Federal Court makes orders against internet tobacco supplier
The Federal Court in Melbourne has made orders and declarations by consent against Mr Mina Guirguis, in relation to his contravention of the Trade Practices Act 1974 for failing to comply with the prescribed consumer product information standard for tobacco products.
The Australian Competition and Consumer Commission alleged Mr Guirguis arranged the supply of retail packages of tobacco (eg. cigarettes in packets and cartons) that failed to comply with the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004.
The tobacco regulations, which are administered by the ACCC, require retail packages of tobacco manufactured in, or imported into, Australia on or after 1 March 2006 to be labelled with prescribed warning, information and explanatory messages and graphic images.
Mr Guirguis arranged for the supply of offending tobacco products on various occasions in 2006 and 2007 via the website www.cheapcigarettes.com.au.
In addition to declaring that Mr Guirguis had contravened the tobacco regulations, the Court granted an injunction restraining Mr Guirguis from supplying or aiding, abetting or being knowingly concerned in the supply of retail packages of tobacco that are not labelled in accordance with the tobacco regulations.
The Federal Court also declared that Mr Guirguis had engaged in misleading and deceptive conduct and made a false and misleading representation in contravention of sections 52 and 53(g) of the Act by representing on the website www.cheapcigarettes.com.au that there were no refunds for tobacco products sold on the website. In fact, under certain circumstances customers would be entitled to a refund. An injunction was also granted restraining Mr Guirguis from making such a representation in the future.
ACCC Chairman, Mr Graeme Samuel, said the warning messages and graphic images on cigarette packets and cartons are an important means by which smokers are informed about the health consequences of their habit.
"Conduct of the kind in the present case undermines important initiatives of health and other relevant authorities to educate and warn consumers about the dangers of smoking and particularly those members of the public making online purchases of tobacco products.
"While the ACCC's current action was a civil proceeding, traders should also be aware that the Act provides for criminal prosecution of certain contraventions of the Act including non-compliance with prescribed consumer product information standards such as the tobacco regulations.
"Traders should also appreciate that under the Act consumers will have the right to a refund in certain circumstances. This is a right that cannot be denied or excluded by the trader," Mr Samuel said.
The Trade Practices Act 1974 prohibits the supply, in trade or commerce, of goods that are intended to be, or are of a kind likely to be used, by a consumer being goods in respect of which a consumer product information standard has been prescribed, unless the standard has been complied with in respect of those goods. The Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 are such a consumer product information standard.
Warning and explanatory messages provided for in the regulations include such statements as:
"SMOKING CAUSES MOUTH AND THROAT CANCER Health Authority Warning"
and
"Smoking is the major cause of cancers affecting the mouth and throat. These cancers can result in extensive surgery, problems in eating and swallowing, speech problems and permanent disfigurement. You CAN quit smoking. Call Quitline 131 848, talk to your doctor or pharmacist, or visit http://www.quitnow.info.au".
The information message states:
Smoking exposes you to more than 40 harmful chemicals.
These chemicals damage blood vessels, body cells and the immune system.
QUIT NOW to reduce your risk of chronic illness or premature death.
The ACCC took the legal action after the Department of Health and Ageing raised concerns that packaged cigarettes were being offered for sale through the website www.cheapcigarettes.com.au which did not comply with the tobacco regulations.
