The High Court ruled that a €30 voucher given to a shop assistant under a tobacco marketing scheme did not amount to “financial assistance” under section 36(2) of the Public Health (Tobacco) Act 2002, as amended. It answered yes to each of three questions referred by a District Court judge in a case stated appeal, then said it would hear counsel on the form of any order.
The prosecution arose from a “Pocket a Packet” scheme run by P.J. Carroll & Company Limited. The evidence described mystery shoppers testing whether retail staff would recommend Pall Mall cigarettes to customers asking for competing brands. A successful assistant could receive a €30 voucher, while the shop could enter a draw for larger prizes.
The Health Service Executive proceeded on two of five summonses in the Dublin District Court. One alleged that the company gave financial assistance to Campus Property Limited, trading as Spar at Dublin City University; the other concerned a €30 voucher given to employee Reni Joseph in July 2009. The District judge found the first summons unproven. On the second, she found that the scheme amounted to promotion, but dismissed the prosecution because she held that a prize or reward was not “financial assistance”.
The High Court upheld the judge’s answers on the referred legal questions. It agreed that “financial assistance” must assist a particular event or activity and does not include a once-off prize or reward such as the €30 voucher in this case. It also agreed that the scheme was a promotion in the ordinary meaning of the word.
The court said the statutory phrase was ambiguous in this context and that criminal offences must be set out in clear and certain language. It concluded that section 36(2) did not cover the kind of once-off reward given to Mr Joseph, while observing that the facts might have supported a charge under the separate sponsorship offence in section 36(1), as then defined. The court stressed that it had not been asked to determine whether that prosecution could have proceeded under section 36(1).
The judgment did not state the form of the final order. The judge said counsel would be heard on that after consideration of the judgment.