Ministry of Health v Qiao [2017] NZDC 5260 (14 March 2017)

Last Updated: 21 July 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT NELSON

CRI-2016-042-001739 [2017] NZDC 5260

MINISTRY OF HEALTH

Prosecutor

v

BENJIE QIAO

_Defendant

Hearing:	14 March 2017
Appearances:	J M Webber for the Prosecutor A R Goodison and S J Zindel for the Defendant
Judgment:	14 March 2017

_{ORAL JUDGMENT OF JUDGE D C RUTH}

[1] Benjie Qiao is charged under two charging documents, that on two dates, being 27 April 2016 and 18 August 2016, did publish at Discount Here, Nelson an advertisement for a tobacco product in contravention of s 22 Smoke-free Environments Act 1990. Those charges are fineable only, they are offence category 1 for the purposes of the Criminal Procedure Act 2011.

[2] The only evidence that I heard in this case came from an officer who I am satisfied is duly authorised under the relevant legislation, who was tasked with carrying out an investigation of this matter. Ms Anderson gave evidence by way of reading a brief or formal written statement by consent. She records that there was a complaint received by the Ministry of Health about this particular premises, and the complaint related to the use of the logo which I will call, for these purposes,

_{“Zig-Zag man.” To put it in context, Zig-Zag man is a caricaturised depiction of a}

MINISTRY OF HEALTH v BENJIE QIAO [2017] NZDC 5260 [14 March 2017]

soldier from North Africa many, many years ago, and is often seen with a cigarette from his mouth with smoke swirling up from it. In more recent times the trademark has been altered, from what it was in 1962, to depict the same soldier but without that cigarette and swirling smoke.

[3] The real question in this case is whether the sign taken as a whole was capable of the inference that it was an invitation to those who might seek only the purchase of cigarette rolling papers and/or associated paraphernalia not conforming to the definition of tobacco products, and that it was aimed to those persons only, or whether the broader view that this was the use of an internationally recognised logo associated, almost inevitably, with smoking generally, and was in fact an invitation to members of the public who were so minded to visit the shop in the anticipation of being able to buy tobacco, cigarettes and the like, whether of the Zig-Zag brand or not, at discount prices.

[4] The Ministry had Ms Anderson go and visit this premises, and it is clear that the sign changed from the perhaps more usual depiction of the man with the cigarette to one where there was no cigarette. All that was in fact explained by Mr Qiao, and I will come back to that later.

[5] It is clear that in September there was communication both by letter and in person indicating to Mr Qiao that the Ministry’s view was that he was in contravention of 22 Smoke-Free Environments Act in relation to the prohibitions that it involves regarding smoking advertisement. Section 22 of the Act provides a prohibition on the advertisement of tobacco products.

[6] The position taken in this case by Mr Qiao is that his intention was only to show that he was a retailer of cut-price non-tobacco products, by which I mean tobacco accessories and rolling papers, which it is accepted do not form part of the prohibition that s 22 is aimed at.

[7] There is little factual dispute in this case. It seems clear enough that there was interaction between Ms Anderson and Mr Qiao. His position, as I understand it from the material I have, is that he felt he was perhaps being hard done by, that he had thought that by changing the nature of the logo that he was therefore removing his advertisement outside the prohibitions contained in the Act, and that because he was aware other retailers might have been using similar signage that he ought to be able to do so himself. As it happens, I am satisfied that another discount store, referred to Mr Qiao as having similar signage, removed it after discussion with the Ministry.

[8] Mr Qiao was interviewed on two occasions under caution. He indicated that he had received the various communications in writing, and felt that it was unfair that he should have to remove his signage. It was in the second interview that took place on 27 April 2016 where it seems for the first time Mr Qiao contended that the signage was not in relation to tobacco products but rather in relation to those items which are exempt, in other words smoking papers, lighters and filters. The prosecution concedes that if that in fact was the case, then there would be no offence committed but the Ministry’s position is that, in all the circumstances, the only realistic inference to be drawn is that this was a more general advertisement for tobacco and tobacco products.

[9] One of the matters raised in the hearing was that Zig-Zag papers are the primary product associated with Zig-Zag as a brand, and Ms Anderson confirmed that, to the best of her knowledge, Zig-Zag products other than rolling papers are certainly not usual in New Zealand, and she was unaware of any other retail outlet that would sell products over and above the Zig-Zag rolling papers. But it appears that, firstly, such products can be purchased online in New Zealand and, secondly, that the trademark that is now represented in the 2011 trademark details specifically include tobacco and cigarettes. That seems to me to be not the issue here. The issue really is the breadth and scope that the actual logo represents to people generally. In other words, is it generally recognised as simply a logo for Zig-Zag papers, or is it recognised as an advertisement relating to smoking generally?

[10] Something has been made in this case of the fact that it is permissible, and not in contravention of the Act, for the logo to which I have referred to be used within the confines of a shop, showing clearly the sale of Zig-Zag papers. I have been provided with photographs by the defence that clearly show matches, cigarette lighters and Zig-Zag papers of various types for sale in the shop context. I accept all of that. The real question is the difference between showing something in a shop by reference to its brand, and something which is shown as a prominent advertisement outside a shop in the context of the sign that I have here which, I repeat, was simply the logo of the Zig-Zag man accompanied by the words, “Discount here.”

[11] Exhibits were produced to me showing the signage on two different dates, and various correspondence with Mr Qiao, and also the statements taken from him.

[12] The statement dated 19 February last year, taken at Queen Street, Richmond, includes the following passages:

Question: What percentage of products sold are tobacco products? Answer: 80 percent.

Question: What type of products does this business sell? Answer: Dairy stuff plus tobacco.

[13] He goes on to indicate that the signage was produced at his instance and no doubt to his cost. He also spoke about changing the signage to remove the cigarette and the swirl of smoke coming from it. He thought that it was better for that part of the advertisement to be covered and he said specifically, in answer to question, “Why did you think it was better to cover it?” answer, “To keep out of trouble.” He went on to say:

Shop previously not selling tobacco. Easier way to advertise have tobacco. Try another way for people to know sell, so people know discount for tobacco.

[14] That, in my view, is an outright and unequivocal admission that the signage was directed to the public, to let them know that, unlike the previous management of the shop, this management, under Mr Qiao, was in the business of selling discount tobacco, and that he wanted to make sure that people who might come by his shop

would know that, unlike previously, this shop was now firmly in the business of selling discounted tobacco. He does not say, “I wanted the public to understand that I had discounted rolling papers,” he says, “Tobacco,” as I am sure he meant.

[15] The balance of the statement really talks about his view as to the fairness of it all, and as to the practices carried out by other retail outlets as I have previously discussed.

[16] Indeed, when he was spoken to again on 27 April 2016, he simply said, in answer to a question as to why he had not removed the signage, that it was simply, “Not fair.” He then said, for the first time, that it was not part of the tobacco products advertising, it was about smoking accessories. That seems to me to be indicative of him understanding the difficulty he was in, and an attempt to rather change the goalposts to show that he was not actually trying to promote awareness of his sales of tobacco but rather tobacco accessories so as to remove himself from the ambit of s 22.

[17] Both the informant and the defence have filed written submissions effectively on legal matters because, as I say, the facts are not necessarily much in dispute in terms of the evidence given, and I note that Mr Qiao is not present and has not therefore given any different interpretation on what has been placed before me.

[18] In terms of the informant’s submissions, one of the basic premises is that what is important is the use to which the sign was being put, and Mr Webber simply invites me to what it was Mr Qiao said himself the use was, particularly in his first statement, and the fact that he showed that he was aware of the need to perhaps change the advertisement showed at least some knowledge and awareness of the difficulty he had placed himself in.

[19] Mr Webber, having taken me through the purposes of the Act, says that this case involves matters that are captured by the Act and the various definitions contained therein because this is, after all, a pictorial representation used to encourage the use of or notify the availability or promote the sale of any tobacco product, or to promote smoking behaviour. Given what Mr Qiao himself said was

the reason for using the logo, it seems to me inescapable that he falls directly on all fours within that definition. It includes, in its definition, any tobacco product trademark which clearly Zig-Zag man and its logo is.

[20] I take some comfort from the words of Judge Keane, as he then was, in the case which has been referred to me of Director-General of Health v Rothmans of Pall Mall (New Zealand) Ltd1, and in that case which was dealing with the question of tobacco products, His Honour said this:

Any interpretation which is not true to the generality of the prohibition in s 22(1) ignores more than the plain language of s 22(1). It ignores the breadth of the definition of tobacco product advertisement, which makes the prohibition so comprehensive. It ignores finally and most basically the purpose which the prohibition is intended to serve, which is set out not just in the long title of the Act, but in s 21.

And so Mr Webber submits that this is clearly a pictorial representation encouraging the use or notifying the availability or promoting the sale of tobacco products, or is in fact promoting smoking behaviour and, in those circumstances, Mr Webber submits that it is simply unrealistic to suggest that there is any other connotation to be placed upon the circumstances as they are presented in this case. The connotation of Zig-Zag man, in my view, goes far further than just a connotation with rolling papers.

[21] For the defence, Ms Goodison has also supplied me with submissions. She, of course, not unreasonably perhaps diverts the Court’s attention to the later of the two statements made by Mr Qiao to emphasise his contention that this was really about cigarette papers and tobacco accessories, and not for tobacco itself. She takes me through a number of the various definitions, as did Mr Webber.

[22] Under her heading of, “Discussion,” she submits that it would be inconsistent to say that this constitutes a tobacco product advertisement just because it is outside a retailer’s property. When Ms Anderson was giving evidence there was some discussion with her about the difference between those items which are sold with advertising material within the shop and signage outside, and the clear impression

_{that her evidence gave me was that there is a distinction to be drawn between what a}

1 Director-General of Health v Rothmans of Pall Mall (New Zealand) Ltd [1996] DCR 353 (DC)

person might be subjected to by way of advertisement in a shop, having gone in there, as opposed to effectively a notification to the public at large that items are available. I have already indicated I think that my view on the facts is that this was clearly an invitation to the public to visit his shop if they were minded to avail themselves of cut-price tobacco and tobacco products.

[23] Ms Goodison also suggested that Zig-Zag man, as an image, has taken on some life of its own, but when I pressed her for what else other than a clear connotation with the smoking of tobacco such a life of its own might constitute, with respect I found her explanations unsatisfactory.

[24] I accept what Ms Goodison attempts to do in terms of distinguishing between tobacco products and tobacco accessories, but her submissions rely on me making a factual finding that the advertising hoarding in this case is in fact about tobacco accessories and not tobacco products. That is a factual position which I do not reach.

[25] I have reached the clear view that this was an attempt to indicate to the public that tobacco and tobacco products were on sale at discounted prices.

[26] Ms Goodison raises some more far-ranging questions which are not before the Court today, and it may well be that on a case by case basis in the future other logos which might have escaped attention until now may well come under the scrutiny of the Ministry. That is for another day. That is not what I am concerned with today.

[27] I am satisfied that, on an objective assessment, this clearly was an advertisement for tobacco or tobacco products. This was designed, just as Mr Qiao said, to alert the public that under his new management this shop was now in the business of selling cut-price tobacco and tobacco products. That he also sold exempted items such as accessories is simply by the by.

[28] I am satisfied that this charge has been made out to the required standard. I

reject the suggestion that this was other than an advertisement falling under s 22 of

the Act. It does not fall under any of the exemptions, and the charge is proved in each case.

D C Ruth

District Court Judge