A Nelson store whose signage featured the logo of tobacco rolling paper brand Zig Zag has replaced it with an image of a cigarette after being prosecuted by the Ministry of Health.
However the new signage, which depicts a lit cigarette surrounded by smoke, could still be in breach of the law.
Owner of the Discount Here Nelson store Benjie Qiao was found guilty of advertising tobacco product in the Nelson District Court in March.
The store opened in September 2015 and featured the Zig Zag logo in it’s signage.
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A Ministry of Health spokesperson said a complaint was received by the smoke-free enforcement officer employed by Nelson Marlborough District Health Board in September 2015.
Qiao was charged on April 27 and August 18 last year with advertising a tobacco product, which is not allowed under the Smoke-free Environments Act 1990.
The act deems a tobacco product advertisement to be any pictorial representation that is used to encourage the use, notify the availability of, or promote the sale of any tobacco product or to promote smoking behaviour.
In each instance he was fined $300 and ordered to pay court costs.
Ministry of Health records show that there were two prosecutions by the ministry for similar offences in 2013.
Qiao said he was surprised to receive the complaint as he knew of other stores around the country that featured the logo in their signage and he was unsure why he was being targeted.
He said he was told he could be fined up to $10,000, so he contacted a lawyer before the case went to court.
When he was found guilty, he said he would change the signs as he didn’t want to argue with the Ministry of Health, but that he didn’t think he was in the wrong.
“I’m alright, they wanted me to change it and I’m quite happy to do so.”
The case was heard in the Nelson District Court where Judge David Ruth found the signage was clearly tobacco product advertising.
During an interview in February 2016, Qiao said the store sold “dairy stuff” and tobacco, the latter making up 80 per cent of the total products sold.
At some stage, the signage was changed to remove the cigarette and swirl of smoke coming from it which Qiao said was to “keep out of trouble”.
He went on to say that before he managed the store, no tobacco was sold there so the signage was to advertise that it now sold tobacco.
Judge Ruth said that was an “outright and unequivocal admission” that the signage was to promote the sale of tobacco.
When Qiao was interviewed again in April and asked why he had not removed the signage, he said it was “not fair”.
It was then Qiao said his intention was to show he was a retailer of cut-price products like rolling papers and tobacco accessories.
Ruth said that was an attempt to “change the goalposts” to remove himself from the scope of the law.
Crown prosecutor Jackson Webber said it was “simply unrealistic” to suggest there was any other connotation other than that the use of the logo encouraged the use of tobacco, notified the public of its availability and promoted the sale of tobacco products.
“This was an attempt to indicate to the public that tobacco and tobacco products were on sale at discounted prices.”
Webber said it was as a matter for the Ministry of Health whether or not they took any further action against Qiao if the signs remained up.