The Control of Tobacco Product (Amendment) Regulations 2018 [P.U.(A) 329/2018] (the 2018 Regulations) will come into force on 1 January 2019. The 2018 Regulations will bring into force a wide prohibition of smoking in an “eating place”.
Wide Definition of Eating Place: No Smoking Three Metres from Any Such Area
The term “eating place” is widely defined. It means any premises whether inside or outside building, where food is prepared, served or sold and includes (which means the following are not the only situations that apply):
- any room or area on a ship or train where food is prepared, served or sold.
- any area on a vehicle where food is prepared, served or sold, and any surrounding area within a radius of three metres from the vehicle.
- any area within a radius of three metres from any table or chair which is placed for the purposes of preparing, serving or selling food.
The above would mean that for food trucks, as they move around and serve different areas, people must be aware that they now cannot smoke within a three-metre range. We also have mamaks or restaurants that extend their chairs beyond the shop area and into walkways or the roads. That would also mean the prohibition of smoking in the three-metre range from any such table or chair. Of course, smoking at the mamak itself would also now fall foul of these new amended regulations.
The 2018 Regulations are merely amending and substituting this wider definition of eating place. The 2018 Regulations build on the present Control of Tobacco Product Regulations 2004 [P.U.(A) 324/2004] (2004 Regulations). Reading both the 2004 Regulations and the 2018 Regulations together:
Regulation 11 sets out the complete prohibition on smoking at certain places. The penalties are still maintained.
A person who breaches Regulation 11 (and now with the added prohibition of smoking at an eating place) can face a criminal conviction and a fine not exceeding RM10,000 or to imprisonment for a term not exceeding two years.
Regulation 12 spells out the duty on the person who owns or occupies the premises or the vehicle and to try to prevent smoking.
Firstly, the person must display a sign at a clear part of the premise or vehicle to set out the prohibition of smoking. If the person fails to do this, this can lead to a criminal conviction with a fine not exceeding RM3,000 or to imprisonment for a term not exceeding six months.
Secondly, the person must ensure that no person smokes in the premise or vehicle. This must now be read along with the three-metre range that is now imposed to all eating places. If the person fails to ensure that there is no smoking, this can lead to a criminal conviction with a fine not exceeding RM5,000 or to imprisonment for a term not exceeding one year.
[For completeness, the 2004 Regulations should be read with the subsequent amendments that continued to expand Regulation 11’s list and interpretation of the places that prohibit smoking. Some of the more recent amendments can be found on the Federal Gazette website. But they only start from the year 2012 onwards: the 2012 Regulations, the 2013 Regulations, the 2014 Regulations, the first 2015 Regulations, the second 2015 Regulations, and the 2017 Regulations.]
Defence to a Shop Owner
Nonetheless, Regulation 12(3) sets out that there can be a defence to the offence of failing to ensure no smoking. The person can show that he had taken all reasonable steps to ensure that no person smokes in the premise or vehicle.
However, I have a comment on this. Say I am an aggrieved non-smoking customer of the eating place, where smoking continues to take place. I made repeated complaints to the shop owner of the breach of this Regulation 12 and yet nothing had been done by the shop owner. Then the shop owner may find it difficult to show that he had indeed taken all reasonable steps to ensure no smoking in the premises, or within the new three-metre range.
From a New Straits Times report, there is a 24-hour hotline number of 03-88924530 which shop owners can also call for the assistance from the enforcement officers.