The Tobacco Products (Traceability and Security Features) Regulations 2019

Made: 18th March 2019

Laid before Parliament: 19th March 2019

Coming into force: 20th May 2019

The Commissioners for Her Majesty's Revenue and Customs have been designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to traceability of, and security features for, tobacco and tobacco products .

The Commissioners for Her Majesty's Revenue and Customs make these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972.

PART 1 — Preliminary

Citation, commencement and effect

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• (1) These Regulations may be cited as the Tobacco Products (Traceability and Security Features) Regulations 2019.

• (2) These Regulations come into force on 20th May 2019.

• (3) Subject to paragraph (4), regulation 6 has effect in relation to—

• (a) cigarettes or hand-rolling tobacco supplied in the United Kingdom on or after 20th May 2019, and

• (b) tobacco products (other than cigarettes or hand-rolling tobacco) supplied in any part ofthe United Kingdom on or after 20th May 2024.

• (4) Regulation 6 does not have effect in relation to—

• (a) cigarettes or hand-rolling tobacco manufactured, or imported into the United Kingdom, before 20th May 2019 unless the product in question is supplied in the United Kingdom on or after 20th May 2020, and

• (b) tobacco products (other than cigarettes or hand-rolling tobacco) which are manufactured, or imported into the United Kingdom, before 20th May 2024 unless the product in question is supplied in any part of the United Kingdom on or after 20th May 2026.

• (5) Regulations 7 to 10 have effect in relation to—

• (a) cigarettes or hand-rolling tobacco—

• (i) manufactured in the United Kingdom on or after 20th May 2019, or

• (ii) manufactured in a country which is not a member State that are imported into the United Kingdom on or after that date for supply in the United Kingdom or another member State, and

• (b) tobacco products (other than cigarettes or hand-rolling tobacco)—

• (i) manufactured in the United Kingdom on or after 20th May 2024, or

• (ii) imported into the United Kingdom on or after that date for supply in any part of the United Kingdom.

• (6) Regulation 13 has effect in relation to—

• (a) cigarettes or hand-rolling tobacco—

• (i) manufactured in the United Kingdom on or after 20th May 2019, or

• (ii) imported into the United Kingdom on or after that date,

for supply in the United Kingdom, and

• (b) tobacco products (other than cigarettes or hand-rolling tobacco)—

• (i) manufactured in the United Kingdom on or after 20th May 2024, or

• (ii) imported into the United Kingdom on or after that date,

for supply in any part of the United Kingdom.

Interpretation

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In these Regulations—

• “anti-tampering device” has the meaning given in Article 2(7) of the Commission Implementing Regulation;

• “authentication elements” are the authentication elements set out in the Annex to the relevant Security Features Decision;

• “authentication elements provider” means a person meeting the description in regulation 15(1);

• “Category A, B, C or D contravention” have the meanings given in regulation 20A;

• “cigarette” means a tobacco product that can be consumed by means of a combustion process and which is—a roll of tobacco (or of tobacco and another substance) capable of being smoked as it is, but which is not a cigar or a cigarillo, ora roll of tobacco (or of tobacco and another substance) which is designed to be, by simple non-industrial handling—wrapped in cigarette paper, orinserted into a cigarette-paper tube;

• “cigar” means a tobacco product that can be consumed by means of a combustion process and, given its properties and normal consumer expectations, is exclusively intended to be smoked as it is, and which is—a roll of tobacco (or of tobacco and another substance) which has an outer wrapper of natural tobacco, ora roll of tobacco (or of tobacco and another substance) which—has an outer wrapper—of the normal colour of a cigar,made of reconstituted tobacco, andcovering the product in full (including the filter but not, in the case of a cigar with a mouthpiece, the mouthpiece),is filled with a threshed blend of tobacco (or of tobacco and another substance),has a unit weight, not including any filter or mouthpiece, of not less than 2.3 grams and not more than 10 grams, andhas a circumference, over at least one third of its length, of not less than 34 millimetres;

• “cigarillo” means a cigar with a unit weight of not more than 3 grams;

• “the Commission” means the Commission of the European Union;

• ...

• “the Commission Implementing Regulation” means, except in regulation 13(4), the Commission Implementing Regulation (EU) 2018/574 of 15 December 2017 on technical standards for the establishment and operation of a traceability system for tobacco products as it applies in the United Kingdom;

• “consumer” means a person who is acting for purposes which are outside that person's trade, business, craft or profession;

• ...

• “customs suspensive procedure or arrangement” has the meaning given in regulation 3(1) of the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 as those Regulations apply in respect of tobacco products entering the United Kingdom;

• “the data repository” means the data storage facility established under Article 26(1) of the Commission Implementing Regulation;

• “deactivation notice” means a notice given under regulation 18(4);

• “the GB Security Features Decision” means the Commission Implementing Decision (EU) 2018/576 of 15 December 2017 on technical standards for security features applied to tobacco products;

• “GB tobacco product” means a tobacco product which is manufactured for, or imported into the United Kingdom for, supply in Great Britain;

• “the GB travel retail sector” means retail outlets in Great Britain at which tobacco products or related products may be purchased only by people travelling on journeys to destinations outside Great Britain;

• “economic operator” has the meaning given in Article 2(2) of the Commission Implementing Regulation;

• “economic operator identifier code” or “EOID” means a code issued in accordance with Article 15 of the Commission Implementing Regulation;

• ...

• “the EU Security Features Decision” means the Commission Implementing Decision (EU) 2018/576 of 15 December 2017 on technical standards for security features applied to tobacco products as it has effect by virtue of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement;

• “facility” has the meaning given in Article 2(6) of the Commission Implementing Regulation;

• “facility identifier code” or “FID” means a code issued in accordance with Article 17 of the Commission Implementing Regulation;

• “hand-rolling tobacco” means a tobacco product—in relation to which more than 25% by weight of the tobacco particles have a cut width of less than 1.5 millimetres,which is sold or intended to be sold for making into cigarettes by hand, including making into cigarettes by hand with the aid of a mechanical device, orwhich is of a kind used for making into cigarettes by hand, including making into cigarettes by hand with the aid of a mechanical device;

• “HMRC” means Her Majesty's Revenue and Customs;

• “import” means the entry of tobacco products into the United Kingdom unless those products are placed under a customs suspensive procedure or arrangement on their entry, as well as their release from a customs suspensive procedure or arrangement, and “imported” is to be construed accordingly;

• “manufacturer” means a person who—manufactures tobacco products, orputs a name, trademark, or other distinguishing mark, on tobacco products by which the person is held out to be the manufacturer or originator,and “manufacture” is to be construed accordingly;

• “NI tobacco product” means a tobacco product which is manufactured for, or imported into the United Kingdom for, supply in Northern Ireland;

• “the NI travel retail sector” means retail outlets in Northern Ireland at which tobacco products or related products may be purchased only by people travelling on journeys to destinations outside Northern Ireland;

• “officer” means a person appointed under section 2(1) of the Commissioners for Revenue and Customs Act 2005 ;

• “prescribed” means prescribed in a direction of the Commissioners for Her Majesty's Revenue and Customs made under regulation 24;

• ...

• “retail sale” means sale to a consumer;

• “retailer” means a person who sells, or offers or agrees to sell, a tobacco product to a consumer;

• “second, third or subsequent contravention” have the meanings given in regulation 20A;

• “security feature” means the security feature required to be carried by unit packets of tobacco products by regulation 13;

• “supplied in any part of the United Kingdom” has the meaning given in regulation 3;

• “the relevant Security Features Decision” means—in relation to GB tobacco product, the GB Security Features Decision, andin relation to NI tobacco product, the EU Security Features Decision;

• “tobacco product” means a product that can be consumed and consists, in whole or in part, of tobacco;

• “travel retail sector” means— the GB travel retail sector, orthe NI travel retail sector;

• “the UK ID Issuer” means the entity appointed for the United Kingdom in accordance with Article 3(1) of the Commission Implementing Regulation ;

• “unique identifier” has the meaning given in Article 2(1) of the Commission Implementing Regulation;

• “unit packet” in relation to a tobacco product, means the smallest individual packaging in which that product is, or is intended to be, presented for retail sale, but does not include any transparent wrapper.

Meaning of tobacco products supplied in any part of the United Kingdom

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• (1) For the purposes of these Regulations, tobacco products are supplied in any part of the United Kingdom if ... a person—

• (a) supplies the product—

• (i) for consumption in any part of the United Kingdom or through the travel retail sector, or

• (ii) with a view to it being supplied for consumption in any part of the United Kingdom or through the travel retail sector,

• (b) offers or agrees to supply it in those circumstances, ...

• (c) exposes or possesses it for supply in those circumstances , or

• (d) causes or allows the supply of tobacco products at a facility,

and “supply in any part of the United Kingdom” is to be construed accordingly.

• (1A) For the purposes of paragraph (1)(d) a person who causes or allows the supply of tobacco products at a facility includes—

• (a) the holder of the EOID, if there is an EOID linked to the facility; and

• (b) the person who is responsible for the facility where the supply occurred, and for this purpose the person responsible for the facility is the person who—

• (i) is entitled to control its use,

• (ii) is entrusted with its management, or

• (iii) is otherwise in charge of it.

• (2) In the case of a cross-border distance sale of a product, the product is to be treated for the purposes of these Regulations—

• (a) where the consumer is located in Great Britain, as supplied and presented for retail sale in Great Britain;

• (b) where the consumer is located in Northern Ireland, as supplied and presented for retail sale in Northern Ireland.

• (3) In this regulation, cross-border distance sale” means—

• (a) in relation to Great Britain, a distance sale to a consumer (“C”) where, at the time C orders a product from a retailer, C is located in Great Britain and the retailer is established outside Great Britain;

• (b) in relation to Northern Ireland, a distance sale to a consumer (“C”) where, at the time C orders a product from a retailer, C is located in Northern Ireland and the retailer is established outside Northern Ireland.

Meaning of tobacco products supplied in another member State

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Competent ID issuer for the purposes of Article 4(1) of the Commission Implementing Regulation

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PART 2 — Prohibition from supply of non-compliant tobacco products

Prohibition from supply of non-compliant tobacco products

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• (1) A person must not supply tobacco products in any part of the United Kingdom unless those products meet the requirements in paragraphs (2) to (4).

• (2) The unit packet of a tobacco product must be marked with a unique identifier that—

• (a) has been issued by , or has been paired with a unique identifier that has been issued by, the UK ID Issuer and meets the technical specifications set out in Chapters II and IV of the Commission Implementing Regulation, and

• (b) meets the requirements in—

• (i) regulation 7(2), or

• (ii) in cases where the unique identifier has been applied by a person outside the United Kingdom, regulation 7(2) as if it applied to that person .

• (3) All movements of, and all transactions relating to, the unit packet of a tobacco product must have been recorded and transmitted in accordance with Chapter VI of the Commission Implementing Regulation.

• (4) The unit packet of a tobacco product must carry a security feature.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 3 — Traceability system

Integrity requirements of a unique identifier

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• (1) Where a manufacturer or importer of tobacco products is required to mark each unit packet with a unique identifier under Article 6 of the Commission Implementing Regulation, the manufacturer or importer must ensure that, in addition to meeting the requirements in Section 2 of Chapter II and Chapter IV of that Regulation, the requirements in paragraph (2) are also met.

• (2) The unique identifier—

• (a) must be—

• (i) irremovably printed or affixed, and

• (ii) indelible,

• (b) must remain intact when the packet is opened, and

• (c) must not be partially or totally hidden or interrupted by any other item, including through tax stamps or price marks.

Provision of equipment for recording and transmitting information

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Manufacturers of tobacco products must provide all economic operators with the equipment necessary for those operators to comply with the recording and electronic transmission of information requirements in Articles 32 and 33 of the Commission Implementing Regulation.

Primary repository requirements

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Access to anti-tampering device records

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Where HMRC have made a request in writing under Article 7(5) of the Commission Implementing Regulation to a manufacturer or importer of tobacco products for full access to the record of the verification process created by an anti-tampering device, the manufacturer or importer must provide HMRC with such access within a period of 30 days beginning on the day on which the request is made.

External auditor: annual report on primary repository

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Access to stored data in duly justified cases

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• (1) The Commissioners for Her Majesty's Revenue and Customs may grant manufacturers and importers of tobacco products access to stored data in cases where they are satisfied that—

• (a) access is duly justified, and

• (b) commercially sensitive information remains adequately protected.

• (2) An application for access must be made to HMRC in a prescribed manner.

• (3) The Commissioners for Her Majesty's Revenue and Customs must, as soon as reasonably practicable after receiving the application, give notice to the applicant—

• (a) granting access, or

• (b) rejecting the application.

• (4) Where access is granted, the notice under paragraph (3)(a) must specify the rights of access granted to the applicant, including the duration and purpose of those rights.

• (5) In this regulation, “stored data” means information stored in the data repository.

PART 4 — Security feature system

Unit packets must carry a security feature

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• (1) Manufacturers and importers of tobacco products must ensure that each unit packet that they manufacture or import for supply in any part of the United Kingdom carries a tamper-proof security feature that meets the requirements in paragraphs (2) to (5).

• (2) The security feature must comply with any notice (that has not been replaced or revoked) given by HMRC to manufacturers and importers, in relation to the application of a security feature to GB tobacco product or NI tobacco product , as to—

• (a) the combination or combinations of authentication elements from which the security feature must be composed, ...

• (b) the number of authentication elements to be provided by an authentication elements provider, and

• (c) the replacement or modification of an authentication element where the Commissioners for Her Majesty’s Revenue and Customs have reason to believe that the integrity of that element has been compromised

• (3) The security feature must be—

• (a) irremovably applied to a unit packet of tobacco product by—

• (i) printing or affixing, or

• (ii) a combination of printing and affixing, and

• (b) indelible.

• (4) The security feature must not be partially or totally hidden or interrupted by any other item, including through tax stamps, price marks, or other marking which is required under or by virtue of any enactment or the Commission Implementing Regulation.