Sale of tobacco products and smoking bans in Quebec - Retail Council of Canada
Quebec

Sale of tobacco products and smoking bans in Quebec

On November 26, 2015, the Quebec government adopted the Act to bolster tobacco control (Bill 44), which received assent the same day. This notice explains in detail the measures concerning smoking bans, the measures involving the sale of tobacco products, and the dates these measures came into or will come into force. Most of the measures in the Act entered into force on the date of assent. However, certain measures will enter into force at a later date.

New measures affecting tobacco retail outlets: The following measures entered into force on the date when the Act was assented to, that is November 26, 2015:

  • Electronic cigarettes and any other devices of that nature, including their components and accessories, are subject to the same controls as tobacco products, with the exception of the ban on flavours.
  • The display of electronic cigarettes and any other devices of that nature, including their components and accessories, is prohibited, except in specialized retail outlets for the sale of electronic cigarettes.
  • The sale of tobacco products, now including electronic cigarettes, is permitted solely to individuals buying in person at a retail outlet. Sales by internet, phone or other methods are prohibited.
  • It is prohibited to offer tobacco products free of charge.
  • Promotion or advertising of electronic cigarettes and any other devices of that nature, including their components and accessories, is prohibited, except as allowed in section 24 of the Tobacco Act. It is therefore prohibited to advertise online or to display posters in windows for promotional or advertising purposes.
  • The purchase of tobacco by or for minors is prohibited.
  • Anyone who wishes to purchase a tobacco product is required to provide proof of age at the business operator’s or an employee’s request. Proof of age must consist of government issued photo identification (examples: student card, driver’s licence, health insurance card).
  • The fines prescribed for various offences against the Tobacco Act have been increased (please see Table 1).

New measures specific to retail outlets selling only electronic cigarettes and other devices of that nature, and which were engaged solely in that activity under the law as of November 26, 2015:

  • It is permitted to display such products inside the retail outlet.
  • The display must be visible only from inside the retail outlet.
  • Supplying any tobacco product, including “e-liquids,” free of charge to a customer is prohibited. This measure puts an end to tobacco product trials in retail outlets.
  • The retail outlet operator must send a written notice to the Minister of Health and Social Services indicating the name of the retail outlet, its address and a declaration of compliance with these conditions, as of November 26, 2015.
  • For new retail outlets, this written notice must be sent within 30 days of opening.
  • The business operator must declare the retail sale of tobacco in the Registraire des entreprises du Québec (REQ).

New measures specific to retail outlets for tobacco products concerning smoking bans that will enter into force in 6 months on May 26, 2016:

  • It will be prohibited for manufacturers or distributors to sell, offer for sale or distribute tobacco products that have a flavour or aroma other than that of tobacco.
  • In order to allow operators of retail outlets to sell off their stock, the sale of tobacco products that have a flavour or aroma other than that of tobacco will be permitted for 9 months after the Act is assented to, or until August 26, 2016.

New measures concerning retail outlets for tobacco products that will enter into force 12 months after the Act is assented to, on November 26, 2016:

  • It will be prohibited for any adult to purchase tobacco for a minor. The business operator or employee, however, will not be held responsible if they can reasonably show they had no knowledge.
  • Manufacturers or distributors of tobacco products will be prohibited from offering rebates, gratuities or other benefits related to the sale of tobacco products. For example, manufacturers will not be allowed to give hockey tickets, performance bonuses or other benefits to business operators.

New measures entering into force on November 26, 2016 concerning smoking bans for all commercial stores:

Currently, every operator must take reasonable steps in order not to be held responsible if anyone is found smoking inside their business premises.

  • As of November 26, 2016, smoking will be prohibited outdoors within 9 metres of any door, air vent or window leading to a place where smoking is prohibited, as outlined in section 2 of the Tobacco Act.
  • Every operator must therefore take the following reasonable steps in order not to be held responsible if anyone is found smoking within a 9-metre radius of any door, open window or air vent or within the boundaries of the premises (whichever is smaller of the two):
    • Ensure a minimum of surveillance
    • Have a no-smoking policy
    • Provide administrative and disciplinary measures
    • Educate employees
    • Provide employees with directions on how to advise a customer or other person found smoking outside within 9 metres of any door to stop smoking or leave the premises
    • Prohibit the installation of ashtrays within a 9-metre radius of any door on the premises
  • Regarding existing ashtrays:
    • If you have an ashtray installed on your lot within less than 9 meters of a door, there is no obligation to remove it, but note that it may be used as evidence that you tolerate people smoking in a radius of less than 9 meters of your door. It is left to your discretion.
    • If you have an ashtray near a door that opens on public property (e.g. the city’s sidewalk), there is no obligation to remove it.
  • Mandatory measure: Post a notice that is clearly visible stipulating that smoking is prohibited outdoors within a 9-metre radius of the premises.
  • Retail operators, except operators of retail outlets for tobacco products, will be allowed to install smoking shelters, but such shelters must be more than 9 metres from any door. An employee or customer wishing to smoke must do so at a distance of more than 9 metres from the door or be off the operator’s property, on the sidewalk, for example.
  • The fines prescribed for various offences against the Tobacco Act and its provisions will be increased (please see Table 1).
  • Note: The 9-metre rule does not apply to stores whose doors and windows open directly onto a public space, such as a public sidewalk. The operator is not considered responsible for a person who, for example, is smoking on the sidewalk on Sainte-Catherine Street in Montreal if the door of the store opens onto the sidewalk.

IMPORTANT: The operator in this case is whoever manages the premises. This is not necessarily the business operator. For stores located in a shopping centre, if their premises are owned by the shopping centre, then the shopping centre is responsible for taking reasonable steps to prevent smoking within a 9-metre radius of the doors, windows or air vents. We suggest that you check your lease with your legal counsel.

For a look at all measures affecting specialized retail outlets for tobacco, specialized retail outlets for electronic cigarettes, cigar rooms and hookah bars, please refer to the Act to bolster tobacco control.

TABLE 1.
Fines prescribed for various offences against the Tobacco Act

Prior to November 26, 2015 After After November 26, 2015
Employee who sells to a minor $100 First offence: $500 to $1,500. Fees and a minimum contribution of $140 are added.

Subsequent Offences: $1,000 to $3,000 plus fees and contribution (25% or more)
Business operator who sells to a minor $500 and suspension of vendor license for 30 days First offence: $2,500 to $62,500 plus fees and contribution (25% or more). The vendor license is not suspended for first offence.

Subsequent offences: $5,000 to $125,000 plus fees and contribution (25% or more) plus suspension of vendor license: 3 months for second offence and 1 year for subsequent offences within the next 5 years.
Minor with a fake identity card $0 $100 plus $39 in fees and contribution.
Directors or officers of the parent company Difficult to prove The corporate cover is lifted. The company must establish that they exercised due diligence and took all necessary precautions to prevent the offence.

Question: Will the counter for offences be reset to zero with the new Act?
Answer: The Act doesn’t say anything about resetting the counter to zero. At the Ministry of Health and Social Services, they feel that offences already on record since 5 years or less would remain. The decision will come from future litigation or from a court decision, whichever comes first.
For more details about the new regulations, you can visit the Ministry of Health and Social Services (MSSS) online. You can also contact the MSSS by phone, email or regular mail:

Information,and complaints 1-877-416-8222 (Toll free)
Comments and suggestions loi-tabac@msss.gouv.qc.ca
Mailing address Ministère de la Santé et des services sociaux
Direction générale de la coordination réseau et ministérielle
Direction de l’inspection et des enquêtes
3000 Saint-Jean-Baptiste Ave., 1st floor
Québec (Québec) G2E 6J5