Judgment reserved on interpretation of tobacco rewards

The High Court has reserved judgment on whether a district court judge was correct in her interpretation of the law when she dismissed a prosecution against tobacco manufacturer PJ Carroll for giving vouchers to shop staff as a reward for promoting its cigarette products.

The company denied charges brought by the HSE of giving or causing to give financial assistance to the Spar retailer in Dublin City University, and to one of its shop assistants, on an unknown date between Jul 1 and Sept 31, 2009, in consideration of the promotion of a tobacco product.

On Jul 1, 2009, all advertising of tobacco products was banned in retail shops. Sponsorship of tobacco products is also banned.

Called the Pocket a Packet scheme, shop staff and owners were motivated to promote Pall Mall cigarettes under a “mystery shopper” scheme operated by PJ Carroll Ltd, it was alleged.

It was also claimed that when customers asked if the shop had Benson & Hedges, John Player Blue or Mayfair King Size cig-arettes, staff would be rewarded with a €30 “One 4 All” voucher if they responded: “We also stock Pall Mall, which is the best value cigarette on the market.”

Shops that passed the mystery shopper test would also be put forward for a prize draw where €1,000, €2,000 and €5,000 worth of wholesale vouchers could be won.

A HSE officer last year gave evidence in Dublin District Court of visiting PJ Carroll’s offices in 2009 and 2010, when she was given documents in relation to the company’s marketing, including the Pocket a Packet scheme. It featured a list of retailers that participated in the scheme and won vouchers and/or wholesale draws.

On June 24 last, district court judge Bridget Reilly held that the scheme was a promotion but found the term “financial assistance” the company gave did not include a gift, prize or reward such as a voucher. She dismissed the prosecution.

The judge agreed to an appeal of her ruling through the High Court, which was yesterday asked to decide whether she was correct in her finding about financial assistance or if this must assist an event or activity. She also asked the court to rule on whether she was correct in holding that what the company did amounted to a promotion for the purposes of the Tobacco Acts.

John Rogers SC, for the HSE, which took the prosecution, told High Court president Mr Justice Nicholas Kearns that the district court judge had fallen into error in her interpretation by excluding a prize from the definition of financial assistance. She had already found it was a promotion, which is specifically outlawed by Section 36 (2) of the Public Health (Tobacco) Act 2002, as amended by the 2004 Act, he said.

Brian Murray SC, for PJ Carroll, said they had not accepted the prosecution’s argument as it was never clear what was meant by promotion, but that something “incredibly broad” had been introduced into the argument. There were two concepts: that of sponsorship and of financial assistance for the consideration of promotion, he said.

If it was effectively an offence to have a marketing department with people thinking up ways of promoting the product within the law, then this had significant implications for his client.

Mr Justice Kearns reserved his decision.