Smokefree Compliance Manual Chapter 9.pdf

Smokefree Compliance and Enforcement Manual
Manatū Hauora
Smokefree
Compliance and
Enforcement Manual
Chapter 9: Controlled Purchase Operations
under the Official Information Act 1982
Released

Smokefree Compliance and Enforcement Manual

Chapter 9: Controlled Purchase Operations
Introduction
Controlled  Purchase  Operations  (CPOs)  are  planned  operations  designed  to
monitor and enforce the provisions in the SERPA relating to the sale of regulated
products to minors. The meaning of regulated products is found in section 2 and
means a tobacco product, vaping product, or herbal smoking product.
CPOs  involve  supervised  volunteers  aged  between  14  and  17  years  of  age
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attempting  to  buy  regulated  products  from  retail  premises  including  dairies,
supermarkets,  specialist  vape  retailers  and  service  stations.  In  the  ev
Act  ent that a
volunteer’s purchase is successful, the sel er and in some instances, the owner are
liable  to  an infringement  fine in the  first instance,  or  prosecution  via  the  District
Court.
For the purposes of this chapter, reference to the word ‘minor’ means a person
Information
younger than 18 years of age.
The Law
The sale of tobacco, vaping and herbal smoking products to minors is prohibited
Official
under section 40. In the event of a sale to a minor, the seller and the owner may
the
be liable even though the owner was not the person who sold the regulated
product to the minor.
Defences
under
‘Reasonable Precautions’ and ‘Due Diligence’
Section 40(3) of the SERPA provides a defence to a charge of sel ing a regulated
product to a minor if the person charged proves that the sale occurred without the
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person’s  knowledge  and  that  they  took  ‘reasonable  precautions’  and  exercised
‘due diligence’ to ensure that the person they sold the regulated product to was 18
years of age or older.
The  meaning  of  ‘reasonable  precautions’  is  ‘action  taken  beforehand’.  ‘Due
diligence’ refers to the level of judgement and care that a person would reasonably
be expected to do under particular circumstances. The defendant must produce
evidence that action was taken before the event to determine the age of the person
to whom the tobacco or herbal smoking product was sold, or (in the case of the

Smokefree Compliance and Enforcement Manual

prosecution of the owner of the shop) that a procedure was in place to check the
age of a buyer and that staff were trained in and aware of this procedure.
The owner must have taken active steps to check for proof of age before they can
activate the defence provision, for example, location of under 18 stickers, written
policy and procedures and training of staff members.
Where an owner seeks to use this provision as a defence to a charge based on the
acts of the owner’s staff, it is unlikely to be sufficient that the owner has simply oral y
instructed staff not to sell to under aged persons. The owner must have substantive
and  clear  policies  and  procedures  regarding  the  sale  of  tobacco  and  herbal
products which have been adequately communicated to staff.
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‘Evidence of Age’ Document – Section 40(4)  Act
In addition to section 40(3), a specific defence to a charge of sel ing a tobacco or
herbal smoking products is contained in section 40(4). Where a person proves that
they sighted an ‘evidence of age’ document indicating that the person to whom
the product was sold was 18 years of age or older, they are deemed to have proven
those matters referred to in section 40(3).
Information
The types of ‘evidence of age’ identification that are permissible are the same as
for the Sale and Supply of Alcohol Act 2012. These include a driver’s licence, passport
or Kiwi Access card (formerly known as a HANZ
Official  18+ card). These are all photo ID
cards. The original document must be presented – it cannot be a photo or copy of
the
the document.
Penalties
under
Repeat Offenders
A person who sells a tobacco, vaping or herbal smoking product to a minor is liable
to be issued with an infringement notice. A person who sells to a minor on a further
occasion may be prosecuted via the District Court and if convicted, is liable to a
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fine  up  to  $5,000  in  the  case  of  an  individual,  or  $10,000  in  the  case  of  a  body
corporate.
In addition, where a retailer has been convicted at least twice within a two-year
period  of  selling  a  tobacco  product  to  a  minor,  the  Court  has  the  power  under
section 45 to make a prohibition order, which may include an order preventing the
person  (and/or  the  shop  where  the  offence  occurred)  from  selling  tobacco
products for up to three months. A prohibition order may be made in addition to
any other sentence (ie, a fine) that the Court is able to impose.

Smokefree Compliance and Enforcement Manual

A person who fails to comply with a prohibition order may be fined up to $5,000
(individual) or $10,000 (body corporate).
Volunteers
CPOs  and  resulting  prosecutions  depend  upon  well-trained  and  credible
volunteers. It is therefore important that volunteers are careful y selected and are
wil ing to participate in the CPO without reservation. If they appear too nervous, the
retailer may be more likely to request ID.
Finding a volunteer
There are many sources of CPO volunteers. These include:
1982
•
Children of staff
Act
•
Children of local police
•
Relatives of yourselves, col eagues, friends
•
Children of colleagues or people in personal or business networks
•
Local secondary schools
•
Employment services
Information
•
Other youth organisations.
Volunteers must not be approached directly. Parental/guardian consent is the
first and most important criteria for selection of
Official volunteers.
The Volunteer’s Age  the
It  is  Ministry  of  Health  policy  that  it  is  both  appropriate  and  necessary  to  use
underage volunteers to help enforce section 40 of the SERPA. Volunteers must be
under
aged between 14 and 17 years.
The Volunteer’s Appearance
Volunteers should represent their age group – that is, look and act their age.
•
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During  the  CPO,  they  should  dress  in  their  normal  clothes  and  avoid
appearing older than they are. Make-up must not be worn
•
Hats,  beanies,  sunglasses,  caps  or  other  clothing  that  can  ‘disguise’  a
volunteer’s features must not be worn
•
Should a Court hearing eventuate the volunteer should dress as they did on
the  day  of  the  CPO.  This,  together  with  the  photographs  taken  of  the
volunteer  on  the  day  of  the  CPO,  helps  the  Judge  form  a  view  from  the
retailer’s perspective.

Smokefree Compliance and Enforcement Manual

The Volunteer’s Safety
The following points must be fol owed to ensure the safety of the volunteer:
•
The volunteer must always be accompanied by two adults on car journeys
to CPO locations
•
At least one adult (ie a person 18 years of age or older) must stay in the car
with the volunteer at all times
•
The need for the volunteer to cross a busy road or exit the car from the
driver’s side at premises should be avoided
•
Volunteers should be told that they can cease a CPO at any time if they feel
unsafe
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The Ideal Volunteer
Act
The ideal volunteer must:
•
Want to be part of the CPO and not feel pressured to continue if they want to
withdraw at any time
•
Be  able  to  cope  with  being  ‘told-off’.  Sometimes  retailers  refusing  to  sell
Information
cigarettes wil  also lecture the volunteer or be angry that they have tried to
purchase restricted products. The volunteer should be warned that this is
likely to happen
Official
•
Look under 18 years of age. It is not the aim of a CPO to ‘trick’ retailers into
selling  restricted  products  to  young  people,  but  rather  to  identify  and
the
apprehend retailers who knowingly or recklessly sell to minors
•
Be available after school, during weekends or school holidays
under
•
Understand  that  if  the  matter  is  defended,  they  may  be  required  to  give
evidence  in  Court.  It  is  important  to  explain  to  volunteers  and  their
parent(s)/guardian that this is a possibility. A defended hearing may mean
time  off  school  for  the  volunteer  (about  a  half-day  for  each  defended
matter).  It  is  there
Released  fore important that the Enforcement Officer maintains
regular contact with the volunteer and their parent(s)/guardian. To avoid
last-minute surprises, the Enforcement Officer should find out if and when
the  volunteer  wil   be  unavailable  because  of  holidays,  exams  or  other
commitments.
Paying Volunteers
Section 36(1) of the SERPA provides that any person who buys a tobacco product
cannot be offered gifts, cash rebates or the right to participate in any contest or
game in consideration for the purchase of that product.

Smokefree Compliance and Enforcement Manual

However, section 36(3) provides the following exception:
Subsections (1) and (2) do not apply in respect of any payment or reward to a
person who—
(a)purchases or attempts to purchase a regulated product for the
purpose of monitoring compliance with this Part; and
(b)is authorised—
(i)by the Director-General for that purpose; or
(ii)by a person authorised by the Director-General for that purpose.
It has been common practice to pay volunteers for their time or provide them with
a  gift  voucher  irrespective  of  the  CPO  outcome.  Payment  shall  be  made
1982   to
volunteers at the end of a CPO. The amount of any payment should be at least
Act
commensurate with the minimum youth wage. Information on the current wage
rates
is
available
from
https://www.govt.nz/browse/work/workers-
rights/minimum-wage/.
It is important to ensure that volunteers understand that payment is for the entire
CPO  and  is  not  related  in  any  way  to  sales  made  during  an  operation,  or  the
Information
success  of  any  prosecution  action.  Volunteers  in CPOs  that  do not  result  in  any
sales are therefore paid the same amount as volunteers in CPOs where one or more
sales occur.
Official
Briefing the Volunteer and their Guardian(s)
the
Once a suitable volunteer has been selected, a time should be arranged to speak
with  the  volunteer  and  their  parent(s)/guardian.  This  should  be  done  at  the
convenience of the volunteer’s fa
under  mily and in their own home if they prefer.
Informed  consent  must  be  obtained  from  the  volunteer  and  the
parent(s)/guardian  so  it  is  important  to  talk  to  both  at  length  and  answer  any
questions they may have.
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During the meeting, the following points should be discussed:
•
Why the CPO is being conducted and who wil  be involved. Section 40 of the
SERPA should be explained in simple terms. Volunteers should be reassured
that they are not committing an offence by buying cigarettes, vape or herbal
smoking products
•
Expectations on the volunteer. The points made under the section ‘The Ideal
Volunteer’ should be discussed

Smokefree Compliance and Enforcement Manual

•
The importance of being able to identify the person who sold the cigarettes,
vapes  or  herbal  smoking  product.  Sometimes  the  one  point  at  issue  in  a
Court hearing is the identity of the person who actual y sold to the volunteer
•
The  procedure  for  the  day.  The  pick-up  and  drop-off  times  should  be
specified, together with the names of other Enforcement Officers or staff who
wil  be involved in the CPO, and the area to be covered
•
The fact that there wil  be no attempt to trick the retailer. The volunteer wil
be expected to tel  the truth about their age if asked
•
The need for confidentiality. It is important that the volunteer is clear that
they should not discuss the specific shops visited with anyone  1982
•
Clothing to be worn. School uniform or casual and age-appropriate clothing
should be worn if the CPO is carried out after school, otherwise c
Act  asual and
age-appropriate clothing at any other time. It is important that the volunteer
looks their age. Hats must not be worn, as the retailer should be given every
opportunity to have a clear view of the volunteer so that they can accurately
assess the volunteer’s age. Makeup is not to be worn
•
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The volunteer notes. The volunteer and their parent(s)/guardian should be
shown the Volunteer CPO Notes (CPO4) that the volunteer wil  be required to
complete  in  the  event  of  a  sale  so  that  the  volunteer  and  their
parent(s)/guardian  are  aware  of  the  detail  that  the  volunteer  wil   be
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expected to gather while in the shop and during the sale. The reason why
such detail is required should
the  be explained as well as its place in the Court
process. The volunteer should be told that if they do not remember a detail,
it is better to write ‘unknown’ than to guess
under
•
A volunteer must not be sent into their local dairy or service station, or one
owned by a family friend or associate. The Enforcement Officer must check
whether the volunteer has any relationship with any of the outlets that wil
be visited during the operation
Released
•
The enforcement process should be briefly explained including:
o  A file wil  be prepared and sent to the Ministry of Health in Wel ington.
A decision wil  be made by the Ministry on whether to issue the seller
with an Infringement Notice.
o  If the person to whom an infringement notice is issued denies liability,
the volunteer may have to attend Court as a witness.
o  If the seller has sold to a minor on previous occasions, a decision may
be made to initiate a prosecution. If a decision is made to initiate a
prosecution, the file wil  be sent to the Crown Solicitor and the case wil

Smokefree Compliance and Enforcement Manual

be heard in the District Court. The sel er/owner has the opportunity to
plead either guilty or not guilty to the charge.
o  If the sel er/owner pleads not guilty, the volunteer may be required to
attend  the  District  Court  hearing  and  give  evidence.  Name
suppression wil  be sought so the media cannot report the volunteer’s
name, however name suppression cannot be guaranteed
o  If the volunteer is required to attend Court as a witness, the volunteer
and their parent(s)/guardian wil  be kept up to date with the progress
of matters leading up to the prosecution. The parent(s)/guardian and
the  volunteer  should  be  provided  with  the  Enforcement  Officer’s
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contact details so they can make contact if they have any questions
o  If  the  retailer  contacts  or  tries  to  contact  the  volunteer  before  the
Act
Court hearing, the parent(s)/guardian must inform the Enforcement
Officer immediately so that this can be reported to the Crown Solicitor
acting in the case
•
The need to have a copy of the volunteer’s birth certificate
•
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The  need  to  have  a  photograph  of  the  volunteer.  A  facial  and  full-length
photograph  wil   need  to  be  taken.  The  height  of  the  volunteer  (in
centimetres) also needs to be recorded
•
Ensure the volunteer and their parent(s)/
Official  caregiver(s) know what day and
time the volunteer wil  be col ected from home.
the
The  volunteer  wil   also  need  to  be  provided  with  food  during  the  CPO,  so  check
beforehand for any special dietary requirements.
Once  the  process  has  been
under    fuly  explained,  the  volunteer  and  their
parent(s)/guardian must complete the Volunteer Consent Form (CPO2).
Planning the CPO
The following factors need to be considered when planning a CPO:
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Timing
•
The CPO wil  need to be planned around school hours. Volunteers must not
be taken out of school
•
Up to 45 – 50 minutes should be al owed for each sale
•
The premises that are planned to be visited should be mapped out before
beginning the CPO
•
Consider  conducting  a  CPO  outside  of  school  holidays,  ie  in  the
weekends/after school.

Smokefree Compliance and Enforcement Manual

Compliance Visit
  Note: It is Ministry of Health policy that all premises selected for inclusion in a
  CPO must first receive a compliance visit from an Enforcement Officer or
  Health Promoter within 6 months of the CPO is carried out. The purpose of the
visit is to ensure that the owner is aware of their legal obligations regarding
  the sale of tobacco, vaping and/or herbal smoking products to minors and to
  provide any signage or Ministry of Health pamphlets that wil  assist the owner
  with understanding these obligations.
  The compliance visit must be documented on the Compliance Inspection
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Record: Tobacco Retailer Form (CPO1) and must be included in the case file.

Act

Following  the  visit,  premises  must  be  ranked  according  to  a  risk  assessment
approach to determine which premises wil  be included in the CPO. This approach
ensures that enforcement resources are used effectively by ensuring that premises
at a higher risk of non-compliance are included in the CPO in preference to lower
risk premises.
Information

  Note:  Factors that must be considered as part of a risk assessment approach
include:
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  •
whether the premises has had previous complaints recorded against it
the
  •
whether previous warnings have been given
  •
the location of the premises eg, proximity to schools; level of
under

deprivation
•
the time elapsed since the last CPO.

The Day of the CPO
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Equipment
•
An unmarked car
•
A list of premises to be visited and their addresses
•
A street map or GPS
•
Two photographs of the volunteer taken on the day of the CPO. If wearing a
mask, take photos with and without the mask.
•
Money for purchases

Smokefree Compliance and Enforcement Manual

•
Money for food and other incidentals
•
Evidence bags. Self-sealing plastic bags make the most effective evidence
bags. They can be sealed instantly so that none of the change is lost. Self-
sealing, clear plastic bags are available from supermarkets
•
Evidence  labels.  A  stack  of  evidence  labels  containing  the  following
information should be kept. Some of this information can be pre-printed for
easy use during the operation:
o
what was purchased (ie a packet of Holiday 20s)
o
where it was purchased from
o
exact time and date that evidence was put into bag
1982
o
who the evidence was given to, ie received by J Smith
Act
o
name of the purchasing volunteer
o
the amount of change in the bag.
•
A cel  phone
•
A  clipboard  and  pen.  It  is  extremely  important  that  the  CPO  forms  are
completed as soon as there has been a sale and a clipboard is useful to
Information
write on in the car
•
A good supply of the following hard copy/paper forms:
o  CPO4 - Volunteer Controlled Purchase Operation Notes
Official
o  CPO5 - Interview Under Caution
the
•
A notebook (preferably a hardback A4 ruled lecture book)
•
Instrument  of  Appointment  and  Ministry  of  Health  photographic
identification.  under
The Volunteer
•
Take  two  photographs  of  the  volunteer.  One  photograph  should  be  ful
length  to  portray  the  volunteer’s  relative  height  against  a  doorframe  or
similar  referenc
Released  e point, and one ‘head and shoulders’ shot that clearly
reveals  the  volunteer’s  face  to  give  an  accurate  representation  of  the
volunteer’s appearance at the time of the CPO
•
The photographs of the volunteer should be secured in a plastic sleeve. The
name of the volunteer must not be written on the photographs or the sleeve
until  after the  CPO  is completed  as the  retailer  may  see the name of the
volunteer when they are shown the photograph

Smokefree Compliance and Enforcement Manual

•
The time, date and the place where the photograph was taken and who took
the photo must be recorded. The photographs wil  need to be taken along
on the day of the CPO
•
The volunteer’s height should be measured by the same Enforcement Officer
who  took  the  volunteer’s  photographs,  and  recorded  in  the  Enforcement
Officer’s notebook
•
A copy of the volunteer’s birth certificate must be obtained
•
The volunteer must read and sign the Volunteer Information Form (CPO3).
Check  with  the  volunteer  that  they  understand  what  is  required  of  them
during the CPO
1982
•
Spend time going over the Volunteer Controlled Purchase Operation Notes
(CPO4) with the volunteer – their observations wil  be crucial to a
Act  successful
prosecution. It should be explained that this is the level of detail that they wil
need to remember and record. Consider conducting a ‘test run’ in a store
where  there  is  no  attempt  to  purchase.  This  may  also  ‘fine-tune’  the
volunteer’s  observation  skil s.  The  volunteer  should  write  down  as  much
detail as possible
Information
•
Make sure the volunteer is not carrying any identification.
Visiting Retail Premises Official
•
Proceed to the first premises to be tested. Where practicable, park the car
within sight of the entrance of
the each premises visited, so that the volunteer is
in view for as long as possible. Do not park directly outside, or where the shop
attendant can easily see the volunteer return to you.
under
•
Write  the  time  of  arrival  at  the  premises,  together  with  the  date  and  the
name of the premises
•
Give the volunteer the final instructions and the money for the attempted
purchase. Confirm with the volunteer exactly what they wil  say when asking
Released
for cigarettes, vape product or a herbal smoking product:
ie ‘Can I please have a packet of Horizon 20’s?’
•
If the volunteer is purchasing cigarettes, discuss with them whether they are
to ask for menthol or filter cigarettes
•
If the volunteer is purchasing vapes, discuss with them what flavour they wil
ask  for.  (Bear  in  mind  whether  the  premises  is  a  SVR  when  considering
flavours.)

Smokefree Compliance and Enforcement Manual

•
Discuss with the volunteer exactly how much the cigarettes, vape or herbal
smoking product wil  cost
•
Remind the volunteer that only tobacco, vapes or herbal smoking products
are to be purchased
•
Remind the volunteer to tel  the truth about their age if asked. If the retailer
stil  continues with the sale, they are to buy the products
•
If another person in the shop tells the volunteer that it is il egal to buy
cigarettes/vape/herbal smoking products (such as another staff member
or a member of the public) the volunteer should leave the shop
immediately
1982
•
Tell the volunteer that they may be asked the following questions, and that
these are the correct answers:
Act
Q. Do you know that you have to be 18 to buy cigarettes/herbal smoking
products?
A.  Yes.
Q. Do you know how old you have to be to buy cigarettes/vape/herbal
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smoking products?
A.  Yes. 18.
Q. How old are you?
Official
A.  14 – 17 (truthful answer)
the
Q.  Are you buying cigarettes/vapes/herbal smoking product for anyone
else (ie parent)?
A.  No.
under
Q. Are the cigarettes/vape/herbal smoking product for you?
A.  Yes.
*  I don’t sel  Horizon 20s
A.  Then can
Released  I have (different brand name) please.
If the volunteer does not feel comfortable with giving these answers, their
continued participation in the CPO should be reassessed.
•
The volunteer should aim to buy from the person who appears to be in
charge of the shop, either the owner or a person who appears to be over
the age of 17. If there is more than one person behind the counter, the
volunteer should direct the sale to the person who is not a child or young
person. If there is only a child or young person serving in the shop, the

Smokefree Compliance and Enforcement Manual

volunteer should not try to buy cigarettes or herbal smoking products from
this person
•
The volunteer should be shown the Volunteer Control ed Purchase
Operation Notes (CPO4) to remind the volunteer what they should be
looking for while they are in the shop
•
Reassure the volunteer that if they no longer want to continue, the CPO wil
end, and their efforts would have been appreciated.
No Sale
If no sale takes place the volunteer wil  return to the car, retain the money for the
purchase, and repeat the process at the next shop.
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Where a Sale is Made
Act
The volunteer should return to the car immediately. The cigarettes, vape or herbal
smoking  product  must  be  handed  over  to  the  Enforcement  Officer,  who  wil
complete an evidence label and put the change and the cigarettes in a plastic
evidence bag. The time and date the evidence was received must be recorded.
The volunteer must then complete the Volunteer Controlled Pur
Information chase Operation
Notes (CPO4). The volunteer’s description of the sel er should be written down and
the sel er’s description should be verified with the volunteer before the Enforcement
Officer enters the premises.
Official
Interviewing the Seller and
the
Owner
The volunteer must stay in the car while the Enforcement Officer enters the shop to
interview the sel er. The volunteer must be accompanied at all times by the other
under
staff member while left in the car – although the person who remains in the car
does  not  need  to  be  an  enforcement  officer.  There  have  been  instances  where
angry  retailers  have  followed  Enforcement  Officers  out  of  the  shop  and  tried  to
speak to the volunteer.
Released
The  photographs  of  the  volunteer  must  be  taken  into  the  shop,  along  with  the
Enforcement Officer’s Instrument of Appointment, photographic identification and
the Interview Under Caution Form (CPO5).
Upon entering the shop, the Enforcement Officer should approach and introduce
themselves to the sel er. The reason for the visit should be explained, and that the
Enforcement Officer has some questions they would like to ask.
The interview with the seller must be recorded on the Interview Under Caution -
CPO Form (CPO5). Begin the interview by asking the seller their full legal name (ie

Smokefree Compliance and Enforcement Manual

the name on their passport including middle names) and address. As Enforcement
Officers  have  a  statutory  power  under  section  s94(2)  of  the  SERPA  to  require
identifying information (ie name and address) from the sel er, it is not necessary to
issue a caution before asking the seller for their name and address.  However, a
caution must be administered before any further questions are asked. Note that
you cannot require any further information from the sel er – for example, their date
of birth.
The  sel er’s  name  and  address  may  also  be  requested  from  the  person  who
appears to be in charge under s94(2)(b).
Section 94(3) says that if an Enforcement Officer suspects that the sel er is under
1982
18 years, they must not ask for identifying information from that person unless the
person  in  charge  is  not  present,  or  the  person  in  charge  is  present
Act  , but the
Enforcement  Officer  suspects  that  the  person  in  charge  is  also  younger  than  18
years.
In addition, the enforcement officer cannot request the person in charge to provide
information if they suspect the person in charge of the place is younger than 18
Information
years.
If the sel er refuses to provide their name and address, they must be informed that
they are committing an offence and may be liable for a fine of up to $10,000.
Official
If the sel er asks for a lawyer or someone else to be present during the interview, the
the
Enforcement Officer must agree to this (see Chapter 6:  Interviews). If there is going
to be a delay, it wil  almost certainly be best to arrange another meeting time rather
than leaving the volunteer waiting in the car.
under
If it appears that the seller is having difficulty understanding the questions,  they
should be offered the services of an interpreter. If the seller would like to have an
interpreter present, the interview should cease, and the Enforcement Officer should
return to the office to arrange a suitable time to return to the premises with the
Released
interpreter.  A  friend,  family  member  or  colleague  cannot  act  as  an  interpreter
during an interview under caution.
It is Ministry of Health policy to charge both the seller and the owner in appropriate
cases. Often the seller and the owner wil  be the same person. If this is not the case,
an interview under caution must be conducted with the owner as well as the sel er.
Enforcement  Officers  should  avoid  getting  into  a  general  debate  with  retailers
about CPOs. Lead the conversation natural y along the interview, and bring it back
to the topic if things go off-track. If a retailer becomes threatening or abusive, the

Smokefree Compliance and Enforcement Manual

Enforcement Officer should leave immediately. The details of the conversation and
surrounding  circumstances  should  be  recorded  in  the  Enforcement  Officer’s
notebook. If the threat was serious, inform the police.
If the shop is particularly busy it may be appropriate to record only contact names
and come back to speak with the sel er and owner at a later time. You can ask what
time that same day they wil  be less busy, or when they can have more staff in to
support.
The seller must be shown the photograph of the volunteer and asked whether they
recognise them. The seller must not be asked how old they think the volunteer is.
The  seller  should  then  be  told  how  old  the  volunteer  is,  and  that  they  have  just
1982
purchased cigarettes, vape or a herbal smoking product from their shop.
Act
If at any point during the interview, the seller states that they are under the age of
17 years, the interview must cease immediately. It is not Ministry of Health policy to
prosecute children and young people. They are not to be interviewed. However, the
owner should stil  be interviewed as they may be prosecuted.
The following flowchart outlines the sequence of, and the questions that must:
Information
I.
be put to the seller; and
II.
if the seller has had no training, the owner.
Official
If the sel er is not the owner and the sel er states that they have received training
the
on the sale of cigarettes, vape or herbal smoking products to persons under the
age of 18, there is no need to interview the owner (Refer flowchart and questions on
the following pages). under
If the sel er states that they have not received training on the sale of cigarettes,
vape or herbal smoking product to persons under the age of 18, the owner must
also be interviewed in addition to the sel er (Refer flowchart and questions on the
following pages)
Released
Note that the colour of the boxes in the flowchart match the questions that should
be asked under each subprocess on the following page.
IN the case that the owner and the sel er are the same person, there is no need to
go further than asking the identity questions.  Training and admission of knowledge
of the offence are not elements that need to be proven.

Smokefree Compliance and Enforcement Manual

1982
Act
Information
Official
the
under
Released

Smokefree Compliance and Enforcement Manual

At the end of the interview, ask the person being interviewed if there is anything else
that  they  would  like  to  say.  Give  them  the  opportunity  to  read  and  sign  the
statement and initial any corrections. If the person refuses to sign their statement,
ask them why. Record any reason given and the fact that they have refused to sign.
If the sel er or owner requests a copy of their statement, they should be provided
with a copy.
Inform  them  that  the  file  wil   be  sent  to  the  Ministry  of  Health  for  a  decision  on
enforcement action. Give them a copy of your business card or a phone number
should they wish to contact you.
1982
Questions Asked During an Interview
Following are some questions that may be asked during the interview and some
Act
suggested responses. Remember that all questions asked by the seller or owner,
and any responses given, must be recorded.
Q.
Do I have to answer these questions?
A.
No, you are not required to answer any questions but this is your
Information
opportunity to explain what happened and make any comments.

Q.
Wil  I be fined/charged?  Official
A.
That is not my decision. I wil  complete the file and send it to the
Ministry of Health for their decision.
the

Q.
But your volunteer told me that they were 18.
under
A.
Our volunteer was instructed to tel  you their real age if asked.

Q.
You tricked me.
A.
There was no attempt to trick you. Had you asked our volunteer their
Released
age, they would have told you. There was no entrapment.

Q.
Can my lawyer be here when you talk to me?
A.
Certainly. If there is going to be a delay before they are available then,
perhaps we could organise a time to meet later.

Q.
Can I see the volunteer?

Smokefree Compliance and Enforcement Manual

A.
No, but you can look at the photograph. Their date of birth is (month
and year only).

At the conclusion of the CPO the volunteer must be taken home or returned to their
guardian.  The  Enforcement  Officer  should  give  the  volunteer’s  guardian(s)  a
debrief on the day and what the volunteer was involved in, including any issues the
volunteer  dealt  with,  such  as  an  angry  retailer.  Explain  that  the  files  wil   be
completed and sent to the Ministry of Health for a decision as to whether or not to
issue an Infringement Notice or prosecute.
Back at the Office
1982
Ensure  that  al   evidence  is  securely  locked  away  and  complete  the  Chain  of
Act
Custody Form.
Send a letter to the seller and the owner (or just the seller if the seller and owner are
the same person) advising of the CPO and the sale to the volunteer.
Send out no sale letters to those premises that did not sell tobacco products to the
volunteer (CPO6).
Information
A final check should be made to ensure that al  notebook entries are complete and
all relevant information and forms have been placed on the case file.
Official
CPO Infringement File
the
As a result of the 2011 amendments to the SERPA, an Infringement Notice scheme
was  introduced.  The  scheme  is  considered  much  more  efficient  to  deal  with
persons  who  sel   tobacco,  vape  or  herbal  smoking  products  than  by  way  of
under
prosecution via the District Court.
Infringement fees are not imposed by the Court so they are set at a lower level.
Infringement  fees  are  generally  between  10%  and  20%  of  the  maximum  penalty
available to the Court. The infringement fee for selling a regulated product $500 for
Released
both a body corporate and an individual.
A prosecution wil  be initiated only in limited circumstances. This may include where
a person has been issued with two Infringement Notices for sel ing a tobacco or
vaping product.
Documents that must be included as part of a CPO Infringement File are:
•
Infringement File Cover Sheet (CPO8)
•
Certificate of Incorporation (If applicable)

Smokefree Compliance and Enforcement Manual

•
Incident Report (CPO9)
•
Notebook Entries
•
Interview Under Caution (CPO5)
•
Volunteer Control ed Purchase Operation Notes (CPO4)
•
Photographs of volunteer
•
Copy of volunteer’s birth certificate.
A  copy  of  the  entire  CPO  Infringement  File  must  be  scanned  and  emailed  to
[email address]  and  cc  in  [email address]  and
1982
[email address].
Act
CPO Prosecution File
Where a person has been issued with previous Infringement Notices for selling a
regulated product and has subsequently sold a tobacco, vaping or herbal smoking
product to a minor, a prosecution via the District Court may be  the appropriate
course of action.
Information
Where a prosecution is recommended, an Enforcement Officer must record this on
the Incident Report (CPO9) and clearly state the reasons for the recommendation.
Official
Other reasons for recommending a prosecution include (but are not limited to) the
following:
the
•
The person has previously been convicted of selling a tobacco product to a
minor
under
•
The person has a history of non-compliance with public health legislation (ie
selling regulated products to minors).
Health  Legal  wil   decide  on  whether  or  not  prosecution  proceedings  should  be
initiated,  taking  into  account  the  contents  of  the  CPO  Infringement  File  and  the
Released
Enforcement Officer’s recommendation as well as the Prosecution Policy and the
Solicitor-General’s Prosecution Guidelines.
Where  a  decision  is  made  to  prosecute,  a  Caption  Sheet,  Evidence  List  and  a
Summary of Facts must be drafted. The Prosecution File Cover Sheet (CPO12) must
be  completed  and  together  with  the  together  with  the  documents  listed  in  the
Prosecution File Cover Sheet (CPO 12), be emailed to Health Legal at the Ministry of
Health at [email address] and cc in [email address]
and [email address].

Smokefree Compliance and Enforcement Manual

A prosecution must be taken within 1 year of the offence and is initiated with the
filing of a Charging Document Information (See Chapter 3: Powers of Enforcement
Officers).
District Court prosecutions can be taken against:
•
The owner of the shop that sold the regulated product to the volunteer
•
The seller – ie the person who sold the regulated product to the volunteer.
The Volunteer and the Court Process
•
It is not the Ministry of Health’s policy to insist that an unwil ing volunteer give
evidence if they decide after the CPO that they do not want to attend Court.
1982
The likelihood of this occurring can be minimised by carefully preparing and
supporting the volunteer.
Act
•
Under disclosure, the defence is entitled to al  documents relating to the CPO.
This  means  that  the  name  of  the  volunteer  may  be  disclosed.  Parents  or
guardians of the volunteer must be made aware of this fact.
•
It is important to ensure that a volunteer who is required to give evidence is
Information
supported  by  the  Enforcement  Officer.  The  Justice  Department  has
developed  resources  to  give  young  people  some  information  about  the
Court  process.  These  resources  are  available  from  the  Ministry  of  Justice
Official
website at www.justice.govt.nz.
the
•
When  giving  evidence,  the  volunteer  wil   be  able  to  refresh  their  memory
from  the  notes  they  made  immediately  after  they  were  sold  the
cigarettes/herbal smoking product. The volunteer may be asked to identify
under
the  person  who  sold  them  the  cigarettes/vape/herbal  smoking  product.
Once the volunteer has finished giving evidence, they wil  be able to leave
the Court even though the case may not be finished.
Notebooks
Released
An Enforcement Officer’s notebook is used to:
•
Record  anything  of  significance  that  occurs  during  the  course  of  the
investigation
•
Provide a reference source for records of interviews
•
Act as a memory prompt when testifying in Court.
It is important to follow the note taking procedures carefully, to avoid doubt about
the information col ected.

Smokefree Compliance and Enforcement Manual

Evidential notebooks are particularly useful to refresh a person’s memory when
testifying in Court. General y, it takes 6 to 9 months to have a matter heard in the
District Court, sometimes longer. It is therefore important that every notebook entry
is completed correctly and with as much relevant information as possible. Entries
should be neat, accurate and complete.
For further information on the formal requirements for notebooks and notebook
entries, refer to Chapter 8: Notebooks.

1982

Act

Information
Official
the
under
Released

Smokefree Compliance and Enforcement Manual

Procedure

1.0
Planning the CPO
1.1  Prepare a list of premises to be visited using a risk assessment approach.
1.2  Plan the CPO around school hours.
2.0  Volunteer Selection and Briefing
2.1
Short-list  a  pool  of  prospective  volunteers  aged  between  14  and  17
years.
2.2
Obtain  the  consent  of  the  parent/caregiver  of  the  volunteer  before
approaching the volunteer.
1982
2.3
Meet  with  the  volunteer  and  their  parent/caregiver  to  discuss  all
Act
aspects of the CPO including:
2.3.1
The importance of being able to identify the seller.
2.3.2
The procedure for the day.
2.3.3
The fact that the volunteer wil  be expected to tel  the truth about
Information
their age if asked.
2.3.4
The need for confidentiality.
Official
2.3.5
The CPO Volunteer Notes (CPO4).
2.3.6
the

The prosecution process.
2.4  Inform  the  volunteer  that  they  are  to  dress  in  normal  clothing  and
avoid  appearing  older  than  they  are  ie  by  wearing  make-up  or
under
obscuring their features with a hat or beanie.
2.5  Ask  the  volunteer  and  their  parent/caregiver  to  read  and  sign  the
Volunteer Consent Form (CPO2).
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2.6 Obtain a certified copy of the volunteer’s birth certificate.
3.0  The Day of the CPO
3.1
Check  with  the  volunteer  that  they  understand  what  is  required  of
them during the CPO.
3.2
Provide the volunteer with a list of premises to be visited during the
CPO to check that they have no relationship with any of the outlets
that wil  be visited during the CPO.
3.3
Go through the Volunteer Information Form (CPO3) with the volunteer.

Smokefree Compliance and Enforcement Manual

3.4  Ask  the  volunteer  to  read  and  sign  the  Volunteer  Information  Form
(CPO3).
3.5  Take  a  ful   length  and  “head  and  shoulders”  photograph  of  the
volunteer.
3.6  Record  the  time,  date  and  the  place  where  the  photographs  were
taken and who took the photographs.
3.7  Do not record the volunteer’s name or details on the photographs.
3.8 Secure the photographs of the volunteer in a plastic sleeve.
3.9
1982
Measure and record the volunteer’s height in centimetres.
3.10  Make sure the volunteer is not carrying any identification.
Act
4.0  Visiting Retail Premises
4.1
Use an unmarked car where possible.
4.2  Ensure  that  at  least  two  adults  accompany  the  volunteer  on  car
journeys to CPO locations.
Information
4.3  Ensure that at least one adult stays in the car with the volunteer at all
times.
4.4
Official

Wherever possible, avoid the need for the volunteer to cross a busy
road.
the
4.5  Where practicable, park the car within sight of the entrance of each
premises visited, so that the volunteer is in view for as long as possible.
under
4.6  On arrival at the first premises, record the date, time of arrival at the
premises together with the name of the premises.
4.7
Give  the  volunteer  the  final  instructions  and  the  money  for  the
attempted purchase.
Released
4.8  Ask  the  volunteer  to  confirm  what  they  wil   say  when  asking  for
cigarettes, vapes or a herbal smoking product.
4.9  If  the  volunteer  is  purchasing  cigarettes,  tell  the  volunteer  whether
they are to ask for menthol or filter cigarettes.
4.10  If purchasing vapes, tell the volunteer what flavour to ask for.

Smokefree Compliance and Enforcement Manual

4.11  Tell the volunteer how much the cigarettes, vape or herbal smoking
product wil  likely cost. Research this beforehand, so you can give the
volunteer enough cash.
4.12  Remind  the  volunteer  that  only  tobacco,  vaping  or  herbal  smoking
products are to be purchased.
4.13  Remind the volunteer to tel  the truth about their age if asked.
4.14  Inform  the  volunteer  that  if  there  is  only  a  child  or  young  person
serving  in  the  shop,  they  should  not  try  to  buy  cigarettes  or  herbal
smoking products from this person.
1982
4.15  Inform  the  volunteer  that  if  another  person  in  the  shop  tells  the
volunteer  that  it  is  il egal  to  buy  cigarettes/vaping/herb
Act al smoking
products (such as another staff member or a member of the public)
the volunteer should leave the shop immediately.
5.0  No sale
5.1
If no sale takes place the volunteer must return to the car, retain the
Information
money for the purchase, and repeat the process at the next premises.
The volunteer does not get to keep the leftover cash.
6.0  Sale
Official
6.1
Following a sale, the volunteer must return to the car immediately and
hand over the cigarettes, vape or herbal smoking product.
the
6.2
Place the product in a plastic exhibit bag
6.3  Complete the exhibit label.
under
6.4
Complete the Volunteer Control ed Purchase Operation Notes (CPO4).
6.5  Verify  the  volunteer’s  description  of  the  seller  before  entering  the
premises.
Released
6.6  Ensure that an adult stays in the car with the volunteer at al  times.
7.0  Interviewing the Sel er and Owner
7.1
The volunteer must stay in the car while the interview(s) take place.
7.2
Take  the  photographs  of  the  volunteer  into  the  shop,  along  with
Instrument  of  Appointment,  photographic  identification  and  the
Interview Under Caution – CPO Form (CPO5).
7.3
Upon entering the shop, approach and introduce yourself to the seller.

Smokefree Compliance and Enforcement Manual

7.4
State  the  reason  for  your  visit  and  explain  that  you  have  some
questions you would like to ask.
7.5
Produce  your  Instrument  of  Appointment  and  photographic
identification.
7.6
Record the interview with the seller on the Interview Under Caution -
CPO Form (CPO5).
7.7
Commence the interview by asking the sel er their name and address.
7.8
Administer the caution after the sel er has provided their name and
address and before any further questions are asked.
1982
7.9
If the seller appears younger than 18 years, do not ask the sel er for
Act
their name and address unless the person in charge is not present.
7.10  If the seller refuses to provide their name and address, inform them
that by refusing to do so, they are committing an offence and may be
liable for a fine of up to $10,000.
7.11
Information

If the shop is particularly busy, record contact details only and arrange
to speak with the seller and the owner at a more convenient time.
7.12  If the owner is present, interview the sel er in a private place.  The seller
Official
should not be interviewed in the presence of the owner.
7.13
the

If at any point during the interview, the sel er states they are under the
age of 17 years, the interview must cease immediately.
7.14  If the sel er asks for a lawyer or someone else to be present during the
under
interview, this must be agreed to.
7.15  If it appears the sel er is having difficulty understanding the questions,
they must be offered the services of an interpreter.
Released
7.16  If  the  sel er  would  like  to  have  an  interpreter  present,  the  interview
must  cease  and  a  suitable  time  to  return  to  the  premises  with  an
interpreter must be agreed to.
7.17  Show the sel er the photograph of the volunteer and asked whether
they recognise the volunteer.
7.18  Inform the seller how old the volunteer is, and that they have just
purchased cigarettes, vape or a herbal smoking product from their
shop.

Smokefree Compliance and Enforcement Manual

7.19  If the volunteer was not asked their age by the seller, this should be
noted.
7.20  If the seller or owner refuses to sign their statement, they should be
asked for the reason why.
7.21  Any reason given by the sel er or owner for refusing to sign their
statement must be recorded.
7.22  If the seller or owner requests a copy of their statement, they should
be provided with a copy as soon as possible.
7.23  The seller or owner must be informed that a case file wil  be sent to
1982
the Ministry of Health for a decision on enforcement action.
Act
8.0  Post CPO
8.1
All evidence must be securely locked away and the Chain of Custody
Form completed.
8.2
An acknowledgement letter should be sent to those premises that did
not sel  to the volunteer (CPO6).  Information
8.3
The volunteer must be reimbursed for their time. The amount of any
payment must be at least commensurate with the minimum youth
wage.
Official
8.4
A final check should be carried out to ensure that all notebook entries
the
are complete and that all relevant information and forms have been
placed on the case file.
under
9.0  The CPO Infringement File
9.1
The following forms must be completed and included as part of the
Infringement file:
9.1.1  Infringement File Cover Sheet (CPO8).
Released
9.1.2  Certificate of Incorporation (if applicable).
9.1.3  Incident Report (CPO9).
9.1.4  Notebook entries.
9.1.5  Interview Under Caution – CPO (CPO5).
9.1.6  Volunteer Control ed Purchase Operation Notes (CPO4).
9.1.7  Photographs of volunteer.

Smokefree Compliance and Enforcement Manual

9.1.8  Copy of volunteer’s birth certificate.
9.2  A photocopy of the entire file must be emailed to Health Legal at the
Ministry  of  Health:  [email address]  and  cc  in
[email address] and [email address].
9.3  The original file must be retained by the Public Health Service.
10.0  The Prosecution File
10.1  Where a decision is made to prosecute, a Caption Sheet, Evidence List
and a Summary of Facts must be drafted.
The Prosecution File Cover Sheet (CPO12) must be completed and together
1982
with the documents listed in the Prosecution File Cover Sheet (CPO 12), be
emailed  to  Health  Legal  at  the  Ministry  of  H
Act ealth  at:
[email address]  and  cc  in  [email address]
and [email address].

Information

Official
the
under
Released

Smokefree Compliance and Enforcement Manual

CPO1
Appendix A - Compliance Checklist: Tobacco Retailer
A.  Retailer Details
Premises Name:


Premises address:





Phone Number:


  Person Spoken To:


1982
Owner’s Name:


  Owner’s Phone Number:

Act
______________________________________________
B.  Sales to Under 18s      (Indicate with ✓ if ‘yes’ or x if ‘no’)

Information
Have all staff been trained in asking for ID?

If yes, how?  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

If no, why not?
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Official
  Are all staff aware of the implications of selling to minors?
the
  ID leaflet discussed and left with retailer?
  Infringement Notice system explained?
under
  Controlled Purchase Operations (CPOs) explained?
______________________________________________
C.  Display of Tobac
Released  co Products (Indicate with ✓ if compliant or x if non-
compliant)
  Are tobacco products visible from outside or from an area inside the premises to which
the public have access?
If yes, how? .............................................................................................................................. . . .
  No bundling of cigarettes with other products?
  No incentive or rewards offered in exchange for purchase of cigarettes?

Smokefree Compliance and Enforcement Manual

D.  Tobacco Products Price List (Indicate with ✓ if yes or x if
no)
  Does the retailer have a Tobacco Products Price List?
  Does it comply with the formatting requirements?
  Is the list kept out of sight?
______________________________________________
1982
E.  E-cigarettes (Indicate with ✓ if yes or x if no)
Act
  Does the retailer sel  e-cigarettes?
  Is the retailer aware of the regulation of e-cigarettes under the Medicines Act 1981?
  Are any therapeutic claims made?
(If yes, must be removed from sale –



Information   Medicines Act 1981)
  Toy Tobacco Product?
(Sales to under 18s prohibited).
______________________________________________
Official
F.  Resources provided      (Indicate with ✓ resources provided)
the
  Sale and Supply of Smoking Products to Under 18’s
under
  E-cigarettes Fact Sheet

E.  Comments (including further action required)



Released





Signed:   __________________________________  Date:   ________

Smokefree Compliance and Enforcement Manual

CPO
Appendix B - Volunteer Consent Form
2
1.
Parent/Caregiver Section:
(a)  My ful  name is ________________________________________

and I am the parent/caregiver of ___________________________
(b)  The procedure for the Controlled Purchase Operation has been explained to
me by ________________________________________________

and I have given my consent for __________________________
1982

to participate as a volunteer.
(c)
I understand that_________________________________
Act  ___ may
be required to appear as a witness in the District Court which may result in the
loss of some school time.
Signed:
___________________________________
Date:
___________________________________
Information
Time:
___________________________________
Place:
___________________________________
Official
2.
Volunteer Section:
the
(a)  My ful  name is________________________________ and my date
of birth is _________________
under
(b)  I have had the procedure for the Controlled Purchase Operation explained
to me by
__________________________________________________and I
am volunteering to assist in this operation.
Released

Signed:
___________________________________
Date:
___________________________________
Time:
___________________________________
Place:
___________________________________
Witnessed:  ___________________________________

Smokefree Compliance and Enforcement Manual

CPO
Appendix C - Volunteer Information Form
3
(To be completed prior to the commencement of the Controlled Purchase
Operation)

Thank you for your interest in being involved in the CPO.
You have already been verbal y briefed about what happens during a CPO and the
role of the volunteer. Please read the fol owing information and feel free to ask any
questions if anything is unclear.
•
1982

At  each  visit  you  wil   be  issued  with  cash  to  purchase
cigarettes/vaping/herbal  smoking  products.  If  you  are  sold
Act
cigarettes/vaping/herbal  smoking  products,  remember to take them  with
you when you leave the premises. As soon as you get back to the car you
must hand over the cigarettes/vaping/herbal smoking products to the CPO
supervisor, along with any change from the transaction
•
During the CPO the person serving you may ask you how old you are. If you
are asked your age, you must tel  the truth
Information
•
You must not carry any identification on the CPO. If you are asked for your ID,
you can truthfully say: “I don’t have any identification on me”
•
Official

You need to be very observant when purchasing so that you can accurately
fill out the Volunteer Controlled Purchase Operation Notes Form when you
the
return to the car. You must note who sells you the smoking products, their
appearance, and what was said. You are also required to note who else was
there (staff, other customers, etc), the general layout of the shop, and other
details
under
•
If you are asked who the cigarettes/vaping/herbal smoking products are for,
you must say they are for you
•
When asking for a packet of cigarettes, you should say something like ‘can I
have a packet
Released  of Holiday 20’s’? or ‘can I have a disposable vape in green
apple flavour’? The Enforcement Officer wil  talk you through what each store
sells, and what you can ask for at each visit.
•
If  you  are  unsure  of  what  to  do  at  any  stage,  come  back  to  the  car
immediately
•
If you are refused cigarettes/vaping/herbal smoking products, be polite and
leave the premises immediately
•
If you feel unsafe at any time, you should leave the store.

Smokefree Compliance and Enforcement Manual

•
If asked who you are with, you can give the name of the CPO supervisor and
say they are with the National Public Health Service, Te Whatu Ora.

I have read and understand the information detailed above.
Volunteer’s name ......................................................…………………………………………………….
Volunteer signature ……………………………………………………………………………………….…
Date .................................
1982
Act
Information
Official
the
under
Released

Smokefree Compliance and Enforcement Manual

CPO
Appendix D - Volunteer Controlled Purchase Operation
4
Notes
Volunteer Information
Full Name: .............................................................................................................................. . . . . .
Address      .............................................................................................................................. . . . . . .
Phone:  (home)   .......................................

Phone:  (cel )........................................ . . .
Date of birth   ...........................................

Ethnicity:   ………………………………….
1982
Height:   .....................................................
Act

Parent/Caregiver full name: ................................................................. . . . . . . . . . . . . . . . . . . . . .

Premises Information
Premises Name:
Information
Premises Address:
Premises Type (ie Dairy; Service Station; Supermarket):
Official
Internal Premises Sketch

the

under

Released

CPO
4
Description of Seller (Complete information where known)
Sex:  .....................................................

Approx. Age: ......................................................
Ethnicity:   .............................................

Circle the appropriate information, or if unsure circle ‘unknown’
Height
Tall
Short
Medium

Unknown
Build
Thin
Medium
Solid

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

Unknown
1982
Hair
Brown
Black
Blond
Ginger  Grey  Other  Unknown
Colour
Act
Hair Style  Short
Long
Collar
Other

Unknown
length
Facial
Yes/No  Moustache  Beard

Unknown
Hair
Identifying Features (spectacles/scars/tattoos/accent/jewellery/
Information  name
badge/hair style and colour)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Official
Description of Clothes   (Colour/Type)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the  ....................................
Other people selling in the shop:
Yes/No
Description:
under
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Purchase of product
Date:   ...................................

  Day:   ....................... . . . . .

Released
Time:   .............................
Brand and type (ie 20s or 25s) of cigarettes/vape/herbal smoking product
purchased:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cost:   .................................

  Change:   ...............................
Exhibit given to:   .................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Time:   ..................................

Date:   ..........................................

CPO

4
Circumstances
(Exactly what happened when you went in to the shop, who said what,
where were the cigarettes/herbal smoking products kept, was there any
‘Under 18’ signage, who else was in the shop, what did you buy, how
much was it, who did you give it to when you came out of the shop,
anything else you noticed?).

1982

Act

Information

Official

the

under

Released
Time:   .............................................................

Date:   ...................................................
Volunteer Signature:   ..............................................................................................................................

CPO

5
Appendix E - Interview Under Caution: Controlled
Purchase Operation
Person Interviewed:

Place of Interview:

Date:

Time

Time

Commenced:
Completed:

1982
Interviewing Enforcement Officer
Other Persons Present

Act

Information
Q/A

My name is …………………………………… I am an Enforcement Officer designated
under the Smokefree Environments and Regulated Products 1990 and I
Official
am acting under the direction of the Ministry of Health. Here is my
identification and my Inst
the rument of Appointment identifying myself as
an Enforcement Officer (show photographic identification and
Instrument of Appointment).
under
I am investigating ………………………………………………………………………………. and I would like
to ask you some questions in connection with my investigation. I wil be
writing down both my questions and your answers to those questions.
I now require you pursuant to section 41B of the Smokefree
Environments and Regulated Products 1990 to give me your full name
Released
and residential address.

What is your full name?

What is your residential address?

Signature:
Signature witnessed by:
Page ___ of ____

1982
Act
Information
Official
the
under
Released

Q/A

You need to understand that you are not required to answer any
further questions but that anything you say may later be used as
evidence.

You may if you wish have a lawyer present during this interview to
assist you.

(Delete if lawyer present).

1982
Do you understand what I have told you?
Act

Are you wil ing for the interview to now continue?

Information

What is your date of birth?

Official

What is your occupation?
the

What are your cont
under act phone numbers?

What is your email address?
Released

Signature:
Signature witnessed by:
Page ___ of ____

Q/A

1982

Act

Information

Official

the

under

Released

Signature:
Signature witnessed by:
Page ___ of ____

Q/A

1982

Act

Information

Official

the

under

Released
Signature:
Signature witnessed by:
Page ___ of ____

CPO

6
Appendix F - Letter to Retailer: No Sale
Date

[Address]

Dear Sir/Madam
Smokefree Environments and Regulated Products Act 1990
1982
Your premises was visited by an Enforcement Officer acting under the authority of the
Act
Director-General of Health on [insert relevant date] as part of a Controlled Purchase
Operation.  The  purpose  of  a  Controlled  Purchase  Operation  is  to  assess  retailer
compliance  with  section  40(1)  of  the  Smokefree  Environments  and  Regulated
Products 1990.
I am pleased to inform you that of the [number of premises visite
Information d] premises visited
during this period, you were amongst the [enter number] premises that did not sel
[tobacco/herbal smoking/vaping] to a person under the age of 18 years.
Official
Enforcement  Officers  wil   continue  to  check  tobacco,  vaping  and  herbal  smoking
product  retailers  for  compliance  with  the  Smokefree  Environments  and  Regulated
the
Products. The Act states that it is il egal to sell tobacco, vaping and herbal smoking
products to persons under 18 years of age so please ensure that both you and your
staff remain familiar with the lega
under  l requirements for the sale of tobacco, vaping and
herbal smoking products to underage persons; and that your staff understand what
it is they are required to do should a young person attempt to purchase  tobacco,
vaping and herbal smoking products.
The sale of tobacco,
Released vaping and herbal smoking products to minors is viewed very
seriously  and  it  is  the  Te  Whatu  Ora  –  Health  New  Zealand’s  policy  to  either
recommend issuing an Infringement Notice or prosecute in appropriate cases. 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 (ie company) or $5,000 in the case of an
individual.

Yours sincerely

CPO
7
Appendix G - Letter to Retailer: Sale by Employee
Date

[Address]

1982
Act
Information
Official
the
under
Released

Dear Sir/Madam
Smokefree Environments and Regulated Products Act 1990
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 a Controlled Purchase Operation is to assess
retailer  compliance  with  section  40  (1)  of  the  Smokefree  Environments  and
Regulated Products 1990.
During a visit on [date of visit], a shop assistant, [name], sold a packet of [brand
cigarettes/vaping  products]  to  a  [age]  year  old  volunteer.  As  a  result  of  this
incident,  the  matter  wil   be  referred  to  the  Ministry  of  Health  and  it  is  likely  an
1982
Infringement Notice wil  be issued against [name]. The infringement fee for sel ing
a tobacco product to a person under 18 is $500.
Act
On  this occasion  no  further  action  wil   be  taken  against  you  as the shop  owner
however Enforcement Officers wil  continue to visit premises to monitor compliance
with the Act. Please ensure that both you and your staff are fully familiar with the
requirements of the Act, which govern not only the sales to under-age persons but
Information
also include prohibitions on advertising, and workplace smoking.
The sale of tobacco, vaping and herbal smoking products to minors is viewed very
seriously and it is Te Whatu Ora – Health New Zealand’s policy to either recommend
Official
issuing an Infringement Notice or prosecute in appropriate cases. In the case of a
successful  prosecution,  the  maximum  fine  that  can  be  ordered  by  the  court  is
the
$10,000 in the case of a body corporate (ie company) or $5,000 in the case of an
individual.
under

Yours sincerely

Released

CPO
Appendix H - Infringement File Cover Sheet
8
From:

   [Officer name]
Date:

                                         [Public Health Unit]

                                         [email]

                                         [contact phone number(s)]
RE:

(Tick as appropriate)
1982

Act

Short Form File Cover Sheet

Certificate of Incorporation (if applicable)

Incident Report
Information

Notebook Entries

Interview Under Caution
Official
the

Volunteer Control ed Purchase Operation Notes

Photographs of Volunteer
under

Birth Certificate

Signed:

Released

Date:

EMAIL SHORT FORM FILE WITHIN 5 WORKING DAYS TO:
[email address] and cc in [email address] and
[email address].

CPO
Appendix I - Incident Report
9

INCIDENT REPORT

Smokefree Enforcement Officer:
Report Date:
Date of Education Visit:
1982
Incident Date and time: (hh:mm)
Volunteer’s Date of Birth:
Act
Seller Details
Name:
Occupation:
Date of Birth:
Address:
Phone:
Information
Owner Details - Individual
Name:
Occupation:
Date of Birth:
Official

the
Address:
Phone:

under

Owner Details - Company (*Delete if inapplicable)
Name:
Directors:
Released

Registered Office:

Incident Details
Trading name of premises:

Comments/Observations:

1982

Act

Recommendation(s)
(Include reasons for recommendations. Where prosecution is recommended provide
Information
full details of previous complaints/convictions. Where prosecution is not recommended,
provide reasons for this)

Official

the

under

Released

CPO
Appendix J - Caption Sheet
10

Ministry of Health  v
Name:

Address:


1982

Occupation:
Act

Charge:
Information
1
Section 40(1) Smokefree Environments and Regulated Products 1990.
On [date] at [place], [defendant’s name] did sel  a tobacco product,
namely [name of tobacco product], to a person who had not attained the
age of 18 years.
Official
Penalty:
the
2
Section 40(2) Smokefree Environments and Regulated Products 1990.
A person who contravenes subsection (1)(a) or (b) commits an offence
under
and is liable to a fine not exceeding $5,000 (individual) or $10,000 (body
corporate).

Released

Witnesses:

Evidence:

1.
[Name of volunteer]

Purchase of tobacco product

Controlled Purchase Operation volunteer

2.
[Name of Enforcement Officer]
Exhibit Collection

Enforcement Officer

[Public Health Unit]

3.
[Name of Enforcement Officer]
Photographs of volunteer 1982

Enforcement Officer

[Public Health Unit]

Act

4.
[Name of Enforcement Officer]
Interview with defendant

Enforcement Officer

[Public Health Unit]

Information

Evidence:

Official

Produced by:
1 x pack [name of tobacco product]
the
[Name of Enforcement Officer]
and [ $ ] change
Enforcement Officer

[Public Health Unit]
under

Photographs of [name of volunteer]
[Name of Enforcement Officer]

Controlled Purchase Operation volunteer
Enforcement Officer

taken on [date photographs taken]
[Public Health Unit]

Released

Birth Certificate of Volunteer
[Name of parent]
Mother (or father) of Controlled
Purchase Operation volunteer

CPO
11
Appendix K - Summary of Facts
Introduction
1.
Young people in New Zealand continue to become addicted to nicotine at
an  age  when  many  do  not  realise  the  ful   consequences  of  smoking.  On
average, most  New  Zealand  youth  aged  15-19 years  start smoking  at  14.6
years of age and almost 72% would not smoke if they had their lives over
again.  Almost  three-quarters  of  youth  in  this  age  group  purchase  their
cigarettes themselves.
2.
By  the  time  these  young  smokers  reach  an  age  where  they  would  be
1982
expected to have a greater appreciation of smoking, many have difficulty
stopping. By age 18, two thirds of New Zealand youth smokers regret starting
Act
and half have tried to quit. Studies indicate that youth smokers are especially
vulnerable  to  the  effects  of  nicotine  and  that  nicotine  addiction  may  be
heightened if smoking is initiated during adolescence.
3.
The Smokefree Environments  and Regulated Products  1990 (Act) prohibits
the sale or supply of tobacco products to youth less than 18 years of age. The
Information
Act is a means of curtailing the availability of tobacco to a demographic
group which is particularly vulnerable to initiation of smoking behaviour.
4.
The Ministry of Health routinely conducts Control ed Purchase Operations to
Official
test retailer compliance with the prohibition on sel ing tobacco products to
minors. Retailers who sell tobacco products to minors are liable to a fine up
the
to  $5,000  in  the  case  of  an  individual  and  $10,000  in  the  case  of  a  body
corporate. In addition, retailers who have at least two convictions for sel ing
tobacco products to a person under 18 within a two year period may also be
under
prohibited from sel ing tobacco products for up to three months.
The present case
5.
On [insert date(s)] the Ministry of Health conducted an Under-18 Controlled
Purchase  Oper
Released ation for tobacco products in the [region] using an [age]
year old [male/female] volunteer.
6.
The  purpose  of  the  operation  was  to  determine  the  compliance  of  retail
premises with regard to section 30(1) of the  Smokefree Environments and
Regulated Products 1990.
7.
Between  [start  time]  and  [finish  time]  on  the  [date]  [number]  retail
outlets in the      [      ] region were visited by the volunteer. [Number] retail
outlets sold tobacco products to the volunteer.

8.
The volunteer was born on the [date of birth] and was [age] at the time of
the  purchase.  They  were  wearing  casual  clothing,  namely  [describe
clothing worn by volunteer].
9.
At  approximately  [time]  on  [date],  the  volunteer  entered  the  [name  of
premises]  situated  at  [address of premises]  and  requested  a  packet  of
[name of tobacco product] from the defendant, [name of defendant].
10.
The defendant sold a packet of [name of tobacco product] to the volunteer.
11.
The volunteer paid for the cigarettes with a [ $ ] note and was given [ $ ]
change.
12.
During the transaction the volunteer was not asked their age [*delete if not
1982
applicable].
Act
13.
The  volunteer  returned  to  the  car  and  described  the  defendant  to  the
Enforcement Officer.
14.
At  approximately  [insert  time]  on  the  same  day,  an  Enforcement  Officer
entered the [name of premises] and spoke to the defendant.
15.
The  Enforcement  Officer  showed  a  photograph  of  the  volunteer  to  the
Information
defendant. The defendant stated that [            ].
16.
The defendant confirmed that they had been told by the owners of [insert
name of premises] that they could not sel  cigarettes to persons under 18
Official
[*delete if inapplicable]. the
17.
A sign was displayed in the shop stating that cigarettes could not be sold to
persons under 18 [*delete if inapplicable].
under
18.
The defendant [has/has not] previously appeared.
19.
A fee of $130 is sought.
Penalty
Released
A maximum fine of $5,000.

Smokefree Compliance and Enforcement Manual

CPO
Appendix L - Prosecution File Cover Sheet
12

To:

Tobacco Control Team

Ministry of Health

From:
_______________________________________________________
Te Whatu Ora:
1982
____________________________________________________
Date:
Act
_______________________________________________________
Re:

Information
(Tick or insert N/A as appropriate)

Prosecution File Cover Sheet (CPO12)

Summary of Facts (CPO11)  Official

Caption Sheet; Witness/Exhibit Lists (CPO10)

Photocopy/transcript of notebook entries
the

Confirmation of Trading Name/Ownership

Interview Under Caution (CPO5)

Volunteer Control ed Purchase Operation Notes (CPO4)
under

Copy of photo of Evidence/Evidence has been photocopied,
labelled and secured

Copy of photograph of Volunteer attached

Photocopy of birth certificate

Volunteer Information Form (CPO3)
Released

Volunteer Consent Form (CPO2)

Compliance Inspection Record: Tobacco Retailer (CPO1)

Copy of designation

Original file retained at PHU

Signed:

Date: