Mixed signals on e-cigarettes in NSW

In a move likely to upset the pro-vaping brigade, NSW has substantially strengthened the regulation of e-cigarettes.

The Public Health (Tobacco) Amendment (E-cigarettes) Act 2015  (NSW) [“E-cigarette Amendment”], applies to e-cigarettes and e-cigarette accessories, regardless of whether they contain nicotine.  It extends a number of existing tobacco controls to e-cigarettes.

As first introduced, the government’s Bill was an exercise in minimalism [OK, tokenism], doing nothing beyond prohibiting the sale of e-cigarettes and e-cigarette accessories to persons under the age of 18 – unless it was an “authorised product” (essentially, a nicotine cessation product) (s 22).

Following amendments, it will now be unlawful to purchase e-cigarettes on behalf of minors (s 23), and as with tobacco products, police officers will have the power to seize e-cigarettes from minors (s 26).  In addition, the E-cigarette Amendment creates an offence for using an e-cigarette in a motor vehicle when persons under the age of 16 years are present (s 30).

The E-cigarette Amendment also restricts the advertising of e-cigarettes:  In particular:

• It prohibits point-of-sale advertising of e-cigarettes, requires e-cigarettes (like tobacco generally) to be available for sale from only one point of sale within premises, and prohibits sale of e-cigarettes by mobile vendors and from market stalls and other temporary enclosures (s 8A, affecting ss 9-11);
• It extends the location controls that apply to tobacco vending machines to e-cigarette vending machines (ss 12-15);
• It extends restrictions on the advertising and promotion of tobacco products to e-cigarettes (s 15A, affecting ss 16-21). These include prohibitions on e-cigarette advertising, prizes and gifts, free samples, sponsorships and shopper loyalty programs.

The E-cigarette Amendment picks up amendments proposed by both the Labor opposition and the Greens.  However, the government has refused to extend the provisions of the Smoke-free Environment Act  2000 to e-cigarettes, despite a Newspoll survey showing 70% support for this.

E-cigarettes: coming to a restaurant (or childcare centre) near you?

According to NSW Health Minister Jillian Skiner MP, the government’s e-cigarette legislation seeks to find a balanced policy response that “mitigates risks but does not exclude the potential for electronic cigarettes to act as a smoking cessation device” (communication from the Hon. Jillian Skinner MP, Minister for Health, 13 April 2015).

As a result, and subject to discussion of poisons legislation below, NSW law does not prevent users of e-cigarettes from getting their nicotine fix on trains and buses, in school, university classrooms, child care centres, hospitals, shopping centres, museums, theatres and cinemas, restaurants, bars and cafes, and…Parliament.

Ironically, Greens MP Jeremy Buckingham was called a “disgrace to the place” by a government MP when he vaped an e-cigarette in Parliament to draw attention to these omissions.  Ouch.

Extending smoke-free tobacco controls to e-cigarettes would have been logical and prudent, given the conclusion of Grana, Benowitz and Glantz that:

Although data are limited, it is clear that e-cigarette emissions are not merely “harmless water vapour” as is frequently claimed, and can be a source of indoor air pollution.  Smoke-free policies protect nonsmokers from exposure to toxins and encourage smoking cessation….Introducing e-cigarettes into clean air environments may result in population harm if use of the product reinforces the act of smoking as socially acceptable or if use undermines the benefits of smoke-free policies”.

In contrast to NSW, amendments to Queensland’s Tobacco and Other Smoking Products Act 1998 (Qld) expand the term “smoking” (as defined in the Dictionary of the Act) to include the use of an e-cigarette.  E-cigarettes are defined as “personal vaporisers” and related products in the Qld Act.  As a result, the prohibitions on smoking in “smoke-free enclosed places”, “smoke-free motor vehicles”, and “smoke-free outdoor places”, also apply to using e-cigarettes in these places.

Is possession, use and sale of e-cigarettes lawful?

To the extent that they contain nicotine, the E-cigarette Amendment does not legalise possession or sale of e-cigarettes in NSW.

Nicotine is a poison and is regulated in Australia under the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP), a federal standard that has been incorporated into State and Territory Poisons Acts.

State legislation treats nicotine differently according to whether it is intended for “human therapeutic use” (eg it is a quit smoking aid), or whether it is a recreational nicotine product – in which case it is regulated under Schedule 7 of the Standard.

In NSW, the Poisons and Therapeutic Goods Regulation 2008 (NSW) reg. 20 provides that a person cannot obtain or use recreational nicotine (ie nicotine not for human therapeutic use, veterinary use, or in a smoking product), nor can recreational nicotine be sold unless the person holds an authority under Part 8 of the Regulations.

The evident purpose of these provisions is to forestall the creation of a market for new forms of recreational nicotine.  Currently, the sale of e-cigarettes or cartridges containing nicotine is unlawful in NSW.

A separate issue is raised by s 21 of the Public Health (Tobacco) Act 2008 (NSW), which creates an offence for selling any “toy, amusement or other product that resembles a tobacco product or is packaged to resemble a tobacco product”.  A similarly-worded provision in WA led to the prosecution of an e-cigarette retailer who was selling non-nicotine vaping products.  The case is Hawkins v Van Heereden [2014] WASC 127 .  Van Heereden was fined $1,750.  For more detail on the legal regulation of e-cigarettes in Australia, see this paper by Healther Douglas, Wayne Hall and Coral Gartner.

Ambiguous signals

So what position have we reached with e-cigarettes in NSW?  Let’s summarise.

In defending the decision by the Baird government not to extend smoke-free legislation to e-cigarettes, NSW Health Minister Jillian Skinner has said that the “jury is still out” on whether e-cigarettes might function as a harm minimisation or stop-smoking aid.  No one is seriously arguing that the vaping community is sucking away on nicotine-free e-cigs; in fact, it’s reasonable to assume that the appeal of these products lies partly (if not wholly) in their capacity to relieve nicotine cravings.  Rather oddly, it seems that that’s OK with the NSW government, notwithstanding its own poisons legislation.

If evidence shows that e-cigarettes are an effective quit smoking aid, it is not beyond the capacity of legislatures to authorise their supply and use by established smokers.  Appropriately so.  But that’s not what the vocal vaping community want, less still e-cigarette manufacturers (and the tobacco giants that are stalking them).  The latter want to expand the market for recreational nicotine use.  That’s how they’ll make money.  The merits of creating such a market is the issue that legislatures around the world are currently facing.

Here’s a scenario for you.  You go out to dinner and score a seat close to a couple who are vaping up a fog at the table next to you.  Or your 3 year old starts playing with the electric shaver-sized vaping thingo the childcare worker was sucking on but left in the playroom by mistake.  Or Jeremy Buckingham starts disgracing himself again in Parliament. Oh, the disgrace.

These scenarios don’t seem all that far-fetched, given the mixed signals the NSW government is sending out on e-cigarettes.

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