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The Non-Smokers Health Protection Amendment Act (E-Cigarettes)

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S.M. 2015, c. 36

Bill 30, 4th Session, 40th Legislature

The Non-Smokers Health Protection Amendment Act (E-Cigarettes)

(Assented to November 5, 2015)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. N92 amended

1           The Non-Smokers Health Protection Act is amended by this Act.

2           The title is replaced with "THE NON-SMOKERS HEALTH PROTECTION AND VAPOUR PRODUCTS ACT".

3           Subsection 1(1) is amended by adding the following definitions:

"e-cigarette" means either of the following:

(a) a product or device, whether or not it resembles a cigarette, containing a power source and heating element designed to vapourize an e-substance for inhalation or release into the air,

(b) a product or device prescribed by regulation similar in nature or use to a product or device described in clause (a); (« cigarette électronique »)

"e-substance" means a solid, liquid or gas

(a) that, on being heated, produces a vapour for use in an e-cigarette, regardless of whether the solid, liquid or gas contains nicotine, and

(b) that is not a controlled substance within the meaning of the Controlled Drugs and Substances Act (Canada); (« substance servant à vapoter »)

"use", in relation to an e-cigarette, means

(a) to vapourize an e-substance for inhalation or release into the air by means of an e-cigarette, or

(b) to have control of an e-cigarette in which an e-substance is being vapourized; (« vapoter »)

"vapour product" means any of the following:

(a) an e-cigarette,

(b) an e-substance,

(c) a cartridge for or a component of an e-cigarette; (« produit servant à vapoter »)

"vapour product shop" means, subject to any additional criteria specified in the regulations, premises where the predominant trade or business carried on is the sale or distribution of vapour products, and where the sale or distribution of other products is merely incidental. (« débit de produits servant à vapoter »)

4(1)        Subsection 2(1) is amended in the part before clause (a) by striking out "in sections 3 to 5.1" and substituting "in section 3, 3.1, 4 or 5.1".

4(2)        The following is added after subsection 2(1):

No e-cigarette use in enclosed places

2(1.1)      Except as permitted in section 3, 3.1 or 4.1, no person shall use an e-cigarette in

(a) an enclosed public place;

(b) an indoor workplace;

(c) a group living facility;

(d) a public vehicle; or

(e) a vehicle used in the course of employment, while carrying two or more employees.

4(3)        Subsection 2(2) is replaced with the following:

Proprietor to ensure no smoking or e-cigarette use

2(2)        The proprietor of a place, area or vehicle where smoking or using an e-cigarette is prohibited under this Act must ensure that no person smokes or uses an e-cigarette in that place, area or vehicle.

5           Section 3 is replaced with the following:

Exception for group living facilities

3(1)        The proprietor or board of a group living facility, other than a facility operated exclusively for children, may, subject to subsection (2), designate a separate room in the facility as

(a) a smoking room;

(b) an e-cigarette use room; or

(c) a combined smoking and e-cigarette use room.

Conditions for designation

3(2)        A room may be designated under subsection (1) only if each of the following conditions is met:

(a) the room is not frequented by in-patients or residents who neither smoke nor use e-cigarettes;

(b) the room is fully enclosed by floor-to-ceiling walls, a ceiling and doors that separate it physically from any adjacent area in which smoking or e-cigarette use is prohibited by this Act;

(c) in the case of a room designated under clause (1)(a) or (c), the room has a separate ventilation system.

In-patient or resident may smoke or use an e-cigarette

3(3)        An in-patient or resident of a group living facility may

(a) smoke in a room designated under clause (1)(a) or (c); or

(b) use an e-cigarette in a room designated under clause (1)(b) or (c).

Exception for hotel rooms

3.1(1)      The proprietor of a hotel, motel, inn or bed-and-breakfast facility may, subject to subsection (2), designate a guest room in the facility as

(a) a smoking room;

(b) an e-cigarette use room; or

(c) a combined smoking and e-cigarette use room.

Conditions for designation

3.1(2)      A guest room may be designated under subsection (1) only if each of the following conditions is met:

(a) the room is designed primarily as sleeping accommodation;

(b) the room is fully enclosed by floor-to-ceiling walls, a ceiling and doors that separate it physically from any adjacent area in which smoking or e-cigarette use is prohibited by this Act;

(c) in the case of a room designated under clause (1)(a) or (c), the room has a separate ventilation system.

Guests may smoke or use an e-cigarette

3.1(3)      A registered guest, and his or her invited guests, may

(a) smoke in a room designated under clause (1)(a) or (c); or

(b) use an e-cigarette in a room designated under clause (1)(b) or (c).

Transitional

3.2         Despite clauses 3(2)(c) and 3.1(2)(c), a separate ventilation system is not required if the room was constructed or last substantially renovated on or before October 1, 2004.

6           The following is added after section 4:

Exception for vapour product shops

4.1         The proprietor of a vapour product shop and his or her employees and customers may use e-cigarettes in a vapour product shop to test or sample a product for the purpose of sale of the product for use elsewhere, but only if the shop is fully enclosed by floor-to-ceiling walls, a ceiling and doors that separate it physically from any adjacent area in which the use of e-cigarettes is prohibited.

7           Section 5 is replaced with the following:

Drifting smoke or vapour

5           The proprietor of a place where smoking or e-cigarette use is permitted under this Act or the regulations must take reasonable steps to minimize the drifting of smoke or vapour, as the case may be, into areas of the premises where smoking or e-cigarette use is prohibited.

8           Subsection 6(1) is amended by adding "or e-cigarette use" after "smoking".

9           Section 6.3 is amended

(a) in the section heading, by adding "or vapour products" after "tobacco"; and

(b) in the part before clause (a), by adding "vapour products," after "offer to supply".

10          Section 6.4 is amended by adding "vapour products," after "dispensing".

11          The following is added after section 7:

Supplying vapour product to child prohibited

7.0.1(1)    No person shall supply or offer to supply a vapour product to a child.

Defence of accused

7.0.1(2)    In a prosecution or proceeding for a contravention of subsection (1), the accused has a defence if he or she can prove on a balance of probabilities that, before supplying or offering to supply the vapour product to the child, the accused attempted to verify that the child was at least 18 years of age by asking for and being shown documentation prescribed in the regulations for the purpose of verifying age, and reasonably believed that the documentation was authentic and that the person was at least 18 years of age.

Inference as conclusive evidence

7.0.1(3)    In a prosecution or proceeding for a contravention of subsection (1), where a container or package gives rise to a reasonable inference that the contents of the container or package are a vapour product, in the absence of evidence to the contrary, the contents shall be conclusively deemed to be a vapour product.

12          Section 7.1 is amended by replacing the section heading with "Regulations re display and advertising — tobacco products".

13          The following is added after section 7.3:

Regulations re display and advertising — vapour products

7.3.1(1)    Subsections (2) and (3) do not apply in relation to a place or premises for which the sale of vapour products is the major activity, if the place or premises is prescribed for the purpose of those subsections in the regulations.

Vapour products not to be displayed

7.3.1(2)    No person shall display or permit to be displayed a vapour product such that it is visible to children in any place or premises in which vapour products are sold.

Vapour products not to be advertised or promoted

7.3.1(3)    No person shall advertise or promote a vapour product

(a) in any place or premises in which vapour products are sold;

(b) in any place or premises to which children are permitted access;

(c) on an outdoor sign of any type, including

(i) a billboard or portable sign, or

(ii) a sign on a bench, vehicle, building or other structure; or

(d) inside a building or other structure or vehicle if the advertisement or promotion is visible from outside the building, structure or vehicle.

Product and price lists allowed

7.3.1(4)    Notwithstanding subsection (3), a place or premises described in clause (3)(a) may have signage that lists the vapour products offered for sale and their prices, if the signage complies with the requirements specified in the regulations.

14          Subsection 8(2) is amended in the section heading and in the subsection by adding "or (1.1)" after "subsection 2(1)".

15(1)       Subsection 9(1) is amended

(a) by adding the following after clause (a):

(a.0.1) prescribing a product or device for the purpose of the definition "e-cigarette";

(a.0.2) specifying additional criteria for the purpose of the definition "vapour product shop";

(b) in clause (e), by adding "or vapour products" after "tobacco products" wherever it occurs;

(c) in clause (g), by striking out "subsection 7(3)" and substituting "subsections 7(3) and 7.0.1(2)"; and

(d) by adding the following after clause (h):

(h.1) for the purpose of subsections 7.3.1(2) and (3), prescribing a place or premises, or a class of places or premises, in which vapour products may be displayed, advertised or promoted;

15(2)       The following is added after subsection 9(1):

Regulations may establish classes

9(1.1)      A regulation under subsection (1) may be general or particular in its application and may provide differently for different classes of persons, things, places, areas or activities, and to the whole or any part of the province.

CONSEQUENTIAL AMENDMENTS

Consequential amendments, C.C.S.M. c. C230

16(1)        The Correctional Services Act is amended by this section.

16(2)       Subsection 26(1) is amended

(a) by replacing the section heading with "Designating areas where smoking or e-cigarettes are prohibited"; and

(b) by adding "or an area where e-cigarette use is prohibited" after "non-smoking area".

16(3)       Subsection 26(2) is replaced with the following:

Notices for areas where smoking or e-cigarettes are prohibited

26(2)       Where a custodial facility, or a part of such a facility, is designated under subsection (1) either at all times or during specified periods, notices shall be posted in prominent places in the facility, or the part of it, as the case may be, indicating

(a) that the facility or part is an area where smoking or use of e-cigarettes is prohibited; and

(b) if the designation is effective only for specified periods, the periods during which smoking or use of e-cigarettes is not allowed in the facility or part.

Consequential amendments, C.C.S.M. c. H60

17          Subsections 186.1(1) and (2) The Highway Traffic Act are amended

(a) in the section heading, by adding "or e-cigarette use" after "Smoking"; and

(b) by striking out "or have lighted tobacco" and substituting ", have lighted tobacco or use an e-cigarette".

Consequential amendment, C.C.S.M. c. T2

18          Clause 10(2)(a) of The Tax Administration and Miscellaneous Taxes Act is amended by striking out "The Non-Smokers Health Protection Act" and substituting "The Non-Smokers Health Protection and Vapour Products Act".

Consequential amendments, C.C.S.M. c. T80

19          Subsection 4(2.1) of The Tobacco Tax Act is amended in the section heading and in the subsection by striking out "Non-Smokers Health Protection Act" and substituting "Non-Smokers Health Protection and Vapour Products Act".

Consequential amendment, C.C.S.M. c. W210

20          Clause 18(1)(c.1) of The Workplace Safety and Health Act is replaced with the following:

(c.1) respecting the prohibition of smoking and e-cigarette use at workplaces, including deeming a contravention of The Non-Smokers Health Protection and Vapour Products Act relating to workplaces to be a contravention of this Act for the purpose of issuing an improvement order under section 26;

Coming into force

21          This Act comes into force on a day to be fixed by proclamation.