Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Rules 2024

The Rules deploy several transitional concepts. The central one is the “main transition period”, defined in Schedule 2 to the transitional Act (the Act that authorised these Rules). The Rules themselves do not repeat its start and end dates, so practitioners must consult that Schedule. By contrast, the “new measure transition period” is defined in section 4 of the Rules as the period from 1 April 2025 to 30 June 2025. That is a fixed, three-month window during which retailers benefit from the extended transition in section 6.

The “new Act” means the Public Health (Tobacco and Other Products) Act 2023. The “new regulations” means the Public Health (Tobacco and Other Products) Regulations 2024. The “transitional Act” means the Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Act 2023. The “old TPP Act” is the Tobacco Plain Packaging Act 2011. The Rules cross-reference these statutes extensively.

A key defined term from the new regulations is “on-product health message”. The Rules adopt that definition for their own purposes. These are the messages that must eventually be printed on cigarettes themselves under the new regime. The Rules create a voluntary early-adoption period for these messages during the main transition period, and also excuse non-display during that period for filtered cigarettes.

“Retail packaging” of tobacco products is defined in section 71 of the new Act (covering paragraphs (a) to (d) of that definition, which encompass cigarette packets, cartons and other retail containers). Section 5 applies only to that subset. The term “regulated tobacco item” captures a broader category that includes tobacco products as well as other items such as cigarette papers and filters.

The concept of pre-supply is pivotal for the extended retailer transition in section 6. The relief is available only for items that were “supplied to the retailer in retail packaging before the start of the new measure transition period”. That means stock already in the retailer’s possession as at 1 April 2025. Retailers cannot order new stock in non-compliant packaging after that date and claim the relief. The item must also be offered for sale in the same packaging in which it was supplied.

Another concept is the “equal display” obligation in the new regulations. Under section 114C of the new regulations, each on-product health message must be displayed as nearly as possible in equal numbers on cigarettes manufactured in a calendar year. Section 5A(4) provides that cigarettes manufactured during the main transition period that do not display an on-product health message are disregarded when calculating equal numbers for the 2025 calendar year. This prevents early adopters from being penalised in the counting.

The deeming provisions in sections 5(3) and 5A(2) treat packaging and cigarettes as continuing to comply with the old TPP Act for the purposes of subitems 13(2) and 14(2) of Schedule 2 to the transitional Act. These deeming mechanisms are essential because the transitional Act itself may have otherwise treated any deviation from the old Act as a compliance failure. The Rules smooth that path.

The Rules primarily affect three groups: tobacco product manufacturers, retailers of regulated tobacco items, and compliance officers within those businesses. Each group is touched at different times and under different conditions.

Manufacturers (and packers) are the main beneficiaries of sections 5 and 5A during the main transition period. Section 5 permits them to insert health promotion inserts into retail packaging even though section 23 of the old TPP Act would otherwise prohibit any addition to the packaging design. This allows manufacturers to begin using the new inserts ahead of the mandatory date at the end of the main transition period. Section 5A similarly allows manufacturers to display on-product health messages on cigarettes (including filter cigarettes) during the main transition period, overriding the old Act’s design prescription. Manufacturers who choose to do so must still ensure all other aspects of the packaging or cigarette appearance comply with the old Act.

Retailers (persons who sell regulated tobacco items by retail sale or offer them for retail sale) are the target of section 6. That section provides a three-month extended transition period from 1 April 2025 to 30 June 2025. It shields retailers from liability under eight specific provisions of the new Act for non-compliant retail packaging or regulated tobacco items, but only for stock that was supplied to the retailer in its current packaging before 1 April 2025. This is a narrow class: if a retailer received a shipment of cigarette packets on 15 March 2025 that comply with the old Act but not the new Act, the retailer can sell those packets until 30 June 2025 without contravening the new Act. However, any stock received on or after 1 April 2025 must comply with the new Act (subject to any other transitional provisions). The condition in subsection 6(2)(c) - that the retailer does not contravene subitem 15(2) of Schedule 2 to the transitional Act because of item 16 of that Schedule - links the relief to the transitional Act’s treatment of existing packaging; item 16 appears to operate a separate grandfathering mechanism that must also be satisfied. Retailers therefore need to cross-check their stock against both the Rules and the transitional Act.

Wholesalers, importers and distributors who supply to retailers are indirectly affected. Their supply obligations under the new Act are not suspended by section 6, but their retailer customers’ ability to sell non-compliant stock may affect ordering patterns. Importers might need to ensure that any stock shipped to Australia after 1 April 2025 meets the new Act requirements, because the Rules only protect retailers holding pre-existing stock.

Compliance officers and legal advisers for these businesses must track multiple overlapping transition dates: the main transition period (unknown from the Rules alone), the new measure transition period (1 April to 30 June 2025), and the mandatory end dates for health promotion inserts and on-product health messages (end of main transition period). Any failure to correctly identify which transition window applies to which product feature could result in unintended non-compliance.

The Rules do not create new duties. They create rights to deviate from existing duties during limited periods, and they impose conditions on the exercise of those rights.

Under section 5, a person is entitled (despite section 23 of the old TPP Act) to have retail packaging of tobacco products include health promotion inserts prescribed for paragraph 82(1)(a) of the new Act. This is a positive right. The condition is that the packaging must otherwise comply with section 23 of the old TPP Act as in force immediately before the commencement day (section 5(3)(b)). The right lasts only for the main transition period. After that period ends, the note to subsection (2) states that the inserts become mandatory (subject to section 6 for pre-supplied stock).

Under section 5A, a person may display on-product health messages on cigarettes during the main transition period despite section 26 of the old TPP Act. That is also a positive right. In addition, subsection 5A(3) grants a right to filtered cigarettes to omit the on-product health message entirely during the main transition period and still be taken as complying with subsections 86(2), (3) and (4) of the new Act. This is a negative right - the absence of the message is not a breach. Subsection 5A(4) grants a further right: cigarettes manufactured during the main transition period without the message are disregarded in the equal-display calculation for the 2025 calendar year. This right protects manufacturers from having to ensure equal counts of messages for those cigarettes.

Under section 6, a retailer has a right not to be held liable under eight listed provisions of the new Act for non-compliant regulated tobacco items, provided the three conditions in subsection (2) are satisfied. The conditions impose duties: the retailer must not alter the packaging after receipt (the item must be sold in the same packaging as supplied), the retailer must have received the stock before 1 April 2025, and the retailer must already satisfy the transitional Act’s requirements under item 16 of Schedule 2. Retailers also have a duty to ensure that the relief period ends on 30 June 2025. Any stock remaining after that date must comply with the new Act or be subject to the penalties in the provisions listed in subsection (3).

The deeming provisions in sections 5(3) and 5A(2) create a statutory fiction: the packaging or cigarette is taken to continue to comply with the old TPP Act for the purposes of subitems 13(2) and 14(2) of Schedule 2 to the transitional Act. This prevents those subitems from treating the inclusion of new inserts or messages as a failure to comply with the old Act, which would trigger a different set of consequences under the transitional Act. It is a form of statutory coordination.

No new duty is imposed on any person to take any action during the transition periods. The decision to insert health promotion inserts or display on-product health messages is voluntary. The relief in section 6 is also elective: a retailer could choose to remove non-compliant stock from sale before 1 April 2025 and sell only compliant stock, but the Rules permit the alternative path.

The Rules themselves do not prescribe penalties. They do not contain offence provisions or pecuniary penalty clauses. Instead, they modify the application of penalty provisions in other Acts. The penalty consequences flow from the underlying primary legislation.

Section 6 explicitly lists eight provisions of the new Act that may be contravened but for the relief. Those provisions are sections 94 (selling or supplying tobacco products in non-compliant retail packaging), 96 (possessing tobacco products in non-compliant retail packaging), 102 (selling or supplying non-compliant regulated tobacco items), 104 (possessing non-compliant regulated tobacco items), and the corresponding sections for transactions with constitutional corporations (108, 110, 116 and 118). Notably, section 6 does not list sections such as 82 (mandatory health promotion inserts) or 86 (cigarette appearance). That means the relief in section 6 only covers the listed provisions, not all possible non-compliances. A retailer who sells a cigarette packet that lacks an on-product health message after the main transition period could still face enforcement under section 86 of the new Act (as applied through the new regulations), unless another transitional provision applies.

Sections 5 and 5A operate as defences or dispensations to the old TPP Act, not the new Act. The old TPP Act had its own penalty regime (which the Rules do not describe). By permitting deviation from sections 23 and 26 of the old Act, the Rules effectively immunise a person from penalties under the old Act for those specific deviations during the main transition period.

The enforcement consequences for non-compliance with the conditions in the Rules are indirect. For example, if a retailer claims the section 6 relief but cannot prove that the item was supplied before 1 April 2025, the retailer loses the defence and becomes liable under the new Act. The burden of proving the factual conditions for relief will likely fall on the defendant in any prosecution or civil penalty proceeding.

The Rules do not create any new inspection, monitoring or information-gathering powers. Those remain in the new Act and the transitional Act. The Australian Border Force, the Therapeutic Goods Administration or state health authorities would enforce the underlying laws using their existing powers.

Although the Rules do not mention infringement notices, civil penalties or criminal penalties, the relief they provide is time-limited and conditional. A person who acts outside the scope of the conditions (for example, by inserting health promotion inserts after the main transition period without complying with the new Act) would face the full penalty exposure of the new Act. The maximum penalties under the new Act are not stated in the Rules, but lawyers advising clients should refer to the penalty provisions in the new Act, which include significant fines for corporations and individuals.

The Rules are made under the transitional Act, which itself is the vehicle for amending and transitioning from the old TPP Act to the new Act. The Rules must be read in conjunction with at least four statutes: the old TPP Act (as it was immediately before the commencement day), the new Act, the transitional Act, and the new regulations. They also reference Schedule 2 to the transitional Act, which contains detailed transitional arrangements.

The most direct interaction is with the old TPP Act. Sections 5 and 5A override specific provisions of the old Act. Section 5 dispenses with the requirement that retail packaging not include health promotion inserts (section 23). Section 5A dispenses with the prescription of cigarette appearance (section 26) by permitting on-product health messages and by deeming compliance even without them. These overrides are limited to the main transition period. After that period, the old Act will have been repealed or amended; the new Act will govern.

The interaction with the new Act is multifaceted. Section 6 provides a partial exemption from eight compliance provisions of the new Act for a defined group of retailers during the new measure transition period. But the exemption is not blanket: it only covers failures to meet “tobacco product requirements” specified in subsection (4), which are those in Division 2 of Part 4 of Schedule 2 to the transitional Act and the on-product health message requirement in the new regulations. Other requirements of the new Act, such as those on advertising, display, and information-gathering, are not covered.

The new regulations are cross-referenced in the definition of “on-product health message” and in sections 5A and 6. Section 114A of the new regulations prescribes the on-product health messages, and section 114C deals with equal display. The Rules effectively amend the operation of those regulations during transition periods: section 5A(4) modifies the counting rule in section 114C for the 2025 calendar year.

Schedule 2 to the transitional Act is the master transitional mechanism. Subitems 13(2) and 14(2) are specifically referenced in the Rules’ deeming provisions. Item 16 of Schedule 2 is incorporated by reference in subsection 6(2)(c). Practitioners must locate that Schedule to understand the full picture. The Rules do not replicate those provisions.

The Rules do not interact with state or territory tobacco laws, which remain separate. They are a Commonwealth instrument dealing only with Commonwealth regulatory aspects of tobacco packaging and appearance. They also do not interact with competition or consumer laws, except indirectly: a retailer who relies on the section 6 relief may be selling packaging that does not carry required health warnings or inserts under the new Act, but other laws (such as the Competition and Consumer Act 2010) might still impose obligations regarding product safety information.

The Rules are silent on any interaction with intellectual property or trade mark laws. The old TPP Act restricted the use of trade marks on packaging; the new Act likely contains similar provisions. The Rules do not alter that.

The Rules were made as a single instrument and commenced the day after registration, namely 5 October 2024, as indicated in the commencement table. The text of the instrument as originally made is the only version provided by the source. There is no indication of any amendment to the Rules since commencement. The note to section 2 warns that the commencement table will not be amended to reflect later amendments of the instrument.

The Rules were made under the transitional Act, which was enacted in 2023. The Rules themselves were registered in 2024, setting up transition periods that run into 2025. The absence of amendment history may be because the instrument is relatively new or because it is designed to operate for a finite period (the last transition window closes on 30 June 2025) and thus may not be amended. However, future amending instruments could extend or modify the transition periods, or add new categories of relief.

Lawyers should monitor the Federal Register of Legislation for any subsequent amending instruments. The current version appears to be as originally made. No explanatory statement or accompanying memorandum is present in the source, but usually such instruments have an explanatory statement that would be considered by a court in construing the Rules.

Section 4 defines terms that are used throughout. Any amendment that redefines a term, such as “new measure transition period” or “on-product health message”, could significantly change the scope of the relief.

The instrument’s authority is the transitional Act, which may itself be amended. An amendment to the transitional Act that alters the “main transition period” or the operation of Schedule 2 would have an indirect effect on the Rules without the Rules themselves being amended.

Because the Rules are time-limited, their amendment history may be unremarkable. The key date for users is 1 April 2025 for the start of the new measure transition period and 30 June 2025 for its end. The main transition period (defined elsewhere) will also have a specific end date. After those dates, the Rules become spent and will likely be repealed formally or simply cease to have effect.

The source contains no mention of any litigation involving the Rules. As a recently made transitional instrument, there may have been no court proceedings that have interpreted or applied its provisions by the time of the source’s creation. It is possible that the rules have been used in administrative decision-making or compliance audits, but no cases are cited.

The Rules are subordinate legislation under an Act that itself has attracted litigation in the past (the old TPP Act was challenged in the High Court in JT International SA v Commonwealth [2012] HCA 43 and other cases). The new Act and these Rules could face constitutional challenges, but no such cases are recorded in the source.

If litigation were to arise, likely issues would include the meaning of “supplied to the retailer in retail packaging before the start of the new measure transition period” (section 6(2)(a)). Questions could arise as to whether “supplied” includes a transfer from a related entity, or whether it requires a sale or can be a consignment. Also, the interaction between the three conditions in subsection (2) and the reference to item 16 of Schedule 2 to the transitional Act could be disputed.

Another possible ground for litigation is the scope of the deeming provisions in sections 5(3) and 5A(2). If a regulator takes the view that the deeming does not extend to all purposes under the transitional Act, a manufacturer might need to defend that position.

Without case law, legal advisers must interpret the Rules from their text, in the context of the new Act and the transitional Act. The absence of litigation history does not imply the Rules are free from ambiguity; it simply means no court has yet resolved those ambiguities.

Several features of the Rules are easy to misunderstand, and the first is the heavy reliance on external definitions. The “main transition period” is not stated in the Rules; you must look it up in Schedule 2 to the transitional Act. If you rely only on the Rules, you will not know when the main transition period ends, and thus when the permissions in sections 5 and 5A expire. This is a significant drafting trap.

The second gotcha is the difference between the “main transition period” and the “new measure transition period”. They are different periods serving different purposes. The main transition period applies to manufacturers for health promotion inserts and on-product messages. The new measure transition period (1 April to 30 June 2025) applies only to retailers for pre-supplied stock. A retailer who is also a manufacturer (for example, a tobacconist that repackages products) must track both periods separately.

Third, the relief in section 6 for retailers does not cover all non-compliances. It only lists eight specific provisions in subsection (3). It does not cover section 82 (mandatory health promotion inserts) or section 86 (cigarette appearance including on-product messages). That means a retailer selling a packet that lacks a health promotion insert after the main transition period may still be liable under section 82, even if the packet was pre-supplied. The section 6 relief is only for the listed packaging and possession offences; it does not touch the underlying requirement to have the insert. The note to section 5(2) suggests that from the end of the main transition period, retail packaging must include the inserts. The section 6 relief may prevent a prosecution for possessing non-compliant packaging, but the retailer might still face a separate enforcement action for failure to include the insert under section 82. This is a critical loophole.

Fourth, the condition in section 6(2)(c) - that the retailer does not contravene subitem 15(2) of Schedule 2 to the transitional Act because of item 16 of that Schedule - is dense and almost incomprehensible without the transitional Act at hand. Item 16 appears to deal with grandfathered packaging. A retailer who does not satisfy that item loses the section 6 relief entirely. Retailers must ensure they fall within item 16, or the section 6 defence is unavailable.

Fifth, the deeming provisions in sections 5(3) and 5A(2) only apply for the purposes of subitems 13(2) and 14(2) of Schedule 2. They do not deem the packaging compliant for any other purpose. For example, a health promotion insert that is not exactly as prescribed in regulations made for paragraph 82(1)(a) of the new Act might not be covered; the section only applies to inserts “prescribed by regulations”. If the regulations have not been made or are amended, the insert might not be authorised.

Sixth, the equal-display disregard in section 5A(4) applies only to cigarettes “manufactured during the main transition period”. It uses “manufactured” not “supplied” or “imported”. Cigarettes manufactured after the main transition period but before the counting deadline are not disregarded. Also, the disregard only works for the 2025 calendar year calculation. Future years are unaffected.

Seventh, the definitions section (section 4) states that expressions in the Rules that are also in the new Act have the same meaning as in the new Act. That is a standard provision, but it means that terms like “retail sale” and “supply” are likely defined in the new Act, and those definitions may be broader than common usage. Practitioners should not assume everyday meanings.

Eighth, the instrument is silent on record-keeping. There is no requirement for a retailer to document when stock was supplied, but the burden of proof will rest on the retailer to establish the date if a dispute arises. Without written evidence, a retailer could lose the defence.

Compliance with the Rules is essentially a matter of accurately identifying which transition period applies to which activity and then ensuring that the conditions for each relief are met. There are four distinct compliance scenarios.

Scenario one: a manufacturer wishes to insert health promotion inserts into retail packaging before the end of the main transition period. The manufacturer should first identify the exact end date of the main transition period from Schedule 2 to the transitional Act. Second, it must ensure that the inserts it uses are those “prescribed by regulations made for the purposes of paragraph 82(1)(a) of the new Act”. Third, it must ensure that the packaging otherwise complies with section 23 of the old TPP Act as in force immediately before the commencement day. The manufacturer should document its compliance with the old Act’s requirements. After the main transition period ends, the manufacturer must switch to full compliance with the new Act for all packaging.

Scenario two: a manufacturer wishes to display on-product health messages on cigarettes during the main transition period. The manufacturer should confirm that the message displayed is exactly as prescribed by section 114A of the new regulations. If the cigarette contains a filter, the manufacturer may also choose not to display any message during the main transition period, relying on subsection 5A(3). In either case, the manufacturer must ensure that the cigarette’s appearance otherwise complies with section 26 of the old TPP Act (for the deemed compliance benefit) and that after the main transition period, filtered cigarettes comply with subsections 86(2)-(4) of the new Act and the new regulations. The manufacturer should also track the number of cigarettes manufactured during the main transition period that do not display messages, so it can correctly disregard them for the 2025 equal-display calculation.

Scenario three: a retailer has stock that was supplied to it before 1 April 2025 in packaging that does not meet the new Act’s requirements. The retailer must first verify that the stock was physically supplied (received) before 1 April 2025, and maintain documentary evidence such as invoices, delivery dockets or shipping records. Second, the retailer must ensure it does not repackage the items or alter the retail packaging in any way; the items must be sold or offered for sale in the same packaging as supplied. Third, the retailer must check that it satisfies item 16 of Schedule 2 to the transitional Act. That item likely requires that the packaging complied with the old TPP Act when supplied and that the retailer is not otherwise in breach of subitem 15(2). If those conditions hold, the retailer may sell that stock until 30 June 2025 without liability under sections 94, 96, 102, 104, 108, 110, 116 and 118 of the new Act. However, the retailer must still ensure that other new Act requirements not listed in section 6 are met. In particular, if the new Act requires health promotion inserts or on-product messages for the category of product, the retailer should consider whether a separate breach could arise. Prudent retailers will also check whether state or territory laws impose additional requirements.

Scenario four: a retailer receives stock on or after 1 April 2025. That stock must fully comply with the new Act from the moment of receipt. The section 6 relief does not apply. The retailer should ensure that its suppliers are aware of this deadline to avoid receiving non-compliant goods.

For all scenarios, documentation is essential. While the Rules do not mandate record-keeping, the ability to prove the factual conditions for any relief will be decisive in an enforcement action. Legal advisers should recommend that clients maintain a register of stock receipt dates, copies of invoices, and photographs of packaging that remain unchanged. Internal compliance protocols should be updated to flag the transition period end dates and to ensure that after 30 June 2025 (for retailers) or after the end of the main transition period (for manufacturers), all products in the supply chain meet the new Act’s requirements.