This guidance is for England
Certain products cannot be sold to persons below a legal minimum age; for tobacco and nicotine inhaling products this legal minimum age is 18.
A packet of cigarettes must contain a minimum of 20 cigarettes and must only be sold in its original packaging. A notice must be displayed stating ‘It is illegal to sell tobacco products to anyone under the age of 18’.
Tobacco products must not be on display in-store and there are also restrictions on how prices and price lists are displayed.
Young people should always be asked for proof of their age.
What is meant by tobacco, tobacco products & nicotine inhaling products?
‘Tobacco’ is defined as including cigarettes, any product containing tobacco for oral or nasal use (for example, snuff) and smoking mixtures used as a substitute for tobacco (for example, herbal cigarettes). ‘Cigarettes’ include cut tobacco rolled up in paper, tobacco leaf and other material in a form that is capable of being immediately used for smoking.
A ‘tobacco product’ is defined as “a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed”.
A ‘nicotine inhaling product’ means a nicotine inhaling device (used to inhale nicotine through a mouth piece), nicotine cartridge (contains nicotine and forms part of a nicotine inhaling device) or nicotine refill substance (generally known as e-liquid). Nicotine inhaling devices are commonly referred to as ‘e-cigarettes’ and the law covers both disposable and rechargeable types.
Age restriction on the sale of tobacco products
The law states that it is an offence for any person to sell any tobacco products (including cigarette papers) to a person under 18, whether or not it was for their own use. This is a strict liability offence, which means the owner of the business can be held responsible as well as the member of staff who made the sale. If you are charged with this offence, you have the defence that you took all reasonable precautions and exercised all due diligence to avoid committing the offence. This is commonly known as the ‘due diligence’ defence. The ‘Keeping within the law’ section of this guide includes steps that can be taken to provide a ‘due diligence’ defence.
You must display a notice that states:
|IT IS ILLEGAL TO SELL
TO ANYONE UNDER
THE AGE OF 18
The notice must be displayed in a prominent position and be easily visible at the point of sale. The notice must be no less than 297 mm x 420 mm (A3) and the characters must be no less than 36 mm in height. Your local trading standards service or your tobacco supplier may be able to provide a notice for you to use. It is an offence if you do not have the required notice on display, although the ‘due diligence’ defence is available to you.
Age restriction on the sale of nicotine inhaling products
A person who sells a nicotine inhaling product to someone under 18 commits an offence. This is a strict liability offence; the owner of the business can be held responsible as well as the member of staff who made the sale.
There is an exception for nicotine inhaling products that are licensed as medicines or medical devices. This exemption only applies to the extent to which the product is authorised.
If you sell e-cigarettes and associated devices you might want to display a poster advising customers that you will not sell to under-18s:
|If I sell e-cigarettes or
nicotine refills to
people under 18 …TRADING STANDARDS
WILL PROSECUTE ME
Note: unlike the tobacco poster, this is NOT a legal requirement and is simply suggested wording.
Age of the person making the sale
If you employ children in your business, it is not illegal for them to sell tobacco products, provided of course that the customer is not under 18. However, leaving unsupervised children selling tobacco is not recommended as they may find it difficult to refuse customers in their own age group.
Persistent sales to under-18s
If you are convicted of selling tobacco or nicotine inhaling products to persons under 18, and at least two other offences occurred in the preceding two years relating to the same premises, trading standards can make an application to a Magistrates’ Court for a restricted premises order and/or a restricted sales order.
A restricted premises order prohibits the sale from the premises of any tobacco, cigarette papers or nicotine inhaling products to any person, by you or any of your staff for a period of up to one year. You are entitled to make representations to the court as to why they should not grant the order.
A restricted sales order prohibits a specified person who has been convicted of a tobacco or nicotine offence from selling any tobacco, cigarette papers or nicotine inhaling products to any person and from having any management function related to the sale of tobacco, cigarette papers or nicotine inhaling products for a period of up to one year.
Offences are committed if a person sells tobacco, cigarette papers or nicotine inhaling products when a restricted premises order is in place or if a person fails to comply with a restricted sales order.
Proxy purchase of tobacco & nicotine inhaling products
An adult who buys or attempts to buy tobacco, cigarette papers or nicotine inhaling products on behalf of someone under 18 commits an offence. This is called ‘proxy purchasing’.
It is the buyer and not the trader who commits an offence under these circumstances. However, be aware of young people loitering outside your premises; they may ask adult customers to buy tobacco, cigarette papers or nicotine inhaling products for them. You may wish to refuse such sales.
Is it legal to sell single cigarettes?
No. A packet of cigarettes must contain a minimum of 20 cigarettes. It is an offence to sell cigarettes to any person other than in their original package. This means you must not split a pack and sell in lesser quantities.
Can tobacco be sold from vending machines?
No. Under the Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010, the sale of tobacco from an automatic vending machine is prohibited. If a sale takes place, the person who controls, or is concerned with the management of the premises where the automatic vending machine is located, commits the offence.
Any machines still on the premises can only be used for storage where the public do not have access to them (such as behind the bar) and must not display any advertising material.
Display & price marking of tobacco products
Under the Tobacco Advertising and Promotion (Display) (England) Regulations 2010, you are required to cover your display of tobacco products. It is an offence to display tobacco products unless a specific request to purchase tobacco has been made to you by a person aged 18 or over. It is NOT an offence to display tobacco-related accessories such as cigarette papers.
If you are charged with an offence where a requested display was to a person under 18, you have the defence that you believed the person was 18 or over and you had taken all reasonable steps to establish their age or from their appearance no-one could reasonably have suspected that the person was under 18. Taking ‘all reasonable steps’ means asking the person for evidence of their age and the evidence would convince a reasonable person. If you are charged with an offence of causing the display of a tobacco product, you have the defence available that you exercised all due diligence to avoid committing the offence.
There are also strict requirements relating to the manner in which tobacco products are price-marked, as set out in the Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010; there are only three forms of lists and labels that are allowed (see paragraphs 49-62 of the detailed guidance linked to below).
There are specific rules for bulk and specialist tobacconists (see paragraphs 38-39 and 60-62 of the detailed guidance).
Cigarette lighter refills
Under the Cigarette Lighter Refill (Safety) Regulations 1999 it is an offence to supply any cigarette lighter refill canisters containing butane to anyone under 18. This is because of the potential for abuse by ‘sniffing’ the gas, which can be extremely dangerous.
Matches & lighters
It is not illegal to sell matches or lighters to children. However, it is recommended that you do not sell these items to children, who are unlikely to have a legitimate use for them.
If you are charged with any of the offences detailed above, you have the defence that you took all reasonable precautions and exercised all due diligence to avoid committing the offence. For age-restricted products such as tobacco this generally means that you believed the person was aged 18 or over and you had taken all reasonable steps to establish their age or that from their appearance no-one could reasonably have suspected that the person was under 18. Taking ‘all reasonable steps’ means asking the person for evidence of their age and that the evidence would convince a reasonable person.
Keeping within the law
In order to keep within the law and therefore satisfy the legal defences, you should introduce an age verification policy and have effective systems to prevent sales and display to under-18s. These systems should be regularly monitored and updated as necessary to identify and put right any problems or weaknesses, and to keep pace with any advances in technology.
Key best practice features of an effective system include:
Age verification checks
Always ask young people to produce proof of their age. The Chartered Trading Standards Institute, the Home Office and the National Police Chiefs’ Council support the UK’s national Proof of Age Standards Scheme (PASS), which includes a number of card issuers. You can be confident that a card issued under the scheme and bearing the PASS hologram is an acceptable proof of age.
A passport or UK photocard driving licence is also acceptable but make sure that the card matches the person using it and the date of birth shows they are 18 or over. Military identification cards can be used as proof of age but, as with other forms of identification, make sure that the photo matches the person presenting the card and check the date of birth. Be aware that military identification cards can be held by 16 and 17-year-old service people.
Some young people may present false identification cards so it is advisable to also check the look and feel of a card. For example, the PASS hologram should be an integral part of a PASS card and not an add-on.
If the person cannot prove they are 18 or over, or if you are in any doubt, then the sale should be refused.
Please see the Home Office False ID Guidance for more information.
Operate a Challenge 21 or Challenge 25 policy
This means that if the person appears to be under 21 or 25, they will be asked to verify that they are 18 or over by showing valid proof of age.
Make sure your staff are properly trained. They should know which products are age restricted, what the age restriction is and the action they must take if they believe a person under 18 is attempting to buy. It is important that you can prove your staff have understood what is required of them under the legislation. This can be done by keeping a record of the training and asking the member of staff to sign to say that they have understood it. These records should then be checked and signed on a regular basis by management or the owner.
Maintain a refusals log
All refusals of tobacco and tobacco products should be recorded (date, time, incident, description of potential buyer). Maintaining a refusals log will help to demonstrate that you actively refuse sales and have an effective system in place. Logs should be checked by the manager / owner to ensure that all members of staff are using them.
Some tills have a refusals system built in. If using a till-based system, you should ensure that refusals can be retrieved at a later date. You should also be aware that some refusals are made before a product is scanned.
If you possess an EPoS system then it may be possible to use it to remind staff of age restrictions via a prompt. Alternatively, stickers can be used over certain product barcodes.
You should note that till prompts will not help you prevent offences under the Tobacco Advertising and Promotion (Display) (England) Regulations 2010 as the scan and prompt takes place after the display has been made.
You must display the legally required tobacco notice (see ‘Age restriction on the sale of tobacco products’ above). This should deter potential purchasers and act as a reminder to staff.
Closed circuit television (CCTV)
A CCTV system may act as a deterrent and reduce the number of incidents of underage sales.
Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment.
Children and Young Persons Act 1933
Children and Young Persons (Protection from Tobacco) Act 1991
Cigarette Lighter Refill (Safety) Regulations 1999
Tobacco Advertising and Promotion Act 2002
Protection from Tobacco (Sales from Vending Machines) (England) Regulations 2010
Tobacco Advertising and Promotion (Display) (England) Regulations 2010
Tobacco Advertising and Promotion (Display of Prices) (England) Regulations 2010
Children and Families Act 2014
Nicotine Inhaling Products (Age of Sale and Proxy Purchasing) Regulations 2015
Standardised Packaging of Tobacco Products Regulations 2015
The information is intended for guidance only; only the courts can give you an authoritative interpretation of the law.