OF THE
N$5.20 WINDHOEK -14 April 2010 No. 4458
CONTENTS
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No. 72 Promulgation of Tobacco Products Control Act, 2010 (Act No. 1 of 2010), of theParliament ..........................................................................................................................
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
PART 3
REDUCTION OF DEMAND FOR TOBACCO PRODUCTS
PART 4
REDUCTION OF SUPPLY OF TOBACCO PRODUCTS
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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
PART 8
PROVISIONS ON ENFORCEMENT OF ACT
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
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;
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(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;
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“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.
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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.
4. (1) The Minister may appoint for each member of the Committeea person to be the alternate of the member concerned.
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(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.
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;
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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.
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.
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
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(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,
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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.
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.
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.
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.
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.
(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.
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
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.
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.
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) The Permanent Secretary is responsible for the administration of the Fund,subject to the directions of the Minister given after consultation with the Committee, andto the rules made under subsection (3).
(3) The Minister may, with the concurrence of the Minister responsible forfinance, make rules relating to the administration of the Fund.
(4) The Permanent Secretary must, subject to this section, open and maintaina banking or savings account in the name of the Fund with
(a) any banking institution or building society registered under the lawsgoverning banking institutions and building societies in Namibia; or
(b) the Post Office Savings Bank established in terms of the Posts andTelecommunications Act, 1992 (Act No. 19 of 1992).
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Financial year of fund and auditing of books, accounts and balance sheets
27. (1) The financial year of the Fund ends on 31 March in each year.
(2) The Permanent Secretary must
(a) keep such books of account as are necessary to represent fairly the stateof affairs and business of the Fund and to explain the transactions andfinancial position of the Fund; and
(b) not later than three months after the end of each financial year, submitsuch accounts to the Auditor-General for audit.
(3) The Auditor-General must submit a report on the audit of the Fund to theMinister who must table the report in the NationalAssembly within 60 days, if the NationalAssembly is in session, or, if it is not in session, within 30 days after commencement ofits next session.
(4) Any money of the Fund which is not required for immediate use maybe invested as the Minister, with the concurrence of the Minister responsible for finance,may direct.
(5) Any unexpended balance in the Fund at the end of any financial yearmust be carried forward as a credit in the Fund to the ensuing financial year.
Exemption from payment of tax and other charges
28. No tax or charge on income or transfer or stamp duty imposed by orunder any law is payable by the Fund.
PART 8
PROVISIONS ON ENFORCEMENT OF THE ACT
29. (1) Any person who believes on reasonable grounds that there hasbeen a contravention of this Act in respect of any public place may in writing complainto the owner or person in charge thereof, specifying the particulars of the complaint.
(2) The owner or other person referred to in subsection (1) must, within 10working days of receiving a complaint referred to in that subsection, investigate or causethe complaint to be investigated, and if it appears that a contravention has occurred, heor she must try to resolve the complaint.
(3) If a contravention referred to in subsection (1) is on the part of
(a) the owner or person in charge of the public place concerned, such owneror person must resolve the cause of the complaint or give an assurancethat satisfies the complainant that there will be no repetition of the causeof the complaint;
(b) any employee or other person in such place, the owner or other personreferred to in subsection (1) must seek to obtain from that employee orother person an assurance that satisfies the owner or person concernedthat there will be no repetition of the cause of the complaint.
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(4) Acomplainantisentitledtobepresentatanymeetingcalledbytheowneror other person referred to in subsection (1) for the purpose of resolving the complaintand avoiding future causes of complaint.
Appointment of inspectors
30. (1) The Minister may
(a) subject to the laws governing the public service, appoint any suitableperson as an inspector;
(b) designate any staff member in the Ministry as an inspector,
to perform the powers contemplated in section 31.
Entry, search and inspection of place, premises, vessel, vehicle or public conveyance
31. (1) In order to monitor and enforce compliance with this Act in sofar as it relates to the advertisement and sale of tobacco products and the illicit trade oftobacco products, including counterfeit and contraband tobacco products, an inspectormay without warrant or notice, at any reasonable time enter any place, premises, vessel,vehicle or public conveyance, which is not a home.
(2) An inspector may enter a home only
(a) with the consent of the owner or occupier; or
(b) if authorised by a warrant under subsection (3) to do so.
(3) A magistrate, or judge of the High Court, in chambers and havingjurisdiction may issue a warrant on written application by an inspector stating underoath or affirmation the reasons for the need to enter the place in order to monitor andenforce compliance with this Act as contemplated in subsection (1).
(4) InordertomonitorandenforcecompliancewiththisActascontemplatedin subsection (1) an inspector may
(a) question any person either alone or in the presence of any other personon any matter to which this Act relates;
(b) order any person who has control over or custody of any book, document,tobacco product or thing to produce without delay, at such time and placeas may be determined by the inspector, such book, document, tobaccoproduct or thing;
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(c) seize any book, document, tobacco product or thing which in the opinionof the inspector may serve as evidence in any matter in terms of thisAct;
(d) examine or cause to be examined, make extracts from or copies of, anybook, document, tobacco product or thing produced to or seized by theinspector and order any person who in the opinion of the inspector isqualified to do so to explain any entry in the book, document or thing;and
(e) order an employee to appear before the inspector at such time and placeas may be determined by the inspector and question that employee.
(5) An inspector performing any function in terms of this section
(a) may be accompanied by an interpreter and any other person reasonablyrequired to assist in conducting the inspection;
(b) must produce on request the certificate of appointment referred to insection 30(3);
(c) must provide a receipt for any book, document, tobacco product or thingseized or produced in terms of subsection (4); and
(d) must return anything so seized or produced within a reasonable time.
(6) Any person who
(a) fails to give or refuses access to an inspector who requests entrance toany premises;
(b) hinders, opposes, obstructs or unduly influences an inspector who isexercising a power or performing a duty conferred or imposed under orby this Act;
(c) fails or refuses to give information that he or she may lawfully be requiredto give to an inspector; or
(d) gives to an inspector false or misleading information knowing it to befalse or misleading,
commits an offence and is liable on conviction to a fine not exceeding N$50 000 orto imprisonment for a period not less than five years or to both such fine and suchimprisonment.
Presumptions and evidence
32. In criminal proceedings relating to this Act
(a) a copy of or extract from a book, document or thing made by an inspectorunder section 31(4)(d) and certified by him or her to be true and correct,is presumed, unless the contrary is proved, to be a true and correct copyof or extract from the relevant book, document or thing, and is on itsproduction in court prima facie proof of any entry to which it relates;
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| (b) | a certificate stating the result of an examination, analysis or tests carriedout in respect of a tobacco product and purporting to be signed by theanalyst who carried out the examination, analysis or test, must beaccepted as prima facie proof of the facts stated in the certificate; | |
| (c) | a quantity of a tobacco product in or upon any place, premises, vessel,vehicle or public conveyance at the time a sample of it is obtained by aninspector for the purposes of this Act is presumed, unless the contraryis proved, to be in the same condition or possess the same properties assuch sample. | |
33. (1) ThecourtconvictinganypersonofanoffenceunderthisActmaydeclare any tobacco product or other thing to which the offence relates, to be forfeitedto the State.
(2) A tobacco product or any other thing forfeited under subsection (1) mustbe destroyed or otherwise dealt with as the Permanent Secretary may direct.
Compounding of certain minor offences
34. (1) If a person receives from an inspector a notification in writingalleging that that person has committed, at a place and on a date and at a time or duringa period specified in the notification, an offence likewise specified, namely
(a) a contravention of or failure to comply with section 15(1), (2) or (4), 16or 17;
(b) a contravention of or failure to comply with section 18(1) or (2);
(c) a contravention of or failure to comply with section 19(1) or (2);
(d) a contravention of or failure to comply with section 20(1), (2) or (3); or
(e) a contravention of or failure to comply with section 22(1), (2), (4) and(5),
and specifying the amount of the fine contemplated in subsection (6) that a court tryingthat person for the offence in question would probably impose on him or her, that personmay within 30 days after the receipt of the notification deliver or transmit the notification,together with a sum of money equal to that amount, to the magistrate of the district orarea wherein the offence is alleged to have been committed, and thereupon that personmay not be prosecuted for having committed that offence.
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(a) in the case of a contravention of or failure to comply with section 22(1),the amount of N$500;
(b) in the case of a contravention of or failure to comply with section 15(1),
Jurisdiction of magistrate’s courts
35. Notwithstanding any other law, a magistrate’s court has jurisdiction toimpose any penalty provided for in or under this Act.
Levy on import, distribution or sale of tobacco products
36. (1) The Minister, in consultation with the Minister responsible forfinance, may by regulation impose a levy on the import, distribution or sale of tobaccoproducts.
(2) Alevyreferredtoinsubsection(1)ispayabletotheFundintheprescribedmanner and at the prescribed times.
(3) Regulations made in terms of subsection (1) may prescribe
(a) the rate and manner of calculating or determining the levy or the amountof the levy;
(b) the periods and methods of assessment of the levy;
(c) the information to be provided to the Permanent Secretary for the purposeof assessing the levy;
(d) in which manner and when the levy is payable;
(e) by whom the levy is payable; and
(f) penalties for the late payment of the levy, or for providing falseinformation or for the failure to provide information to the PermanentSecretary relating to the assessment of the levy.
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(4) Any person who fails to pay any levy referred to in this section in theprescribed manner and at the prescribed times commits an offence and is liable onconviction to a fine not exceeding N$50 000 or to imprisonment for a period not lessthan five years or to both such fine and such imprisonment.
Regulations
37. (1) The Minister may make regulations in relation to
(a) the manner or method of determining the quantities of constituents intobacco products;
(b) the location, content, size and format of any sign required in terms ofthis Act;
(c) the standards that a tobacco product must comply with, including
(i) the amounts of substances that may be contained in the productor its emissions;
(ii) substances that may or may not be added to the product;
(iii) the ignition propensity of cigarettes; and
(iv) product design and composition;
(d) methods to access conformity, and methods of testing and measuringcompliance, with any prescribed standard;
(e) any information that a manufacturer of a tobacco product must submitto the Minister and to the public, including information in respect of
(i) research conducted into a tobacco product by a manufactureror by a person who conducted research paid for in whole or inpart by a tobacco manufacturer;
(ii) the quantity of a tobacco product manufactured;
(iii) marketing expenditure; and
(iv) information on product composition, ingredients, hazardousproperties and emissions;
(f) any ancillary or incidental administrative or procedural matter that isnecessary to be prescribed for the proper implementation or administrationof this Act; and
(g) any other matter required or permitted to be prescribed in terms of thisAct in order to achieve the objects of this Act.
(2) Regulations made under subsection (1)(a) may prescribe for thedetermination of the quantities of constituents in tobacco products any manner or methodor standards set out in a publication which in the opinion of the Minister is generallyrecognized as authoritative.
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(3) The Minister must, not less than three months before issuing anyregulation under this Act, cause a draft of the regulation to be published in the Gazette,together with a notice declaring the intention of the Minister to issue such a regulationand inviting interested persons to furnish him or her with any comments thereon orrepresentations in connection therewith within a specified period.
(4) Subsection (3) does not apply in respect of
(a) a regulation which, after that subsection have been complied with,has been amended by the Minister in consequence of comments orrepresentations received by the Minister in pursuance of the noticepublished in terms of that subsection;
(b) any regulation in respect of which the Minister is of the opinion that itis in the public interest that it be issued without delay.
(5) A regulation made in terms of subsection (n( �/span> may prescribe penaltiesfor any contravention thereof or failure to comply therewith of a fine not exceedingN$4 000 or to imprisonment for a period not exceeding one year or to both such fineand such imprisonment.
38. (1) This Act is called the Tobacco Products Control Act, 2010, andcomes into operation on a date to be determined by the Minister by notice in the Gazette.
(2) Different dates may be determined under subsection (1) in respect ofdifferent provisions of this Act.