Vaping and the Law in Australia @ April 2022
Research on the law on Vaping in Australia @ April 2022
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)
1. Commonwealth Standard for the Uniform Scheduling of Medicines and Poisons (Cth) (“Poison Standard”)
· Nicotine is a schedule 4 ‘prescription only medicine ‘under the Poisons Standard, except where it occurs in tobacco prepared and packed for smoking or in preparations for oromucosal or transdermal administration (such as nicotine patches, gum, mouth spray, lozenges and inhalators) used to support withdrawal from tobacco smoking.
· E-cigarettes that contain nicotine are subject to the same state and territory laws that apply to other schedule 4 prescription only medicines.
· The Therapeutic Goods Administration (TGA) amended the current Poisons Standard as it relates to nicotine, which took effect on 1 October 2021. Australians now require a prescription to legally access e-cigarettes containing nicotine, liquid nicotine, and other novel nicotine delivery products (whether access within Australia or imported via the Personal Importation Scheme and other TGA schemes). Permitted exceptions apply under the Commonwealth Therapeutic Goods legislation.
As of March 2022, the TGA had not approved any nicotine vaping products or registered any in the Australian Register of Therapeutic Goods (ARTG). Medicines that are not in the ARTG are known as 'unapproved' medicines. There are established pathways for consumers to legally access unapproved nicotine vaping products, with a valid prescription, but these medicines have not been assessed by the TGA for safety, quality and efficacy. (https://www.tga.gov.au/nicotine-vaping-products-information-prescribers)
The TGA released a safety standard for nicotine vaping products: The Therapeutic Goods (Standard for Nicotine Vaping Products) (TGO 110) Order 2021.
The TGO 110:
prohibits some substances with known health risks if inhaled, from being included in nicotine vaping products (including 2,3-pentanedione, acetoin, benzaldehyde, cinnamaldehyde, diacetyl, diethylene glycol, dl-alpha-tocopherylacetate and ethylene glycol.
Prescribes that nicotine vaping product must comply with child-resistant packaging requirements under TGO 95;
Prescribes the concentration of nicotine in a nicotine vaping product to not be less than 90.0% and not more than 110.0% of the stated content.
products must specify the ingredients and nicotine concentration level and display safety warning statements.
Nicotine vaping products imported into Australia under the Personal Importation Scheme and Traveller’s Exemption are not required to be in child‑resistant packaging or to specify the ingredients and nicotine concentration level and display safety warning statements.
The TGO 110 does not mean that unapproved nicotine vaping products that comply with TGO 110 now have TGA approval.
E‑cigarettes that do not contain nicotine are allowed to be imported into Australia. They may be sold by retailers in all states and territories except Western Australia but must not be sold to minors.
In 2018, the Department of Health released the policy and regulatory approach to e-cigarettes in Australia, which sees all Australian governments taking a precautionary approach to e-cigarettes. (See https://www.health.gov.au/resources/publications/policy-and-regulatory-approach-to-electronic-cigarettes-e-cigarettes-in-australia)
ACT
Medicines, Poisons and Therapeutic Goods Act 2008
Tobacco and Other Smoking Products Act 1927
Since 1st August 2016, e-cigarettes became regulated as smoking products in the ACT. Therefore, the same restrictions that apply to tobacco products also apply to vaping products, including restrictions around the sale to persons under 18 years, point-of-sale display and marketing of products, and use in smoke-free areas.
The sale of vaporisers or e-cigarettes 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 a car with children under 16.
Sampling of e-liquid in store is banned.
Businesses that sell personal vaporisers are now required to hold a tobacco licence.
For more details, see : https://www.cmtedd.act.gov.au/open_government/inform/act_government_media_releases/meegan-fitzharris-mla-media-releases/2016/regulations-on-e-cigarettes-come-into-effect-today
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 e-cigarette accessories to a person under 18 years of age.
It is illegal to display, advertise or promote e-cigarettes.
It is illegal for retailers (other than pharmacies) to sell e-cigarettes or e-liquids that contain nicotine, including online sales.
From 1 October 2021, e-cigarettes and e-liquids containing nicotine are a prescription-only medicine.
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.
Using e-cigarettes on public transport vehicles is also banned.
For more details, see : https://www.health.nsw.gov.au/tobacco/Pages/e-cigarettes.aspx
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.
Pharmacies that wish to sell nicotine e-cigarettes require a smoking product licence.
See: https://www.health.tas.gov.au/health-topics/smoking/smoking-topics/e-cigarettes
QLD
Tobacco and Other Smoking Products Act 1998
Health (Drugs and Poisons) Regulation1996 (HDPR)
E-cigarettes (whether containing nicotine or not) 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.
E-cigarettes and its products which contain nicotine are illegal in Queensland, unless on prescription and provided by a pharmacist or through Therapeutic Goods Administration processes.
For more details, see: https://www.qld.gov.au/health/staying-healthy/atods/smoking/devices
SA
Tobacco and ECigarette Products Act 1997
Tobacco and ECigarette Products Regulations 2019
Controlled Substances Act 1984.
Tobacco and E-Cigarette Products (E-Cigarette Liquid) Variation Regulations 2021
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 E-cigarette 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.
Nicotine for use in e-cigarette products cannot be lawfully sold by tobacco or e-cigarette retailers in South Australia. Possession of a Schedule 4 Prescription Only Medicine, including nicotine, is an offence, unless it has been lawfully prescribed and supplied to that person.
The Tobacco and E-Cigarette Products (E-Cigarette Liquid) Variation Regulations 2021 clarifies that liquids, and liquid constituents are included in the definition of e-cigarette product’.
Under the South Australian Government Proclamation issued under the Tobacco and E-Cigarette Products Act 1997, pharmacists and medical practitioners may sell nicotine lawfully prescribed as a Schedule 4 Prescription Only Medicine, and they are exempt from certain offences in the Act to allow the lawful sale or supply of nicotine e-cigarettes in accordance with the TGA’s national scheme.
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 Amendment Act 2016 (amended the Tobacco Act 1987)
The Tobacco Amendment Act 2016 regulates all e-cigarettes in the same way as tobacco products.
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 e-cigarette,
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.
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 e-cigarette products.
It is also illegal to buy e-cigarettes containing nicotine from overseas and bring them into the country, unless special legal requirements, including having a prescription from an Australian doctor, are met.
Generally, the sale, possession or use a nicotine e-cigarette in Victoria is illegal, subject however, to some very specific exceptions such as use based on a doctor’s prescription to aid smoking cessation.
Sale, possession and use of non-nicotine e-cigarettes is legal in Victoria provided the liquid used in the e-cigarette does not contain any other illegal ingredients.
For more details, see https://www.betterhealth.vic.gov.au/health/HealthyLiving/e-cigarettes
WA
Tobacco Products Control Act 2006
Medicines and Poisons Act 2014
It is illegal to sell, supply or possess an e-cigarette or any liquid that contains nicotine in Australia without a doctor’s prescription.
Products that resemble tobacco products, including e-cigarette devices and their components, regardless of whether they contain nicotine or not, cannot be sold by tobacco or general retailers in WA and it is an offence under the Tobacco Products Control Act 2006.
An e-cigarette device designed and intended for delivery of nicotine may be supplied by a registered pharmacy, for use with prescribed nicotine products, as part of a medically supervised smoking cessation program.
The WA Supreme Court in Van Heerden v Hawkins [2016] WASCA 42 (10 March 2016) confirmed that e-cigarettes are product that resemble a tobacco product and the seller of these e-cigarettes was convicted of this offence. ). Available from: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/WASCA/2016/42.html?context=1;query=Van%20Heerden%20tobacco%20products%20control%20e-cigarette;mask_path=au/cases/wa/WASC+au/cases/wa/WASCA+au/cases/wa/WALawRp
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
For more details, see : https://www.healthywa.wa.gov.au/Articles/A_E/Electronic-cigarettes-e-cigarettes
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.
For more details, see : https://nt.gov.au/wellbeing/healthy-living/smoking
Other relevant research:
Other relevant research:
Erku, DA, Morphett, K, Steadman, KJ, & Gartner, CE. (2019). Policy Debates Regarding Nicotine Vaping Products in Australia: A Qualitative Analysis of Submissions to a Government Inquiry from Health and Medical Organisations. Int J Environ Res Public Health, 16(22). Available from: https://www.ncbi.nlm.nih.gov/pubmed/31752132
Haggan, M. E-cigarettes: proceed with caution. AJP, 2021. Jan 29, 2021. Retrieved from https://ajp.com.au/features/e-cigarettes-proceed-with-caution/
Hall, W, & Gartner, C. (2021). Australian policymakers do not have to choose between protecting youth and allowing smokers to use nicotine vaping products. Addiction. Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/33822414
Moore, M, McKee, M, Daube, M. Harm reduction and e-cigarettes: Distorting the approach. J Public Health Policy. 2016 Dec;37(4):403-410. Available from: http://www.ncbi.nlm.nih.gov/pubmed/28202930
Ween, MP, Chapman, DG, & Larcombe, AN. (2021). What doctors should consider before prescribing e-liquids for e-cigarettes. Med J Aust. Retrieved from https://www.ncbi.nlm.nih.gov/pubmed/34839531
Wolfenden, L, Stockings, E, Yoong, SL. Regulating e-cigarettes in Australia: implications for tobacco use by young people. Med J Aust. 2018 Jan 15;208(1):89. Available from: https://www.ncbi.nlm.nih.gov/pubmed/29320661
New Reports
ABC Radio Adelaide. Vaping products are 'getting around' import ban and into the hands of children, AMA warns. ABC News, 2021. Nov 2, 2021. Retrieved from https://www.abc.net.au/news/2021-11- 02/ama-warns-about-vaping-among-children-despite-import-ban/100587000
Clun, R. E-cigarette prescriptions on rise amid concern over ‘poor-quality care’. The Sydney Morning Herald, 2022. Feb 7, 2022. Retrieved from https://www.smh.com.au/politics/federal/ecigarette-prescriptions-on-rise-amid-concern-over-poor-quality-care-20220202-p59t6u.html
Gramenz, J. Man, 28, is the first person in NSW to be charged under new vape laws after 'being found with more than 1,230 devices'. Daily Mail, 2021. Nov 26, 2021. Retrieved from https://www.mailonsunday.co.uk/news/article-10245019/Man-28-person-NSW-charged-new-vapelaws.html
Lindell, J. Testing reveals dangerous ingredients in seized prohibited vaping products seized from Canberra businesses. The Canberra Times, 2021. Dec 7, 2021. Retrieved from https://www.canberratimes.com.au/story/7542160/testing-reveals-dangerous-ingredients-inprohibited-vaping-products-seized-in-act/?src=rss