Appendix One Ref H202000871.pdf

Appendix 1
Investigation Plan
Project Name
Solaria Enforcement
Identify and consider enforcement action for non-
Objective
compliant solaria operators
Project Leader
Sally Gilbert
s 9(2)(a)
Team Members
Background
The Ministry of Health (the Ministry) is concerned about the promotion and use of sunbeds
in New Zealand. Exposure to sunbeds poses a significant risk of skin cancer, as well as risk of
burns to skin and eyes, ageing and photosensitivity reactions in the skin. A comprehensive
meta-analysis  carried  out  by  the  World  Health  Organisation’s  International  Agency  for
Research  on Cancer  found that  using a  tanning device before age 30 increases the  risk of
melanoma by 75%1.
In 2012 the Ministry requested Public Health Units (PHUs) to assess sunbed operators against
the criteria in AS/NZS 2635:2008 Solaria for Cosmetic purposes (The Standard). The Standard
is voluntary and therefore it is not mandatory for solaria operators to comply with it.2 Eleven
areas were assessed which predominantly covered administrative and procedural aspects of
the operation. Two of the procedural aspects require operators to provide clients with a copy
of the completed consent form and undertake a skin assessment using the Fitzpatrick Scale.
As part of the assessment, operators were reminded that those clients assessed as Skin Type
1 have an increased risk of melanoma and should therefore never use a sunbed3. To date,
under the Official Information Act 1982
PHUs have made twelve rounds of visits to commercial solaria in their regions.
The PHUs have also been monitoring false and / or misleading health claims made by sunbed
operators. In 2011 the Commerce Commission put 280 sunbed operators and distributors on
notice  about  the  consequences  of  making  false  or  misleading  claims  regarding  the  health
benefits and risks of sunbed use. The operators were informed  that making these types of
claims was in breach of the Fair Trading Act 1986. The operators were further informed that
Released
1 IARC Working Group. The association of use of sunbeds with cutaneous malignant melanoma and other skin
cancers: a systematic review. Int J Cancer. 2006; 120: 1116-1122
2 Refer Standards New Zealand, Wellington
3 Ministry of Health (2018). Sunbeds.  Retrieved from https://www.health.govt.nz/your-health/healthy-
living/environmental-health/sunbeds
1

Appendix 1
the Commerce Commission had obtained expert advice from a dermatologist which advised
that UV light from a sunbed did not replicate the sun’s light, and light from modern sunbeds
was not healthier than natural sunlight. In relation to Vitamin D exposure, the dermatologist’s
advice was that the exact nature of any benefits associated with Vitamin D was unclear and
the majority of the population would get enough Vitamin D from incidental exposure from
the  sun.4  The  letter  concluded,  “There  is  no  evidence  that  tanning  on  a  sunbed  provides
natural protection against sunburn.  At best it may give a protection of SPF 2 - 3. Furthermore,
the  Commerce  Commission  has  been  advised  that  tanning  on  a  sunbed  does  not  inhibit
1982
incidences  of  melanoma.”  The  Commerce  Commission  advised  if  false  or  misleading
representations were made, they would consider enforcement options.
Act

In 2012 the Ministry and the Cancer Society published a Consensus Statement on Vitamin D
and Sun Exposure in New Zealand. The statement concluded the use of sunbeds and solaria
is  not  recommended  because  they  are  associated  with  increased  risk  of  early-onset
melanoma and the risk increases with greater use and an earlier age at first use.5

Some local councils (Masterton, South Wairarapa and Auckland) have bylaws which apply to
solaria.    For  example,  Auckland  City  Council’s  Health  and  Hygiene  Bylaw  2013  requires  all
Information
operators to have a licence and comply with minimum standards which are outlined in a Code
of Practice which is based on the Standard.

From 4 January 2017, it became illegal for sunbed operators to provide a tanning service to
a person under the age of 18 years. The Health (Protection) Amendment Act 2016 amended
Official
the Health Act 1956 (the Act) by introducing an Infringement Notice scheme which enables
enforcement officers to issue Infringement Notices on the spot to any person who has either
the
breached the ban on the provision of sunbed services to persons under 18 years, or breached
regulations in relation to sunbed services. As yet, no regulations have been made under the
Act.

under
Non-Compliance

Since 2012 compliance checks have consistently found variable levels of compliance with the
Standard.  The  Ministry’s  report,  ‘Visits  to  commercial  solaria  by  PHUs  1  February  –  31  Jul
2018; summary of findings’, found that 94% of operators would not permit a person under
the age of 18 years to their service.6 It should be noted these compliance visits were proactive
in nature and relied on the information provided by the operators.
Released

4 https://comcom.govt.nz/news-and-media/media-releases/archive/commerce-commission-cautions-sunbed-
industry-over-claims
5 https://www.health.govt.nz/system/files/documents/publications/vitamind-sun-exposure.pdf
6  https://15984fd0-a-2903f64b-s-sites.googlegroups.com/a/emfservices.co.nz/emf-
services/DHB_solarium_visits_H1_2017.pdf?attachauth=ANoY7cqHFPC28ri_EUZxE0bFngidGKiW4PWPg2a
UA36ONDeqlI2qjU1NMcwORSH_p8tgjpyTZsl0CDencl5NZk-w_Q3sIMdDN5_PRCoRk-
6FUjQFoGr46B4WYUIaPuS-

2

Appendix 1

Since 2015 Consumer New Zealand  has carried out surveys on behalf of the Ministry. The
surveys  have  shown  poor  compliance  with  the  voluntary  Code  of  Practice  agreed  by  the
solarium industry. The survey also highlighted poor practices with some operators permitting
under  18  year  olds  and  people  with  fair  skin  to  use  a  sunbed.  The  October  2017  survey
revealed 45% of operators failed to implement basic checks with two operators (20 checked)
permitted a 15-year-old to use the service.7

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Legislation

Health Act 1956
Act
Part 5 of the Health Act 1956 deals with Artificial UV tanning services and includes the ban
on providing artificial UV tanning services to persons under 18 years (section 114) and the
infringement offence regime (sections 115 – 116B).
Section 113 is the Interpretation section for Part 5 and reads as follows:

113 Interpretation
In this Part, unless the context otherwise requires,—
Information
approved evidence of age document has the same meaning as in section 5(1) of the Sale and
Supply of Alcohol Act 2012
artificial UV tanning services means the provision, for payment or other consideration, of
ultraviolet (UV) radiation via sunbeds, sunlamps, or any other device that emits UV radiation.
Section 113: replaced, on 4 January 2017, by section 22 of the Health (Protection) Amendment
Act 2016 (2016 No 35).
Official

Section 5(1) of the Sale and Supply of Alcohol Act 2012 provides that an approved evidence
of age document:
the

(a)
means a document of a kind approved by regulations made under this Act for the
purposes of this definition; and

(b)   in relation to a person, means an evidence of age document relating to the person

under
Clause 4 of the Sale and Supply of Alcohol Regulations 2013 sets out those documents that
are approved evidence of age documents. These are:
•
any current passport
•
a current New Zealand driver licence
•
a Hospitality NZ 18+ card.
Section  114  of  the  Act  outlines  the  ban  on  providing  artificial  UV  tanning  services  to
Released
persons under 18 years:

W3eDurhxaFAfMLjhRQbxO6Ayg05IisAa5CfRx2sapL8EDfKmZm4asK5KpkI5PT8G9q3zkSICkh1tBAGQ6Pv
2Nq1bwM1uC0nnHEvjtFqLboRPx5prdmy8qVk%3D&attredirects=0

7 Refer Consumer NZ.  https://www.consumer.org.nz/articles/sunbeds

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Appendix 1
114    Ban on providing artificial UV tanning services to persons under 18 years
(1)   This section applies to owners and operators of premises providing artificial UV tanning
services.
(2)   The owner or operator must not provide artificial UV tanning services to a person under
the age of 18 years.
(3)   A  person  who  contravenes  subsection  (2)  commits  an  offence  and  is  liable  on
conviction,—

(a)   in the case of an individual, to a fine not exceeding $2,000:

(b)   in the case of a body corporate, to a fine not exceeding $10,000.
(4)   Subsection (2) does not apply to a person who provides artificial UV tanning services to 1982
a person under the age of 18 years at a hospital if a medical practitioner prescribed the
services for the purpose of medical treatment.
(5)   It is a defence to a charge under subsection (2) if the defendant proves that,—  Act
(a)
before or  at  the time the artificial UV tanning services were provided, there was
produced to  the defendant  a document purporting to  be an approved evidence of
age document; and

(b)
the defendant believed on reasonable grounds that the document—

(i)
was in fact an approved evidence of age document; and
(ii)   related  to  the  person  to  whom  the  artificial  UV  tanning  services  were
provided; and

(iii)  indicated  that  the  person  to  whom  artificial  UV  tanning  services  were
provided was aged 18 years or over.
Information

Sections 115 – 116B set out the infringement offence regime:

115   Infringement offences
In this section and sections 116 to 116B,—
infringement fee, in relation to an infringement offence, means an amount prescribed for the
purposes of this section in regulations made under section 117(1) (rb)
Official
infringement offence means an offence against section 114 or any regulations made
under section 119(d) in relation to artificial UV tanning services.

the
116   Commission of infringement offences
A person who is alleged to have committed an infringement offence may either—

(a)
be proceeded against for the alleged offence by filing a charging document
under section 14 of the Criminal Procedure Act 2011; or

(b)
be served with an infringement notice as provided for in section 116A.
under

116A Infringement notices
(1)   If a person authorised to issue infringement notices under this section observes a person
committing  an  infringement  offence,  or  he  or  she  has  reasonable  cause  to  believe  that
such an offence is being or has been committed by that person, an infringement notice in
respect of that offence may be served on that person.
(2)   Any person authorised to issue infringement notices under this section (not necessarily
the person who issued the notice) may deliver the infringement notice (or a copy of it) to
Released
the  person  alleged  to  have  committed  an  infringement  offence  personally  or  by  post
addressed to that person’s last known place of residence or business.
(3)   An infringement  notice (or a copy of it) sent  to  a person under subsection (2) is  to  be
treated as having been served on that person when it was posted.
(4)   Every infringement notice must be in the prescribed form and must contain the following
particulars:

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Appendix 1
(a)   such details of the alleged infringement offence as are sufficient fairly to inform a
person of the time, place, and nature of the alleged offence; and

(b)   the amount of the infringement fee; and

(c)   the address of the place at which the infringement fee may be paid; and

(d)
the time within which the infringement fee must be paid; and

(e)   a  summary  of  the  provisions  of section  21(10) of  the  Summary  Proceedings  Act
1957; and

(f)     a statement that the person served with the notice has a right to request a hearing;
and

(g)
a statement of what will happen if the person served with the notice neither pays 1982
the infringement fee nor requests a hearing; and

(h)   any other particulars that may be prescribed.
(5)   If an infringement notice has been issued under this section, the procedure under section
Act
21 of the Summary Proceedings Act 1957 may be used in respect of the offence to which
the infringement notice relates and, in that case, the provisions of that section apply with
the necessary modifications.
(6)   For  the  purposes  of  this  section,  the  following  persons  are  authorised  to  issue
infringement notices under this section:

(a)   any environmental health officer:
(b)   any person, whether or not an employee of the Ministry or a local authority, who is
authorised in writing by the Director-General to issue infringement notices under
this section.
Information

116B Payment of infringement fees
(1)    Infringement  fees  for infringement  notices issued  on behalf  of the  Ministry are payable to the
Ministry.
(2)
Infringement fees for infringement notices issued on behalf of a local authority are payable to the
local authority.

Official
Section  117 of the  Act provides that regulations may be made which prescribe, for the
purposes of section 115, the infringement fee or fees payable in respect of an infringement
offence, which in the case of an individual may not exceed $1,000 (section 117(1)(rb)(i))
the
or in the case of a body corporate, may not exceed $5,000 (section 117(1)(rb)(ii)).

Note: The Ministry is proposing to introduce new regulations to protect the public from
harm from commercial sunbeds.

under
The only offence  in relation to artificial UV tanning services  is providing an artificial UV
tanning service to a person under the age of 18 years. The offence is strict liability and
both the owner and operator (employee) are liable for the offence.

Fair Trading Act 1986 – Advertising and promotion

  9
Misleading and deceptive conduct generally
Released
No person shall, in trade, engage in conduct that is misleading or deceptive or is likely
to mislead or deceive.

11   Misleading conduct in relation to services
No person shall, in trade, engage in conduct that is liable to mislead the public as to the
nature, characteristics, suitability for a purpose, or quantity of services.

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Appendix 1
40    Contraventions of provisions of Parts 1 to 4A an offence
Every person who contravenes a provision of Part 1 (except sections 9, 14(2), 23, or
24),Part 3, or Part 4 commits an offence and is liable on conviction,—
(a)   in the case of an individual, to a fine not exceeding $200,000; and
(b)   in the case of a body corporate, to a fine not exceeding $600,000.

Bylaws
The Auckland Council introduced a bylaw in 2013 which requires sunbed operators to be 1982
licensed  and  comply  with  minimum  standards.  These  include  providing  a  copy  of  the
consent  form  to  clients  and  conducting  a  skin  assessment.  The  South  Wairarapa  and
Masterton  Council  also  implemented  a  bylaw  in  2013  which  requires  a  premises  to  be
Act
licenced, however does not refer to the Standard. (Note: Enquiries will be conducted to
establish  if  there  are  bylaws  in  the  territorial  authority  where  operators  have  been
selected for a CPO).

KEY STAKEHOLDERS:

Sally Gilbert
Manager
Information
Environmental and Boarder Health
Public Health
Protection Regulation and Assurance
Ministry of Health
DDI 04 8164345
Mobile s 9(2)(a)

Official

Public Health Units managers and Health Protection Officers

the
s 9(2)(a)

under
s 9(2)(a)

Released

6

Appendix 1
Project Aim

To increase levels of compliance with section 14 of the Health Act 1956, section 11 of the
Fair Trading Act 1986, the voluntary Standards and any applicable by-laws.

Project objectives
Strategies
Compliance and / or enforcement action is
Undertake a Controlled Purchase
1982
undertaken against operators who are
Operation to establish those
identified as operating in breach of section  operators who will provide an
114 of the Act (Ban on providing artificial
artificial tanning service to a person
Act
UV tanning services to persons under 18
under 18 years
years)

Complete an investigation file for
consideration by Health Legal. This
will include:
Preparing a file for the owner and / or
operator
Information
With reference to the Solicitor’s
Guidelines, recommending either:
No further action; or
Warning; or
Infringement Notice; or
Official
Prosecution
Operators are using the consent form and
Use the volunteer’s statement to
skin assessment form prescribed by the
identify operators who did not
the
Standard
require the volunteer to complete a
consent form and / or a skin
assessment form

under
Provide operators who are not using
the forms prescribed by the Standard
with electronic and hard copy
versions of the forms

Operators are not displaying material
Examine the operators’ website and
which refers to the health benefits of
premises to establish whether there
Released
sunbed use in breach of section 11 of the
are displaying:
Fair Trading Act 1986 (Misleading conduct
•  Beneficial health claims
in relation to services)
associated with sunbed use;
and / or

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Appendix 1
•  Misleading information related
to the use of sunbeds and the
link to Vitamin D

District councils are informed of operators
Inform the relevant council where
who are operating in breach of the council
breaches of counsel bylaws are
bylaws
identified


1982
The Commerce Commission is informed of
Inform the Commerce Commission
operators who are operating in breach of
where breaches of the Fair Trading
Act
the Fair Trading Act 1986
Act 1986 are identified

Obtain copies of any advertising
brochures or pamphlets
Information
Official
the
under
Released

8

Appendix 1

Project Methodology
A total of 18 premises will be visited to assess operator compliance. These premises have
been  identified  by  the  Ministry  of  Health  and  Consumer  New  Zealand  as  non-compliant
premises (Appendices 1 & 2). A further 5 premises have been identified as ones where visits
are recommended. Identified non-compliances include:

•
Providing an artificial UV tanning service to a person under 18 (breach of section 14 of
1982
the Act);
•
Providing  an  artificial  UV  tanning  service  to  a  person  with  fair  skin  (breach  of  the
Standards)
Act

Controlled Purchase Operations (CPOs) will be carried out to establish whether operators
are complying with section 114 of the Act i.e. they do not provide a service to a person
under the age of 18 years.

Prior to the CPO the following enquires will be undertaken:

•
Obtain previous survey results / information from PHUs and Consumer New Zealand
Information
•
Conduct  internet  search  to  ascertain  whether  there  are  any  breaches  of  the  Fair
Trading Act 1986
•
Confirmation of owner current owner and operating hours
•
Liaise with Public Health Units. Organise Health Protection Officer assistance with
CPO
Official

Two Ministry of Health compliance and enforcement contractors s 9(2)(a)

the
will undertake the CPOs. The premises to be visited will be allocated according to
their region:
s 9(2)(a)
– Wellington region, Christchurch, Southland, Northland, Bay of Plenty
s 9(2)(a)
– Hawkes Bay, Taranaki, Auckland, Marlborough.
under

An HPO from each region will assist with the CPO. If a service is provided, the HPO will
remain in the vehicle with the volunteer to ensure the volunteer’s safety and wellbeing.
The enforcement officer will enter the premises and interview the operator.

Procedure

The procedure for conducting a CPO will follow the procedure outlined in the ‘Controlled
Released
Purchase Operations’ chapter of the Smokefree Compliance and Enforcement Manual.

9

Appendix 1
The Volunteer

The volunteer will be carefully selected, well trained and credible. The parent(s) and / or
caregiver  of  the  volunteer  will  be  required  to  provide  consent.  The  volunteer  will  be
female and aged 16-17 years. The volunteer will be either skin type ii, iii or iv.
The  volunteer  will  be  informed  that  they  are  not  to  carry  any  identification.  If  the
volunteer is asked for their age, they will be instructed to reply truthfully.  The volunteer
will be familiar with the forms they will be required to complete if a service is offered. The
volunteer will enter the sunbed room, but will not have a sunbed session.

1982
Prior to the CPO the volunteer will be required to complete the CPO forms and will have
their photograph taken. The volunteer will also complete the skin assessment form and
Act
the consent form contained in the Standard so that they are familiar with the layout and
content of these forms.

The volunteer will be given specific information about the solaria. This will be contained
in  a  Premises  Profile  file  which  will  include  the  type  of  premises  (e.g.  beauty  clinic,
gymnasium),  the  type  of  sunbed  (e.g.  horizontal  or  vertical),  operation  of  sunbed  (e.g.
token operated or time set by operator), a photograph of the owner or operator (if one is
available) and any material or advertising that has been identified as being in breach of
Information
the Fair Trading Act 1986.

The volunteer will be given enough money to purchase one tanning session.

Where the compliance officer is required to enter the solaria to interview the operator, a
Official
staff  member  from  the  Public  Health  Unit  will  stay  with  the  volunteer.  It  is  not
recommended the volunteer is left alone in any circumstances.
the

Service

The volunteer will enter the solaria and request a tanning session. They will be instructed
not to request a session from a person who looks younger than 18 years. The volunteer
under
may be asked to provide their proof of age document. If this occurs, the volunteer will
state that they do not have any identification. The volunteer may be asked their age and
where this occurs, they will reply truthfully.

If  a  tanning  session  is  offered,  the  volunteer  may  be  asked  to  complete  the  skin
assessment and consent forms. The forms will either be completed by the volunteer, or
Released
with  the  assistance  of  the  operator.  This  will  take  approximately  10  –  20  minutes  to
complete. The volunteer will provide truthful answers when completing the forms.

The volunteer will give their correct name and date of birth however will give a fictious
address and the mobile number of the enforcement officer.

10

Appendix 1
The volunteer will purchase one tanning session which will cost between $8 - $20 dollars.
The volunteer will pay in cash.

The volunteer may be asked if they have parental / caregiver consent. Where this occurs,
the volunteer will answer ‘yes’. In some instances, the volunteer may be given a consent
form and be requested to return with the completed form. This form will subsequently be
completed by the enforcement officer (using their name) and a 2nd visit will be arranged.

If the volunteer is permitted to have a tanning session, they will enter the sunbed room. 1982
The operator may provide the volunteer with information on how to operate the sunbed.
Under no circumstances will the volunteer have a tanning session.

Act
The volunteer may have to wait for their session if another client is using the sunbed. They
will text / ring the enforcement officer to let the enforcement officer know that they are
required to wait and may therefore be in the premises longer than anticipated.

Where  possible,  the  volunteer  will  obtain  copies  of  any  advertising  brochures  or
pamphlets on display at the premises (whether at reception or in the sunbed room).
Operators  do  not  stay  in  the  room  while  tanning  sessions  are  taking  place.  When  the
Information
operator leaves the room, the volunteer will make a written note of:

•
Any advertising displayed on the walls or on the exterior of the sunbed unit;
•
The type of bed in the room i.e. vertical or horizontal;
•
The mode of operating the sunbed i.e. token; timer pre-set by operator or timer able
Official
to be set by volunteer
•
The duration of the tanning session
•
Any eye protection provided
the
•
Any hygiene notices regarding cleaning of the sunbed after use

The  volunteer  will  be  requested  to  take  photographs  on  their  mobile  phone.  These
photographs will be of the layout of the sunbed room. These photographs will supplement
under
any notes taken. The volunteer should not take photographs if there is a sign anywhere in
the premises that prohibits the use of personal photography.

This should take approximately 10 – 15 minutes. After the volunteer has finished making
notes and taking photographs, they will leave the premises and return immediately to the
vehicle.
Released

If the volunteer feels unsafe at any stage of the CPO, they will be instructed to leave the
premises immediately.

11

Appendix 1
The  volunteer  will  give  the  enforcement  officer  any  change,  any  forms  or promotional
material they have been given by the operator (for example a copy of the consent form)
and any notes made by the volunteer whilst inside the sunbed room.

The volunteer will then complete the Solaria Controlled Purchase Notes.

Interviewing Owner and / or Operator
The photographs of the volunteer will be taken into the premises, along with a Letter of
Authorisation  signed  by  the  Director-General  of  Health  (Appendix  7).  The  enforcement 1982
officer will also produce photographic evidence as to their identity.
Upon  entering  the  premises  the  enforcement  officer  will  approach  the  operator  and
Act
introduce themselves. The reason for the visit will be explained, and that the enforcement
officer has some questions they would like to ask.

Note: The term ‘operator’ is not defined in the Act. Given its ordinary meaning and usage,
an  ‘operator’  is  a  person  that  enables  a  device  or  machinery  to  operate  or  be  used.
Therefore, the ‘operator’ is the person who enables an artificial tanning service to take
place and could be an employee / contractor / owner.  Information

The interview with the operator /owner will be recorded on the Interview Under Caution
Form (Appendix 6).  Three interviews have been pre-formatted:
•  Interview plan for non-owner (operator)
•
Official
  Interview plan for owners (where service provided by the owner)
•  Interview plan for owners (where service provided by a staff member)

the
As there are no powers to request information, the operator will be informed that they
are not required to answer any questions, and they may have a lawyer or a support person
of their choosing present to provide assistance.

under
If it appears the operator is having difficulty understanding the questions, he/she will be
offered  the  services  of  an  interpreter.  If  the  operator  requests  the  services  of  an
interpreter, the interview will then cease, and interpreter will be arranged.

If  the  operator  states  they  are  under  the  age  of  18  years,  the  interview  will  cease
immediately.
Released

If  the  operator  is  not  the  owner  and  the  owner  is  present  the  above  process  will  be
repeated and the owner will be interviewed.

Wherever possible both the operator and the owner should be interviewed in full as both
will  potentially be liable  under the Health Act. Their statements may provide  a  helpful

12

Appendix 1
cross-check  against  each  other  and  an  interview  provides  an  opportunity  for  a  more
thorough or meaningful interaction with an owner, in comparison to sending a letter. If
the owner is not present at the time of the visit, the Compliance Officer should ring the
owner as soon as possible after the CPO visit and arrange a suitable time for an interview.

Where there is more than one owner (more than one director of a company, partnership)
it  is  recommended  one  owner  is  interviewed  in  person  and  the  other  owner/s  are
interviewed  via  telephone  as  it  is  important  to  assess  the  liability  of  all  parties  to  the
offence.
1982
Points to address during interview with operator (owner)
Act
• What type of UV sunbed machine is used (i.e. stand up or horizontal?)
• How long did the staff member permit the volunteer to use the service?
• Why did the staff member provide the service to the volunteer?
• What training have you had with regard to providing this service? If training, was it
recorded? [If recorded request to view the document]
• Briefly explain the Infringement Notice process
Information
• Ask the staff member for any comment
Points to address during interview with owner
• Who owns the business? (If a company ask for the names of the directors)
Official
• How long has the owner owned the business for?
•
the
How long has the staff member who provided the service worked for the owner?
• Is the owner aware that it is an offence to provide an artificial tanning service to a
person under 18 years?
• Does the owner provide training to their staff on carrying out skin type assessments?
under
(If yes, ask for copy of training materials)
• If yes to the above question, Does the owner have any copies of training records?
• Is the owner aware of the ban on providing an artificial tanning service to a person
under 18?
•
Released
Request permission to view the sunbed room
• If there is any promotional material displayed, advise the owner that it must be
removed
• Briefly explain the Infringement Notice process.
• Ask the owner for any comment

13

Appendix 1

Copies of documents and photographs will not be taken unless the operator or the owner
consents  to  this  at  the  time  of  the  interview.  It  must  be  proven  the  owner/operator
provided an artificial UV tanning service. Although not defined in the Act, in the context
of the provision of artificial UV tanning services, the word ‘provide’ will be taken to mean
‘make  available’.  The Oxford  English Dictionary8 definition of “provide” includes “make
available for use; supply”.

In some circumstances the owner may also need to be informed that they are displaying 1982
false  or  misleading  material  in  breach  of  the  Fair  Trading  Act  1986  or  are  in  breach  of
Council bylaws. Where the operator is displaying false or misleading material, they will be
informed  that  this  information  will  be  forwarded  to  the  Commerce  Commission  for
Act
further action. Where the operator is providing artificial UV tanning services in breach of
Council bylaws, the enforcement officer will inform the operator that this information will
be forwarded onto the appropriate local council for further action.

No service

If no sunbed session is provided, the volunteer will return to the car, retain the money for
the purchase, and repeat the process at the next premises.
Information

Following the conclusion of the CPO, a letter will be sent to the owner to inform them that
a CPO was conducted and there was no provision of a UV tanning service to the underage
volunteer (Appendix 8).

Official
Evidence collection
The change and any documentation will be kept in the custody of the enforcement officer.
the

Reporting and Files
The Act provides for the issuing of an infringement notice which must be in the ‘prescribed
form’  and  must  contain  certain  particulars  (section116A(4)).  As  there  are  currently  no
regulations  which  set  out  the  ‘prescribed  form’  of  an  infringement  notice,  in  most
under
instances, a warning letter will be sent to the operator.

The warning letter will outline the circumstances of the breach and the relevant sections
of  the  Act  including  the  maximum  penalties.  The  letter  will  conclude  by  advising  the
operator  that  enforcement  officers  will  continue  to  monitor  the  premises  to  ensure
compliance with the Act.
Released

There  may  be  a  small number  of  cases  where,  having  regard  to  the  Solicitor  General’s
Prosecution Guidelines, a prosecution may be warranted. Where this situation arises, the
advice of Health Legal will be sought to determine how to proceed.

8 https://en.oxforddictionaries.com/definition/provide (accessed 25 March 2019)

14

Appendix 1

A report summarising the findings of the Controlled Purchase Operation will be prepared
and forwarded to Sally Gilbert, Manager, Environmental and Border Health, Ministry of
Health. A copy will also be provided to Peter Burt, Contract Manager, Ministry of Health.

Media
Any media enquiries will be responded to by the Ministry of Health.

List of Appendices
1982
Appendix 1: Ministry of Health: Non-compliant Operators 2018
Act
Appendix 2: Consumer Institute Non-Compliant Operators 2018
Appendix 3: Caregiver / Volunteer Consent Form
Appendix 4: Volunteer Acknowledgement Form
Appendix 5: Volunteer Solaria Controlled Purchase
Appendix 6: Interview Under Caution Form
Appendix 7:  DG introductory letter (includes infringement notice authorisation)
Information
Appendix 8:  Letter to owner - no service
Appendix 9: Letter to owner – service, no prosecution
Appendix 10: Infringement Notice Scheme: Policy and Procedure

Official

the

under

Released

15

Appendix 1

Appendix 1 – Ministry of Health: Non-Compliant Operators 2018

s 6(c)
1982
Act
Information
Official
the
under
Released

16

s 6(c)
1982
Act

Information

Official

the

under

Released

17

Appendix 2 – Consumer New Zealand: Non-Compliant Operators
2018

In  February  2018  nine  operators  were  identified  as  being  non-compliant  with  the
Standards by Consumer NZ. One operator was also listed in the Ministry of Health list of
Non-Compliant  Operators  s 6(c)
  Therefore,  nine
further operators will be checked for compliance.
Note: Background enquiries will be undertaken in order to prepare an operator profile
once the project has been approved.
1982

s 6(c)
Act
Information
Official
the
under
Released

18

s 6(c)

Further operators of concern
Consider  checking  operators  identified  by  NZ Consumer  2017  as  operators  of  concern.
Eight  operators  were  identified  as  either  having  not  provided  consent  forms  to  the
mystery shopper and / or permitted a fair skinned person to use the sunbed.  Three of 1982
these  operators  have  been  identified  in  Appendix  1  and  2.  If  time  permits,  the  five
outstanding operators (no service in their area or travel time permits) will be checked for
compliance.
Act

s 6(c)




Information

Official

the

under

Released

19

Appendix 3 – Caregiver/ Volunteer Consent Form

1.
Parent/ Caregiver Section:

(a)
My full name is
1982
____________________________________________________________
and I am the parent/caregiver of
Act
____________________________________________________________
(b)
The procedure for the Solaria Controlled Purchase Operation has been
explained to me by
_______________________________________________________________
and I have given my consent for
_______________________________________________ to participate as
a volunteer. I have been shown a copy of the Volunteer Briefing Form.
Information
(c)
I understand that ___________________ will be required to request a sunbed
session however she will not be required to undertake the session.
I understand that ___________________ may be required to attend court to
Official
give evidence

the
Signed:

___________________________________
Date:

___________________________________
under
Time:

___________________________________
Place:

___________________________________

Released

20

2.
Volunteer Section:
(a)
My full name is________________________________ and my date of birth is
__________. I am aged
years. My mobile number is:


(b)
I have had the procedure for the Solaria Controlled Purchase Operation
1982
explained to me by ______________________________       and I am
volunteering to assist in this project.
Act

(c)
I confirm that I have never used a sunbed.

Signed:

___________________________________
Date:

___________________________________
Information
Time:

___________________________________
Place:

___________________________________
Official
Witnessed:

___________________________________
the
under
Released

21

Appendix 4 – Volunteer Briefing Form
Thank you for your interest in being involved in the CPO.

You  have  already  been  verbally  briefed  about  what  will  be  happening  during  the
Solaria Controlled Purchase Operation and the role of the under 18 volunteer. Please
read the following information and feel free to ask any questions if anything is unclear.

•
1982

Photographs have been taken of you. They will be shown to the operator if you
are offered a service. If requested your correct name and date of birth (age) will
be provided to the operator.
Act
•
Immediately  prior  to  entering  the  premises  you  will  be  given  information  to
assist you to be familiar with the operator/operation. For example, type of bed,
(vertical / horizontal), location of the sunbed room, documents that you may be
or may not be asked to complete, reason for visiting the particular premises.
•
You  have  been  shown  how  to  complete  the  consent  form  and  the  skin
assessment form. If requested by the operator to complete these forms you will
write the same information as in the practice forms. Your guardian will be the
name of the enforcement officer and you will provide a fictious address. You
Information
will be familiar with the skin assessment form and be familiar with the Fitzpatrick
Scale and how to complete it according to your skin type.
•
You will be permitted to have your mobile phone. If you are required to wait for
the service, (staff may be busy / someone is using the service) you should text
or ring the enforcement officer to inform them you will be delayed. If a phone
Official
number is asked from you will give the operator the enforcement officer’s mobile
number.
the
•
You should take photographs on your mobile phone of the sunbed room (e.g.
layout, instructions, position of the bed, equipment provided such as goggles.
However, if there is a sign which indicates photographs are not permitted, you
should not take any.
under
•
If at any time you feel unsafe or you change your mind about taking part in the
Controlled  Purchase  Operation  you  should  to  leave  the  premises  and
immediately return to the car.
•
In  some  instances,  the  operator  may  show  you  how  to  turn  the  sunbed  on.
However, under no circumstances are you to turn the sunbed on.
•
When you enter the premises, if there are two or more operators, you should
Released
approach  the  person  who  appears  to  be  over  18.  Do  not  request  a  tanning
session from a person who looks under the age of 18 years.
•
You may have been shown a photograph of the operator. If possible, you should
approach this person for a tanning service.

22

Appendix 1
•
The operator will inform you of the cost of a session and in most instances the
cost of purchasing a concession card.
•
You  will  be  provided  with  sufficient  money  for  one  session.  The  cost  of  one
session will be between $8 - $20 dollars.
•
The operator may give you documents (advertising the sunbed service or their
business, business card). These are to be accepted.
•
Advertising brochures or pamphlets may be on display at the counter or sunbed
room. You should obtain a copy of this advertising material.
•
1982

If you are asked your age you are to tell the truth. If you are asked for proof of
age identification (drivers’ licence, passport, HANZ+18 card) you will state you
do not have any identification.
Act
•
If you are asked whether you have previously had any sunbed sessions, you
will truthfully reply no.
•
If the service is refused, you are to politely thank the operator and immediately
return to the car.
•
You  may  receive  the  service  without  being  asked  any  questions  or  being
requested to complete any forms.
•
You may receive the service after being requested to complete forms. You have
Information
been given copies of these forms – Consent Form, Skin Assessment form. You
should be aware these forms may slightly differ in nature, however, will usually
have the same information.
•
The operators may assist you to complete these forms or alternatively you will
be asked to complete them yourself. You may be given a copy of the consent
Official
form. Do not request a copy yourself.
•
The operator may ask if you have parental consent. You will reply yes. If the
the
operator asks you to contact your parent, you will reply they are not able to be
contacted as they are working.
•
The  operator  may  give  you  a  parental  form  to  complete  before  you  are
permitted to use the sunbed.  Take the form and return to the car.
under
•
The completing of the forms may take approximately 10-20 minutes.
•
When the forms are completed, the operator will decide whether or not to permit
you to use the sunbed. If the operator declines to let you use the sunbed, you
are to leave the premises immediately and return to the car.
•
If the operator permits you to use the sunbed, they will most likely inform you
how long your initial session will be. A session will usually be between 8 – 20
Released
minutes.
•
You should pay particular attention to the operator’s verbal instructions.  For
example, they may inform you about how to use the sunbed, that you cannot
have a session within 48 hours.

23

Appendix 1
•
The conversation will need to be recorded on the Volunteer Notes. You have
been provided with a copy of the Volunteer Notes form prior to the CPO.
•
The operator may give you information about the health concerns/ benefits of
the  sunbed.  For  instance,  they  may  inform  you  not  to  use  if  pregnant,  or
alternatively that using a sunbed is safe, better than the sun and/or is good for
increasing Vitamin D.
•
You  are  required  to  look  for  warning  signs  at  both  the  entrance  and  in  the
sunbed room. You have been shown a copy of the warning sign.
•
Once the operator has shown you how to use the sunbed, they will leave you 1982
in  the  sunbed  room.  You  should make notes  of  the  layout  of  the  room /  eye
protection / hygiene (towels / sprays) type of bed and advertising, if any. You
should also make notes regarding the appearance of the operator.
Act
•
Once  you  have  finished  making  your  notes,  leave  the  premises  immediately
and return to the vehicle.
•
Once you have returned to the vehicle, you will give the enforcement officer any
change, any documents you were given by the operator and your handwritten
notes
•
The Enforcement Officer will then give you the Solaria Volunteer Notes Form
to complete.
Information
•
Important:  If  you  have  any  concerns  at  any  stage  during  the
CPO return to the vehicle immediately.

s 9(2)(b)(ii)

Official

the
I am aware my parent/ caregiver has seen a copy of this form. I have read and
understand the information detailed above.

Volunteer’s name ____________________________________________________
under

Volunteer’s signature ________________________________________________

Enforcement Officer _________________________________________________

Date _______________________________________________________________
Released

24

Appendix 1
Appendix 5 – Volunteer Controlled Purchase Operation Notes

Volunteer Information

Full Name:
Address:

Phone: (home)
Parent/Caregiver Name:

Phone: (cell phone)
1982
Date of Birth:

Age:

Ethnicity:
Photo Taken:

Facial Yes/No

Full Length  Yes/No  Act
Solaria Volunteer Consent Form Completed:
Yes/No

Premises Information

Premises Type:
Hairdressers

Gym

Beauty Clinic

Other
Information
Premises Name:
Premises Address:
Warning sign at counter:

Yes/No
Advertising signs:  (describe)

Yes/No

Official

the

Age/ Identification

under
Were you asked your age?

Yes/No
Were you asked for identification?

Yes/No
Were you asked if you had parental consent ?

Yes/No

Were you given a form for parental consent?

Yes/No

Released

25

Appendix 1
Forms

Were you asked to complete a Skin Assessment Form?
Yes/No
Did the operator complete the Skin Assessment Form?
Yes/No

Were you given a copy?



Yes/No
Were you asked to sign an acknowledgement form?

Yes/ No
Did the acknowledgement form include a statement that you

were over 18 years of age?



Yes/ No
1982
Did you sign the acknowledgement form?


Yes/No
Were you given any other forms?


Yes/No  Act

How long were you permitted on the sunbed?

           Minutes

Description of Operator

(Complete information where known)
Sex:

Approx. Age:
Information
Ethnicity

Unknown
(Circle the appropriate information, or if you are unsure, circle ‘unknown’)
Height
Tall
Short
Medium

Unknown
Build
Thin
Medium
Solid

Unknown
Eyes
Blue
Brown
Green
Black
Hazel
Unknown
Official
Hair Type
Straight
Wavy
Curly
Bald

Unknown
Hair Colour  Brown
Black
Blond
Ginger
Grey
White  Unknown
Hair Style
Short
Long
Collar

Unknown
length
the
Facial Hair
Yes/No
Moustache  Beard

Unknown
Clothes

Other
E.g. Tattoo, jewellery, name badge
Features
Staff
Staff member? Operator given instructions? Clients present.
under
Clients

Released

Solaria room (sketch on back of paper / above space)

26

Appendix 1

Location:
Type of solaria:

Horizontal/Vertical
Eye Protection provided?

Yes/No

Warning signs?

Yes/No
Any Advertising posters?

Yes/No
Any instructions for cleaning the bed?

Yes/No
Session duration?
1982
Token operated?

Yes/No
Time set by operator?

Yes/No
Act

Documentary Exhibits

Photographs taken

Yes/No

Number and description of photographs

Information
For each photograph, state location taken and description)

1.
2.
3.
4.
Official
5.
6.
7.
the
8.

Photographs have been forwarded to Compliance Officer
Yes

under

Advertising material (brochures and pamphlets)
Yes/No

Describe advertising material (location obtained, name, content)
1.
2.
3.
Released
4.

27

Appendix 1
Circumstances
(State exactly what happened when you went into the premises including
who said what)

1982

Act

Information

Official

the

Amount:
Change:
Change given to:
under
Receipt:    Yes/No
Receipt given to:
Date / Time:
Volunteer Signature:
Released

28

Appendix 1
Appendix 6 – Interview Under Caution (All interviews)

Person Interviewed:

Place of Interview:

Time
Time
Date:
Commenced:
Completed:

1982
Enforcement Officer
Other Persons Present

Act
Q/A

My name is …………………………………… I am an Enforcement Officer. I
am  acting  under  the  direction  of  the  Ministry  of  Health.  Here  is  an
introductory  letter  by  the  Director  General  of  Health.  (show  photographic
identification and DG letter).
I am investigating the provision of an artificial UV tanning service
(sunbed/solaria service) to a person under the age of 18 years. I would
Information
like to ask you some questions in connection with my investigation.
You are not required to answer any of my questions. Anything you do say
will be recorded and may be given in evidence.
I would like to make sure I have an accurate record of our conversation and
Official
so I will:
•  Write down my questions and your answers to my questions
the
If you wish you may have a lawyer  or a support person of  your choosing
here to assist you and we can allow time for you to arrange this.

  under

Consent and checking understanding
1.
Do you understand what I have just said?  Do you have any questions?
(Make notes of any acknowledgement of understanding or any questions
asked)

2.
Are you willing to answer some questions? (Make a note of agreement)
Released

3.
I will make written notes of this interview

29

Appendix 1

Personal Details

4.
What is your full name?

5.
What is your residential address?

6.
What is your date of birth?

1982
7.
What is your occupation?
Act

8.
What is your contact phone number?

9.
Are you the operator / owner of the business?

Information

Official
the
under
Released

30

Appendix 1

INTERVIEW PLAN FOR NON-OWNERS

Owner /employment details
10.
What is the owner’s name and contact phone number?

11.
How long have you worked here for?

1982

Acknowledgement of service to volunteer
Act
This person has just been provided with an artificial UV tanning service.
12.
She is [volunteer’s age]. Do you recognise this person?

Did you provide that person with an artificial UV tanning service a short
13.
time ago?

Information
14.
If service is denied: (cross out section 14 if N/A)
The person the volunteer described as having provided the service
14.1
matches your description [State and record description given by
volunteer.]
Official

the
That description matches what you are wearing doesn’t it? [Make notes of
14.2
clothing worn by interviewee]

under
Is there anyone else working here today that matches that description?
14.3
Record name and details and ask to speak to that person next, but in the
meantime continue with interview” question 17 and then questions 21
onwards.

Released

Service Provided
15.
How long did you permit the volunteer to use the sunbed/solaria?

31

Appendix 1
16.
What type of sunbed / solaria is used?

Pre-service due diligence
Is a new customer ordinarily required to complete forms before their first
17.
sunbed service?

1982
Did the volunteer complete any forms or paperwork before you provided
18.
the service? Request copies of those forms – record what forms Act

19.
Did you ask to see any proof of the volunteer’s age? Why or why not?

20.
Is it part of the salon / business’s usual process to ask for proof of age?

Information
Do you know it is illegal to provide a person under the age of 18 years with
21.
an artificial UV tanning service?

Official

Training
Have you received any training in relation to age-restrictions for sunbed
22.
the
services?

Have you received any other training in relation to carrying out skin-type
23.
under
assessments?

Have you received any other training in relation to providing articicial UV
24.
tanning services?

Released
25.
What type of training and how often?

32

Appendix 1
Can you provide copies of any training records or materials? Record
26.
consent in notes.

Opportunity to respond
27.
Do you have any further comment to make at this stage?

1982

Inspection of premises
Request permission to view the sunbed room. Make note of  consent or
Act
28.
refusal.

Request permission to photograph the sunbed room. . Make note of
29.
consent or refusal.

Information
Request copies of (or permission to photograph) any promotional material
30.
or posters.  Make note of consent or refusal.

Record information of sunbed room / photographs / promotional material.
Official

Make notes of conversation whilst viewing sunbed / obtaining photographs
/ promotional material
the

  under

Released

33

Appendix 1

1982
Is the solaria displaying false or misleading material in breach of the Fair
Trading Act 1986 or are in breach of Council by-laws. Inform the operator of
Act

the allegation and this information will be forwarded to the Commerce
Commission and / or appropriate territorial authority. Take notes of their
response and if they remove the advertising material from display.

Information

Closing
31.
Do you have any final comment to make?

Official
The next step from the Ministry of Health’s perspective is for a decision to
be made about the appropriate enforcement in this case. The options
the

include taking no further action or a criminal prosecution. The Health Act
also provides for infringement notices to be issued (which is bit like a fine)
in the future. You will be advised by letter of the decision in this case.
Offer opportunity to review and sign notes. Makes notes of any reasons to
under

review and sign the notes. Record if copy requested and provided.

Signature:
Released
Signature witnessed by:
Date:

34

Appendix 1
INTERVIEW PLAN FOR OWNERS (where service provided by the owner)

Ownership details
10.
How long have you owned the business for?

11.
What is the business’s structure (company, partnership, etc.)
1982

12.
Who are the other directors or partners (if any)?
Act

Are you authorised to speak on behalf of the company/other
13.
directors/partnership?

Acknowledgement of service to volunteer
Information
This person has just been provided with an artificial UV tanning service.
14.
She is [volunteer’s age]. Do you recognise this person?

Official
Did you provide that person with an artificial UV tanning service a short
15.
time ago?
the

16
If service is denied altogether
The person the volunteer described as having the service matches your
16.1
under
description. [State and record description given by volunteer].

That description matches what you are wearing doesn’t it. Make notes of
16.2
clothing worn by interviewee.

Released Is there anyone else working here today that matches that description?
16.3
Record name and details and ask to speak to that person next, but in the
meantime continue with the interview.

35

Appendix 1

Service provided
17.
How long did you permit the volunteer to use the sunbed / solaria?

18.
What kind of sunbed / solaria is used?

Pre-service due diligence
1982
Is a customer ordinarily required to complete forms before their first
19.
sunbed service?
Act

Did the volunteer complete any forms or paperwork before you provided
20.
the service? Request copies of those forms

21.
Did you ask to see any proof of the volunteer’s age? Why or why not.
Information

22.
Is it part of your usual process to ask for proof of age.

Official
Do you know it is illegal to provide a person under the age of 18 years with
23.
an artificial UV tanning service?
the

Opportunity to respond
under
24.
Do you have any further comment to make at this stage?

Inspection of premises
Request permission to view the sunbed room. Make note of consent or
25.
refusal.
Released

Request permission to photograph the sunbed room. Make note of
26.
consent or refusal.

36

Appendix 1

Request copies of (or permission to photograph) any promotional material
27.
or posters.  Make note of consent or refusal.

Record information of sunbed room / photographs / promotional material.

Make notes of conversation whilst viewing sunbed / obtaining photographs
/ promotional material
1982

Act

Information

Official

the

  under

Released Is the solaria displaying false or misleading material in breach of the Fair
Trading Act 1986 or are in breach of Council by laws. Inform the operator of

the allegation and this information will be forwarded to the Commerce
Commission and / or appropriate territorial authority. Take notes of their
response and if they remove the advertising material from display.

37

Appendix 1

Closing
28.
Do you have any final comment to make?

1982
The next step from the Ministry of Health’s perspective is for a decision to
be made about the appropriate enforcement in this case. The options
Act

include taking no further action or a criminal prosecution. The Health Act
also provides for infringement notices to be issued (which is bit like a fine)
in the future. You will be advised by letter of the decision in this case.
Offer opportunity to review and sign notes. Makes notes of any reasons to

review and sign the notes. Record if copy requested and provided.

Information
Signature:
Signature witnessed by:
Date:
Official

the
under
Released

38

Appendix 1
INTERVEIW PLAN FOR OWNERS (where service provided by a staff member)

Ownership details
10.
How long have you owned the business for?

11.
What is the business’s structure (company, partnership, etc.)

1982
12.
Who are the other directors or partners (if any)?
Act

Are you authorised to speak on behalf of the company/other
13.
directors/partnership?

Acknowledgement of service to volunteer
Information
This person has just been provided with an artificial UV tanning service.
14.
She is [volunteer’s age]. Do you recognise this person?

Did you provide that person with an artificial UV tanning service a short
15.
Official
time ago?

the
16.
How long has the staff member who provided the service worked here for?

under
17
If service is denied altogether
The person the volunteer described as having the service matches your
17.1
staff member’s description. [State and record description given by
volunteer].

That description matches what your staff member is wearing doesn’t it?
Released
17.2
Make notes of clothing worn by staff member.

Pre-service due diligence

39

Appendix 1
Is a new customer ordinarily required to complete forms before their first
18.
sunbed service?

19.
Is it part of the salon / business’s usual process to ask for proof of age?

Do you know it is illegal to provide a person under the age of 18 years with
20.
an artificial UV tanning service?
1982

Act

Training
Have you provided your staff with any training in relation to age-restriction
21.
for sunbed services?

22.
What kind of training, and how often?
Information

Have you provided you staff with any other training to relation to carrying
23.
out skin-type assessments?

Official
24.
What kind of training, and how often?
the

Have you provided you staff with any other training in relation to providing
25.
artificial UV training services?
under

26
What kind of training, and how often?

Can you provide copies of any training records or materials? Make notes
27
of records obtained.
Released

Opportunity to respond
28.
Do you have any further comment to make at this stage?

40

Appendix 1

Inspection of premises
Request permission to view the sunbed room. Make note of consent or
29.
refusal.

Request permission to photograph the sunbed room. Make note of
30.
consent or refusal.
1982

Act
Request copies of (or permission to photograph) any promotional material
31.
or posters.  Make note of consent or refusal.

Record information of sunbed room / photographs / promotional material.

Make notes of conversation whilst viewing sunbed / obtaining photographs
/ promotional material
Information

Official

the

  under

Released

41

Appendix 1
Is the solaria displaying false or misleading material in breach of the Fair
Trading Act 1986 or are in breach of Council by laws. Inform the operator of

the allegation and this information will be forwarded to the Commerce
Commission and / or appropriate territorial authority. Take note of their
response and if they remove the advertising material from display.

1982

Closing
Act
32.
Do you have any final comment to make?

The next step from the Ministry of Health’s perspective is for a decision to
be made about the appropriate enforcement in this case. The options

include taking no further action or a criminal prosecution. The Health Act
also provides for infringement notices to be issued (which is bit like a fine)
in the future. You will be advised by letter of the decision in this case.
Information
Offer opportunity to review and sign notes. Makes notes of any reasons to

review and sign the notes. Record if copy requested and provided.

Official
Signature:
Signature witnessed by:
the
Date:

under

Released

42

Appendix 1

Appendix 8 - Letter to Retailer: No Sale

[Date]

[Address]

1982
Dear Sir/Madam
Section 114 Health Act 1956 - Ban on providing artificial UV tanning services to persons
Act
under 18 years
Your premises [name of premises] was visited by an Enforcement Officer acting under
the  authority  of  the  Director-General  of  Health  on  [insert  relevant  date]  as  part  of  a
Controlled Purchase Operation. The purpose of the Controlled Purchase Operation was to
assess retailer compliance with section 114 of the Health Act 1956 (the Act) which bans
the provision of artificial UV tanning services to persons under 18 years.
Information
I  am  pleased  to  inform  you  that  of  the  [number  of  premises  visited]  premises  visited
during this period, you were amongst the [enter number] premises that did not provide
an artificial tanning service to a person under the age of 18 years.

Enforcement Officers will continue to check sunbed operators for compliance with section
Official
114 of the Act so please ensure that both you and your staff remain familiar with the legal
requirements  in  relation  to  the  provision  of  artificial  UV  tanning  services  to  underage
the
persons.

The provision of artificial UV tanning services to persons under the age of 18 is viewed very
seriously  and  it  is  the  Ministry  of  Health’s  policy  to  issue  an  Infringement  Notice  where
breaches of the Act are proven or prosecute in appropriate cases.  In the case of a successful
under
prosecution, the maximum fine that can be ordered by the court is $10,000 in the case of a
body corporate (i.e. company) or $2,000 in the case of an individual.

Yours sincerely
Released

xxxxx

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Appendix 1

Appendix 9 - Letter to Retailer: Sale by an Employee (NFA
decision)

[Date]

[Address]

Dear Sir/Madam
1982
Section 114 Health Act 1956 - Ban on providing artificial UV tanning services to persons
under 18 years
Act

Your  premises  was  visited  by  an  Enforcement  Officer  acting  under  the  authority  of  the
Director-General  of  Health  on  [insert  relevant  date]  as  part  of  a  Controlled  Purchase
Operation.  The  purpose  of  the  Controlled  Purchase  Operation  was  to  assess  operator
compliance with section 114 of the Health Act 1956 (the Act) which bans the provision of
artificial UV tanning services to persons under 18 years.
During  a  visit  on  [date  of  visit],  your  employee,  [name],  provided  an  artificial  tanning
Information
service to a [age] year old volunteer.

On  this  occasion,  no  further  action  will  be  taken  against  you  as  the  owner  however
Enforcement  Officers  will  continue  to  visit  premises  to  monitor  compliance  with  the  Act.
Official
Please ensure that both you and your staff are fully familiar with the requirements of section
114 of the Act.

the
The provision of artificial UV tanning services to persons under the age of 18 is viewed very
seriously  and  it  is  the  Ministry  of  Health’s  policy  to  issue  an  Infringement  Notice  where
breaches  of  the  Act  are  proven  or  prosecute  in  appropriate  cases.    In  the  case  of  an
Infringement Notice, the maximum fee payable is $1,000 for an individual or $5,000 for a
under
body  corporate.  In  the  case  of  a  successful  prosecution,  the  maximum  fine  that  can  be
ordered by the court is $10,000 in the case of a body corporate (i.e. company) or $2,000 in
the case of an individual.

Yours sincerely

Released

xxxxx

44

Appendix 1
Appendix 10 – Director-General of Health: Letter of Authorisation

LETTER OF AUTHORISATION PURSUANT TO SECTION 116A
HEALTH ACT 1956

1982

PURSUANT to section 116A of the Health Act 1956, I hereby authorise [FULL NAME] as
Act
a duly authorised person for the purposes of issuing and serving infringement notices in
relation to the provision of artificial UV tanning services to persons under 18 years.

This Letter of Authorisation is effective immediately and remains in force for a period of
three years or until it is revoked by notice in writing the Director-General of Health.

Information

Dated at Wellington this      day of 2019

Official

Dr Ashley Bloomfield
the
Director-General of Health

under

Released

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Appendix 1
Appendix 11 – Infringement Notice Scheme: Policy and Procedure

Introduction
The Health Act 1956 (the Act) establishes an Infringement Notice scheme in relation to
the provision of artificial UV Tanning services to persons under the age of 18.
The  infringement  notice  scheme  provides  an  administratively  efficient  method  of
encouraging  compliance  with  the  Act  by  imposing  a  set  financial  penalty  and  the 1982
infringement offence notice is a proportionate response to offending, which avoids the
formality of court proceedings and does not impose a full criminal penalty.
Act
The  procedure  for  infringement  notices  is  prescribed  in  Section  21  of  the  Summary
Proceedings Act 1957. When an operator / owner is served an infringement notice they
will also be provided with a copy of their Summary of Rights.
Legislative Authority
Note: The authority to issue infringement notices does not have any practical effect until
regulations are prescribed.
Information
Section 114 provides that it is an offence for owners and operators of artificial UV tanning
services to provide an artificial UV tanning service to a person under 18 years.
It is a defence to a charge if the person who provided the service sighted an evidence of
age document (i.e. a current passport; a current New Zealand driving licence or a HANZ
Official
card with a photograph and date of birth).
the
A person who is alleged to have provided an artificial UV tanning service to a person under
18 years may be proceeded against by Court proceedings or by serving the person with
an Infringement Notice (section 116).
The  maximum  fine  for  committing  an  offence  against  section  114  is  $2,000  for  an
under
individual (section 114(3)(a) or $10,000 for a body corporate (section 114 (3)(b)).
The maximum infringement fee payable for committing an offence against section 114 is
$1,000 for an individual or $5,000 for a body corporate (section 117(1)(rb)).
An authorised person may issue infringement notices where they either observe a person
committing an infringement offence, or where they have reasonable cause to believe that
Released
an infringement offence is being, or has been committed.
An authorised person is any person, who is authorised by the Director-General to issue
infringement notices under section 116A.
An authorised person may serve the notice personally or post it to the person’s address.

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Appendix 1
Criteria for issuing an Infringement Notice
Whether or not an Infringement Notice should be issued will be determined on a case-by-
case basis taking into account the following factors:
•  Whether the owner / operator was made aware of the breaches prior to the Controlled
Purchase Operation;
•  Whether the owner/ operator has previously received a warning letter;
•  Whether the owner witnessed the operator providing the service and condoned the
activity;
1982
•  Where the operator is an employee, whether the employee received training on the
ban on providing UV tanning services to persons under 18.
Act
Rights of the recipient of an Infringement Notice
Upon receiving an Infringement Notice, (and a copy of their Summary of Rights) a person
may
•
pay the fee within 28 days of the date of the notice; or,
•
request in writing to waive the fee; or
Information
•
request a defended or non-defended hearing in the District Court.
The Ministry of Health may withdraw the Infringement Notice or reject a waiver request.
A letter must be sent following the Ministry’s decision, advising the person of the outcome
and the available options.
Official
Request for Waiver
the
Where a person wants the Ministry to consider waiving the Notice, they must provide a
written  explanation  outlining  their  reasons  for  this  and  must  include  the  date  of  the
infringement,  the  6-digit  Infringement  Notice  number,  and  their name,  phone  number
and address.    under
Upon receiving a request for waiver, the Ministry will consider the explanation provided
and advise the person in writing of the outcome.
Request for a Hearing
If a person denies liability for the offence, they must write to the Ministry within 28 days
of the date of the notice and request a defended hearing. The request must be signed and
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include the infringement notice number.

Non-defended hearing
If a person admits liability but want the Court to consider extenuating circumstances, a
non-defended hearing request must be made in writing to the Ministry within 28 days of

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Appendix 1
the date of the notice. The request must be signed and include the infringement notice
number.
Payment Process

An infringement fee can be paid in three ways:
1.  Internet Banking
Pay via Internet banking into account 030049 0001805 29 (Ministry of Health Crown
Account).
1982

2.  Cheque
Act
A cheque may be sent to the Ministry of Health at the following address:
Ministry of Health,
Health Legal – Infringement Officer,
PO Box 5013,
WELLINGTON 6140.
Information
Payment must be made within 28 days of the date of the notice.
Payment by instalments will not be accepted.

Official
Non-Payment Process

If payment is not received within the 28 days following the receipt of the infringement
the
notice, (or a request for a hearing has not been received within 28 days) a reminder
notice  will  be  sent  the  operator  and  /  or  owners  last  known  address.  The  reminder
notice will contain substantially the same particulars of the infringement notice.

under
If the operator / owner does not respond to their reminder notice within 28 days a copy
of the reminder notice will be sent to the Ministry of Justice. The Ministry of Justice do
accept instalment payments.

Note: This policy will be reviewed when the regulations are prescribed.

Released

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