Vaping and the Law in Australia

Research on the law on Vaping in Australia

Firstly what are we seeing with Vaping in Aust?

From the 2019 National Drug Strategy Household Survey Report prepared by the Australian Institute of Health and Welfare (AIHW):

Use of e‑cigarettes is becoming more prevalent:

  • Between 2016 and 2019, the proportion of people who had ever used e‑cigarettes rose from 8.8% to 11.3%.

  • The rise among young adults was particularly notable. Nearly 2 in 3 (64%) current smokers and 1 in 5 (20%) non‑smokers aged 18–24 reported having tried e‑cigarettes.

  • Among those who had tried them, frequency of use also increased, with more people using them at least monthly (from 10.3% in 2016 to 17.9% in 2019).

  • Between 2015 and 2019, e-cigarette use by young people increased by 72% in the US, 150% in Canada and 96% in Australia (Therapeutic Goods Administration, 2020)

Government/State Law/Policy Provisions

Commonwealth (Federal Government)

Commonwealth Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP)

Therapeutic Goods Administration, Notice of final decision to amend the current Poisons Standard – nicotine, 2021

  • Nicotine is listed as a poison except for use as an aid in withdrawal from tobacco smoking; in preparations not for human therapeutic use or in tobacco prepared and packed for smoking and in preparations for human therapeutic use as an aid in withdrawal from tobacco smoking in preparations for oromucosal or transdermal use (e.g., nicotine patches, gum or mouth sprays) or in tobacco intended for smoking.

From 1 October 2021, the Therapeutic Goods Administration (TGA) changes to nicotine as a poison will take effect. The changes include:

  • Australians will require a prescription to legally access ecigarettes containing nicotine, liquid nicotine, and other novel nicotine delivery products (whether access within Australia or imported via under the Personal Importation Scheme and other TGA schemes). (https://www.tga.gov.au/nicotinee-cigarettes)

  • It is illegal to sell or buy nicotine for use in e-cigarettes. Nicotine is a dangerous poison under The Poisons Standard.

  • Therapeutic Goods Administration does not support the use of e-cigarettes and has not approved any e-cigarette product as a therapeutic good.

ACT

Medicines, Poisons and Therapeutic Goods Act 2008

  • The sale of vaporisers with nicotine is banned, but vaporisers without nicotine can be sold.

  • E-cigarettes are not to be advertised in the ACT.

  • Retailers shall not display adverts inside the store or in public.

  • No vaping in smoke-free areas.

  • No vaping in car with children under 16.

  • Sampling of e-liquid in store is banned

NSW

NSW Public Health (Tobacco) Act 2008

Smoke-free Environment Act 2000

Passenger Transport (General) Regulation 2017

NSW Poisons and Therapeutic Goods Regulation 2008.

  • It is illegal to sell e-cigarettes or ecigarette accessories to a person under 18 years of age.

  • It is illegal to display, advertise or promote e-cigarettes.

  • E-cigarettes that do not contain nicotine are LEGAL for adults in NSW.

  • The sale and use of e-liquid nicotine, including in e-cigarettes, is illegal, unless the user has a prescription from a medical doctor.

  • E-cigarettes are prohibited in smokefree areas. They can however be used in smoking areas.

TAS

Poisons Act 1971

Public Health Act 1997

  • It is illegal to sell, buy or use ecigarette cartridges containing nicotine.

  • restrictions on the display and advertising

  • sale of e-cigarettes to people under 18 years of age is illegal

  • e-cigarettes are prohibited in areas that are smoke-free.

  • if the e-cigarette is for therapeutic purposes such as smoking cessation or alleviation of nicotine withdrawal, the e-cigarette must be registered by the TGA in order to be lawfully sold. This is only available by a doctor as a schedule 4 prescription only medicine under the National Poisons Standard.

QLD

Tobacco and Other Smoking Products Act 1998

Health (Drugs and Poisons) Regulation1996 (HDPR)

E-cigarettes are smoking products and subject to the laws in place for tobacco cigarettes.

These devices cannot be:

  • used in existing no-smoking indoor and outdoor places

  • sold to children under 18 years of age

  • advertised, promoted or displayed at retail outlets

  • sold in a vending machine.

  • liquid nicotine is considered a ‘S4 restricted drug’ under the HDPR, so use or supply must be by the order of persons permitted under the HDPR to prescribe, and is only available when supplied extemporaneously from a compounding pharmacist on prescription or through other Therapeutic Goods Administration processes.

  • Persons seeking to access unapproved electronic cigarette products containing liquid nicotine for human therapeutic use may do so under the TGA’s Special Access Scheme, or the Personal Importation Scheme or Traveller’s Exemption.

  • It is an offence for a person to manufacture, obtain, possess, prescribe, dispense, sell, advertise, use or destroy nicotine, unless the person is specifically authorised or holds an approval under the HDPR.

SA

Tobacco and ECigarette Products Act 1997

Tobacco and ECigarette Products Regulations 2019

Controlled Substances Act 1984.

It is an offence to:

  • sell or supply e-cigarette products to a person under the age of 18 years;

  • sell e-cigarette products by retail without a Retail Tobacco and ECigarette Merchant’s Licence;

  • provide or offer to provide free samples, prizes, gifts or other benefits (including through sponsorship, competitions and rewards) in connection to the sale of e-cigarette products;

  • sell e-cigarette products from temporary outlets, sales trays and vending machines;

  • use e-cigarettes in public places that are currently smoke-free under the law, including in a motor vehicle if a child under the age of 16 years is present;

  • advertise and promote e-cigarette products;

  • have e-cigarette products on display at the point of sale; and

  • sell e-cigarette products by indirect orders (including internet sales)

Adults can buy e-cigarette products, however there is a ban on the sale of nicotine for use in e-cigarettes under the Controlled Substances Act 1984.

  • A new penalty structure for the sale or supply of tobacco products and e-cigarette products to a minor attracts a fined up to $20,000 for a first offence, and up to $40,000 for a second and subsequent offence, and in any other case (such as an individual vendor), the maximum penalty is $5,000.

VIC

The Tobacco Act 1987

It is illegal to :

  • smoke or vape in all enclosed workplaces and many public spaces where people can be exposed to second-hand tobacco smoke or aerosol from an ecigarette,

  • smoke or vape in outdoor dining areas of restaurants, cafes, takeaway shops and licensed premises

  • sell any tobacco or e-cigarette product to anyone under 18 years of age.

Other provisions include:

  • Tobacco or e-cigarette products cannot be sold from temporary outlets (e.g., at sporting, music and cultural events).

  • The Minister for Health can ban the sale of certain tobacco products if they are found to appeal to young people (for example, products with a fruity or sweet flavour).

  • Retailers cannot display tobacco or e-cigarette products at point of sale (with an exemption for certified specialist tobacconists and e-cigarette retailers).

  • Tobacco and e-cigarette products cannot be included in shopper loyalty schemes.

  • The law prohibits retailers from providing free samples of ecigarette products.

WA

Tobacco Products Control Act 2006

Medicines and Poisons Act 2014

  • Products that resemble tobacco products, regardless of whether they contain nicotine or not, cannot be sold in WA and it is an offence under the Tobacco Products Control Act 2006.

  • The WA Supreme Court in Hawkins v Van Heerden [2014] WASC 127 held that e-cigarettes are product that resemble a tobacco product and the seller of these e-cigarettes was convicted of this offence.

  • E-cigarettes and other personal vaporisers for delivery of nicotine or other substances are not permitted to be used in any area where smoking is restricted.

NT

Tobacco Control Act 2002 (as amended 2019)

  • The Tobacco Control Act 2002 was amended in 2019 to apply to ecigarettes and their accessories. The Act:

  • restricts smoking in certain public places and workplaces

  • regulates the packaging, advertising and sponsorship of tobacco products

  • removes tobacco products from display

  • regulates the conduct of premises at which tobacco products are sold

  • prohibits the sale and supply of tobacco products to children.

  • the sale of e-cigarettes requires a Tobacco Retail Licence and the same restrictions that apply to the sale and consumption of tobacco applies to ecigarettes.

Other relevant research:

Soule, EK. et al., Invalidity of an Oft-Cited Estimate of the Relative Harms of Electronic

Cigarettes https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6951374/

Activities of Legalise Vaping in Australia: https://www.legalisevaping.com.au/about-us

Australian Retail Vaping Industry Association (ARVIA) calls for Tasmania to legalise vaping;

https://www.theadvocate.com.au/story/6881891/nicotine-vaping-would-save-smokers-healthsystem-

big-dollars/

Tanya Cavanagh