High Court dismisses appeal against tobacco firm over staff reward scheme


THE HIGH Court has upheld a decision dismissing a prosecution against tobacco manufacturer PJ Carroll over giving vouchers to shop staff as a reward for promoting its cigarette products.

The tobacco company had denied charges brought by the HSE in the District Court of giving or causing to give financial assistance to the Spar retailer in Dublin City University, and to one of its shop assistants, on a date unknown between July 1st and August 31st, 2009, in consideration of the promotion of a tobacco product.

On July 1st, 2009, all advertising of tobacco products was banned in retail shops in Ireland and tobacco products are now stored in closed, contained units. Sponsorship of tobacco products is also banned under public health laws.

Shop staff and owners were motivated to promote Pall Mall cigarettes under a “mystery shopper” scheme operated by PJ Carroll Ltd, it was alleged. It was called the “Pocket a Packet” scheme.

It was also alleged that, when customers asked for cigarettes, staff would be rewarded with a €30 voucher if they responded by saying: “We also stock Pall Mall, the best value cigarette on the market.”

Shops that passed the mystery shopper test would also be put forward for a prize draw where €1,000, €2,000 and €5,000 worth of wholesale vouchers could be won.

District Judge Bridget Reilly held the scheme was a promotion but found that the term “financial assistance” did not include a gift, prize or reward such as a voucher. She dismissed the prosecution.

The judge agreed to an appeal of her ruling by way of case stated to the High Court, which was asked to decide whether she was correct in law in her finding regarding financial assistance, and that such assistance must assist a particular event or activity.

She also asked the court to rule whether she was correct in holding that what the company did amounted to a promotion for the purposes of the Tobacco Acts.

In his judgment yesterday, the president of the High Court, Mr Justice Nicholas Kearns found the District judge was correct in law in finding the term financial assistance does not include a gift prize or reward so as to exclude a monetary payment or cash voucher redeemable for money.

Judge Reilly was also correct in holding that the financial assistance must assist a particular event or activity and in her finding that the activity was a “promotion”.

Mr Justice Kearns said he shared the view of Judge Reilly that the words “financial assistance” did not sit logically or sensibly with a once-off prize or reward, which in this case was €30.