of the Committeea person to be the alternate of the member concerned.

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

(2) The alternate to a member of the Committee may, in the event of themember’s absence from a meeting of the Committee, attend the meeting in the capacityof a member.

Qualifications of members

5. (1) No person is qualified to be a member of the Committee if he or she

(a) is not a Namibian citizen or has not been admitted to Namibia for permanent residence;

(b) is a member of the National Assembly or the National Council;

(c) is an unrehabilitated insolvent;

(d) is of unsound mind and has been so declared by a competent court;

(e) has been found guilty by a competent court of corrupt practices or anycrime, and has been sentenced to imprisonment without the option of afine;

(f) is an employee, employer, director, member or trustee of any business,company, close corporation or trust involved in the tobacco industry inany way; or

(g) has any shares in any business, company, close corporation or trustinvolved in the tobacco industry.

(2) Any person who is in terms of subsection (1) disqualified to be a memberof the Committee and who, while he or she is so disqualified and knowing or havingreasonable grounds for knowing that he or she is so disqualified, sits as a member of theCommittee, commits an offence and is liable to a penalty of N$500 for each day on whichhe or she so sits, which may be recovered by the Committee by action in any competentcourt for the benefit of the Fund.

Term of office of members

6. (1) Subject to section 7, a member of the Committee holds officefor a term of three years.

(2) AmemberoftheCommitteeiseligibleforreappointmentattheexpirationof that term, but may not hold office for more than two consecutive terms.

Vacation of office by members and filling of vacancies

7. (1) A member of the Committee must vacate her or his office if the member

(a) is convicted of an offence and sentenced to imprisonment without theoption of a fine;

(b) resigns his or her office by giving the Minister one month’s notice inwriting of his or her intention to resign;

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

Committee from office if the Minister, after giving the member a reasonable opportunity

(c) has been absent for three consecutive meetings of the Committee withoutleave of the Committee;
(d) is removed from office by the Minister under subsection (2); or
(e) is subject to disqualification as stated in section 5.
(2) The Minister may, by notice in writing, remove a member of the

to be heard, is satisfied that the member

(a) is guilty of neglect of duty or misconduct;

(b) is incapable, by reason of physical or mental illness, of performing theduties of his or her office;

(c) is an employee, employer, director, member or trustee of any business,company, close corporation or trust involved in the tobacco industry inany way; or

(d) has any shares in any business, company, close corporation or trustinvolved in the tobacco industry.

(3) If the office of a member of the Committee becomes vacant, the vacancymust be filled in the manner provided for in section 3, by the appointment of anotherperson as member of the Committee for the unexpired portion of the term of office ofthe person who ceased to hold office.

Remuneration

8. (1) Members

(a) of the Committee, and

(b) of any subcommittee who are not members of the Committee,

who are not in full time employment of the State must be paid such remuneration orallowances, as well as such other benefits, as the Minister, with the concurrence of theMinister responsible for finance, may determine.

(2) Any remuneration, allowance or benefit contemplated in subsection (1)may differ from member to member according to the office held, and duties and functionsperformed by, the member concerned.

Conduct of members and disclosure of interest

9. (1) AmemberoftheCommittee,andamemberofanysubcommitteewho is not a member of the Committee, may not

(a) engage in an activity that may undermine the integrity of the Committeeor a subcommittee;

(b) participate in any investigation or decision concerning a matter in respectof which the member has a financial or other personal interest; or

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

(c) use any confidential information obtained in the performance of his orher functions as a member to obtain, directly or indirectly, a financial orother advantage for himself or herself or any other person.

(2) Every member of the Committee and every member of any subcommitteewho is not a member of the Committee, must in writing disclose to the Minister any director indirect financial interest which the member has or acquires in any business carried onin Namibia or elsewhere or in any body corporate carrying on any business in Namibiaor elsewhere.

(3) A member who has or acquires any financial or other personal interest,either directly or indirectly, in any matter which is before the Committee or a subcommitteefor discussion and determination must

(a) immediately and fully disclose the interest to the Committee or thesubcommittee, as the case may be; and

(b) withdraw from any further discussion or determination by the Committeeor subcommittee, as the case may be, of that matter.

Meetings of Committee

10. (1) The Committee must hold at least one meeting per year and

(a) the first meeting of the Committee must be held at a date, place and timedetermined by the chairperson;

(b) any meeting of the Committee thereafter must be held at a date, placeand time determined by the Committee.

(2) If for any reason a meeting determined by the chairperson or theCommittee, as the case may be, cannot take place, the secretary, with the concurrence ofthe chairperson, must convene the next meeting of the Committee.

(3) The chairperson

(a) may at any time convene a special meeting of the Committee;

(b) must convene a special meeting of the Committee if requested theretoby the Minister or at least three members of the Committee.

(4) The chairperson presides at all meetings of the Committee at which heor she is present.

(5) The members of the Committee must at the first meeting of the Committeeelect a deputy chairperson from their ranks.

(6) If

(a) the chairperson is absent from a meeting of the Committee, the deputychairperson must preside at that meeting;

(b) both the chairperson and the deputy chairperson are absent from a meetingof the Committee, the members of the Committee present thereat mustelect from their ranks a person to preside at that meeting,

Act No. 1, 2010 TOBACCO PRODUCTS CONTROL ACT, 2010

and the deputy chairperson or person so elected, as the case may be, may perform all thefunctions and duties and exercise all the powers of the chairperson.

matter before the Committee for determination, to attend a meeting of the Committee

(7) At a meeting of the Committee
(a) the majority of the members of the Committee constitutes a quorum;
(b) all questions are decided by a majority of votes of the members presentand voting; and
(c) the member presiding has a deliberative vote and, in the event of anyequality of votes, also a casting vote.
(8) The Committee may invite any person who has expert knowledge of a

and to take part in discussions in relation to that matter, but such person has no vote.

(9) The secretary must keep or cause records to be kept of all the proceedingsat meetings of the Committee.

(10)
The secretary must submit or cause to be submitted as soon as possibleafter any meeting of the Committee has taken place, but not later than 15 working daysafter the meeting, a copy of the minutes of that meeting to the Minister and the PermanentSecretary.
(11)
The Minister may make rules regarding the holding of and procedure atmeetings of the Committee.

Subcommittees

11. (1) The Committee may establish one or more subcommittees to

(a) investigate and report to the Committee on any matter which theCommittee may refer to the subcommittee for the purpose; or

(b) exercise any power or perform any function of the Committee which theCommittee may delegate or assign to the subcommittee.

(2) A subcommittee may consist of members of the Committee, or membersof the Committee and other persons, as the Committee may determine.

(3) The Committee must designate a member of the Committee to be thechairperson of a subcommittee.

(4) The chairperson of the Committee may attend any meeting of asubcommittee of which he or she is not a member and may take part in the proceedingsthereof as if he or she were appointed as a member thereof.

(5) The Committee may at any time dissolve or reconstitute a subcommittee.

(6) The Committee is not divested or relieved of a power or function whichit has delegated or assigned to a subcommittee.

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(7) A decision by a subcommittee in the exercise of a power delegated tothe subcommittee is subject to approval by the Committee, and the Committee may atany time vary or set aside the decision.

Consultants

12. The Committee or a subcommittee, with the approval of the Committee,may engage persons to give advice to, and perform services for, the Committee or thesubcommittee, as the case may be, on such terms and conditions of engagement as theCommittee, or the subcommittee, with the approval of the Committee, may determine.

Secretary and staff of Committee

13. (1) The Minister

(a) must designate a staff member in the Ministry to act as the secretary ofthe Committee; and

(b) may designate such other staff members in the Ministry to assist thesecretary in the implementation and performance of the administrativeand secretarial duties and functions of the Committee.

(2) In addition to any other duties and functions imposed by or in termsof this Act, the secretary is responsible for the performance of any secretarial servicesconcerned and the execution of the resolutions of the Committee.

Powers, duties and functions of Committee

14. (1) In addition to any other powers and functions conferred on theCommittee, it has the following powers, duties and functions

(a) to make recommendations to the Minister in relation to the applicationof this Act, any amendment to this Act and the making of regulations;

(b) to advise the Minister on the duties and functions to be performed in termsof this Act and on matters referred to the Committee by the Minister;

(c) to inquire into, and advise the Minister on, matters relating to the controlof tobacco products in Namibia;

(d) to carry out research into matters referred to the Committee by theMinister;

(e) to advise the Minister and the Permanent Secretary on the administrationof the Fund;

(f) either on its own initiative, or at the request of the Minister, to consultwith the Minister on any matter relating to the control of tobacco productsin Namibia;

(g) to develop comprehensive public awareness programmes on the healthdangers and negative economic and environmental outcomes of the useof tobacco products; and

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(h) to perform any other duty or function assigned to the Committee by theMinister.

(2) Until the Committee is fully constituted, and during any period of timewhen the Committee is unable to function for any reason, the Minister, or if he or she isnot available for any reason, the Deputy Minister responsible for health, or if he or sheis not available for any reason, the Permanent Secretary, may perform the duties andfunctions of the Committee until the Committee is fully constituted or able to functionagain.

(3) Any duty or function performed by the Minister, the Deputy Minister orthe Permanent Secretary, as the case may be, in accordance with subsection (2) is deemedto have been performed by the Committee.

PART 3
REDUCTION OF DEMAND FOR TOBACCO PRODUCTS

Advertising, sponsorship and promotion

15. (1) Subject to subsection (3), no person may

(a) publish, display or broadcast an advertisement relating to the use oftobacco products, including the use of tobacco trade marks, logos, brandnames or company names used on tobacco products; or

(b) use tobacco trade marks, logos, brand names or company names usedon tobacco products for the purposes of advertising any organisation,service activity or event.

(2) No manufacturer, importer, distributor or retailer of tobacco products may

(a) organise or promote any organised activity that is to take place in wholeor in part in Namibia;

(b) make any financial contribution to any organised activity that is totake place, or is taking place, or has taken place in whole or in part inNamibia;

(c) make any financial contribution to any person in respect of

(i) the organisation or promotion of any organised activity inNamibia by that person;

(ii) the participation, by that person, in any organised activity that is totake place, or is taking place in whole or in part, in Namibia.

(3) A retailer of tobacco products which posts in accordance with anyregulation signs at the point of sale that indicate the availability of tobacco products andthe price thereof does not contravene subsection (1).

(4) No replica toy or candy tobacco product may be sold or displayed at anyretail or wholesale point or any other place where business is carried on.

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(5) Notwithstanding this section, the Minister may provide by regulation
(a) for the phasing out of existing sponsorship or contractual obligations, ifany; and
(b) for matters relating to advertisements of tobacco products.

(6) Any person who contravenes or fails to comply with subsection (1), (2)or (4), commits an offence and is liable on conviction to a fine not exceeding N$200 000or to imprisonment for a period not exceeding 10 years or to both such fine and suchimprisonment.

Packaging and labelling of tobacco products

16. (1) Where a person sells or imports for sale any tobacco productand the tobacco product is contained in a package

(a) the package must be labelled in the prescribed manner and must bearthe prescribed warning concerning the health hazards incidental to thesmoking of tobacco products and other relevant information; and

(d) the quantities of the constituents present in the tobacco product concernedmust be stated on the package.

(2) Any person who contravenes or fails to comply with subsection (1),commits an offence and is liable on conviction to a fine not exceeding N$200 000or to imprisonment for a period not exceeding 10 years or to both such fine and suchimprisonment.

PART 4
REDUCTION OF SUPPLY OF TOBACCO PRODUCTS

Measures to prevent illicit trade in tobacco products

17. (1) No person may sell or import for sale any tobacco product, unlessthe package bears the statement “Sales only allowed in Namibia” or any other effectivemarking indicating the origin thereof and the final destination for sale.

(2) Any person who contravenes or fails to comply with subsection (1),commits an offence and is liable on conviction to a fine not exceeding N$200 000or to imprisonment for a period not exceeding 10 years or to both such fine and suchimprisonment.

Prohibition of sale of tobacco products to persons under the age of 18 years

18. (1) No person may

(a) sell or supply any tobacco product to any person under the age of 18years, whether for his or her personal use or not; or

(b) engage any person under the age of 18 years in the selling of tobaccoproducts.

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(2) Any person who sells by retail or wholesale any tobacco product mustprominently display for the notice of the public a notice to the effect that the sale oftobacco products to a person who is under the age of 18 years, is prohibited.

(3) The Minister may prescribe the size and content of the notice referredto in subsection (2).

(4) Any person who contravenes or fails to comply with subsection (1) or(2), commits an offence and is liable on conviction to a fine not exceeding N$100 000or to imprisonment for a period not exceeding five years or to both such fine and suchimprisonment.

Prohibition of free distribution and reward

19. (1) No manufacturer, distributor, importer or retailer of a tobaccoproduct may for free, or at a reduced price, other than a normal trade discount

(a) distribute any tobacco product; or

(b) supply any tobacco product,

to any person for subsequent distribution.

(2)
No person may offer any gift, cash rebate or right to participate in anycontest, lottery or game, to any person in consideration of the purchase of a tobaccoproduct, or the furnishing of evidence of such a purchase.
(3)
Any person who contravenes or fails to comply with subsection (1) or(2), commits an offence and is liable on conviction to a fine not exceeding N$200 000or to imprisonment for a period not exceeding 10 years or to both such fine and suchimprisonment.

Restrictions on use of vending-machines and prohibition of such sale from date determined by Minister

20. (1) From a date determined by the Minister by notice in the Gazette,no person may sell tobacco products from a vending-machine.

(2)
Until the date determined by the Minister as contemplated in subsection(1), the sale of tobacco products from vending-machines is restricted to places in whichpurchases from such machines are inaccessible to persons under the age of 18 years.
(3)
It is the responsibility of any person during such time as he or she isresponsible for or has control of the premises in which any vending-machine is kept toensure that no person under the age of 18 years makes use of any such machine.

(4) The Permanent Secretary may in writing direct the owner of a vending-machine in question or the person in control thereof

(a) to take such precautionary measures as are specified in the direction toprevent the vending-machine being used by persons under the age of 18years; or

(b) to remove the vending-machine from the premises within the periodspecified in the direction.

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(5) Any person who contravenes or fails to comply with subsection (1), (2)or (3) or with a directive issued under subsection (4), commits an offence and is liableon conviction to a fine not exceeding N$100 000 or to imprisonment for a period notexceeding five years or to both such fine and such imprisonment.

PART 5 MANUFACTURING AND EXPORT STANDARDS

Standards for manufacturing and export of tobacco products

21. (1) All tobacco product manufacturers must comply with suchstandards as may be prescribed, irrespective of whether the tobacco product concernedis intended for export or not.

(2) Every tobacco product manufacturer must provide, in the prescribedmanner and within the prescribed period, such information about the product and itsemissions to the Minister and the public as may be prescribed.

(3) ApersonmayonlyexportatobaccoproductfromNamibiaiftheproductmeets the standards contemplated in subsection (1) as well as the product and testingstandards of the country of final destination.

(4)
If no product and testing standards exist in the country of final destination,the tobacco product intended for export must comply with the standards referred to insubsection (1).
(5)
Any person who contravenes or fails to comply with any standardsprescribed under subsection (1) or fails, within the prescribed periods, to provide theMinister with information prescribed under subsection (2) commits an offence and isliable on conviction to a fine not exceeding N$200 000 or to imprisonment for a periodnot exceeding 10 years or to both such fine and such imprisonment.

PART 6 PROTECTION FROM EXPOSURE TO TOBACCO SMOKE

Protection from exposure to tobacco smoke

22. (1) The smoking of tobacco products in

subsection (1) must ensure that no person smokes in that place or area.

(a) a public place;
(b) any area within a prescribed distance from a window of, ventilation inletof, doorway to or entrance into a public place; or
(c) any place contemplated in subsection (3),
is prohibited.
(2) The owner of or person in charge of a place or an area contemplated in

(3) The Minister may prohibit the smoking of any tobacco product in anyprescribed outdoor public place, or such portion of an outdoor public place as may beprescribed, if persons are likely to congregate within close proximity of one another orwhere smoking may pose a fire or other hazard.

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(4) The owner of or person in charge of a place or area contemplated insubsection (1) must display the prescribed signs and must make the prescribed publicannouncements in order to inform any person who enters or who is in or on such placeor area of any prohibitions on smoking.

(5) An employer must ensure that

(a) employees may object to smoking in the workplace in contravention ofthis Act without retaliation of any kind;

(b) employees who do not want to be exposed to tobacco smoke in theworkplace are not so exposed;

(c) it is not a condition of employment, expressly or implied, that anyemployee is required to work where smoking is permitted; and

(d) employees are not required to sign any indemnity for working wheresmoking is permitted.

(6) Any person who contravenes or fails to comply with subsection (1)commits an offence and is liable on conviction to a fine not exceeding N$500 or toimprisonment for a period not exceeding one month or to both such fine and suchimprisonment.

(7) Any person who contravenes or fails to comply with subsection (2) or

(4)
commits an offence and is liable on conviction to a fine not exceeding N$60 000 orto imprisonment for a period not exceeding three years or to both such fine and suchimprisonment.
(8)
Any person who contravenes or fails to comply with subsection (5)commits an offence and is liable on conviction to a fine not exceeding N$100 000 orto imprisonment for a period not exceeding five years or to both such fine and suchimprisonment.

PART 7
TOBACCO PRODUCTS CONTROL FUND

Establishment of fund for control of tobacco products

23. There is established a fund to be known as the Tobacco Products Control Fund.

Finances of the Fund

24. The Fund consists of

(a) moneys appropriated by Parliament for purposes of the Fund;

(b) donations or contributions made to the Fund for the purpose of theachievement of its objectives;

(c) moneys accruing to and vesting in the Fund from any other source andwhich accrues to the Fund;

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(d) interest and dividends derived from the investment of moneys made onbehalf of the Fund; and

(e) relevant levies imposed by the Minister on the sale of tobaccoproducts.

Utilisation of the Fund

25. (1) The Fund may be utilised

(a) for the management and control of tobacco related issues;

(b) for defraying expenses incurred in administering the Fund or by membersof the Committee or subcommittees of the Committee;

(c) to contribute to the treatment of tobacco related illnesses and diseases;

(d) to conduct training on tobacco related programmes; and

(e) to provide funding for

(i) the formulation and implementation of projects and programmesin order to control the smoking of tobacco products; and

(ii) technical assistance, guidance and training in the identification,planning, preparation, appraisal, monitoring, evaluation,financing, implementation or management of projects andprogrammes referred to in subparagraph (i).

(2) Specific donations to the Fund may be utilised in a manner as agreed tobetween the Fund management and the donor.

Administration of Fund and accountability

26. (1) The Permanent Secretary is, for the purposes of the State FinanceAct, 1991 (Act No. 31 of 1991), the accounting officer of the Fund.

(2) T