Vaping law reform: Protecting the Pacific

This post was written by Sophia Bleakley, Clare Gim and Helen Zhang

Vaping is on the rise and governments are scrambling to respond. We have seen NSW rolling out reforms as the vaping black market proliferates to the growing detriment of public health. Struggles abound with our complex legislative regime and the embedded culture of vaping that has set its roots here.

But what about our neighbours, and the lessons they can learn from us?

Pacific Island Countries and Territories (PICTs) are facing an emerging battle with vaping rates, especially amongst the youth. However, unlike Australia, comprehensive vaping regulation has not yet been developed. Rather, PICT governments are in the process of looking towards their regulatory options and formulating the most appropriate response to vaping and its increasing popularity.

Recently, Sydney Health Law, Sydney Law School’s health law centre, hosted three students to research and advise on potential vaping regulation options in PICTs. The interns completed a desktop review of existing e-cigarette regulation in PICTs, Australia, New Zealand, and the United Kingdom, in order to provide recommendations to the Public Health Division of the Pacific Community (SPC) on how best to support national legislation in PICTs. These recommendations were designed to inform the development of the Pacific Legislative Framework for Non-Communicable Diseases, an initiative led by SPC that is assisting PICTs to update and strengthen their public health legislation.

Desktop review findings

PICTs

Tobacco control legislation in PICTs varied in its treatment of tobacco cigarettes, nicotine e-cigarettes and non-nicotine e-cigarettes. Only 6 of 22 PICTs had tobacco control legislation which applied to non-nicotine e-cigarettes. These were:

• Fiji,
• Guam,
• New Caledonia,
• Niue,
• Palau, and
• Samoa.

A further 2 countries had tobacco control legislation which referred to e-cigarettes, but not non-nicotine e-cigarettes – the Commonwealth of the Northern Mariana Islands and Papua New Guinea.

Four of these 22 PICTs had total or partial bans on e-cigarette use. Palau was the only country with a total ban on the use and distribution of e-cigarettes, and each of French Polynesia, Guam, and New Caledonia had partial bans on e-cigarette use. This left 14 PICTs which currently did not regulate e-cigarettes.

Overall, the legislative review revealed that only a minority of PICTs have implemented legislation tackling the rising public health threat of vaping. Further, even in those PICTs that have implemented legislative controls on vaping, regulatory gaps remain, particularly for non-nicotine and synthetic nicotine e-cigarettes.

Australia

In Australia, the legislative framework for e-cigarettes spans federal and state/territory laws – diverse in form but with one focus on blocking recreational nicotine use. Vapes containing nicotine are only accessible through three schemes regulated by the federal government, all of which require a prescription from a medical practitioner.

Yet reality does not always reflect the letter of the law – vapes can be seen at every corner store, vape shop, strewn on the streets or glittering in the hands of high school students. Despite prohibitions on the sale of e-cigarettes to minors, vaping rates among 14-17 year olds were up from 2% in 2020 to 14.5% in the first quarter of 2023.

Why has recreational vaping among the youth been so difficult to contain?

Tobacconists exploit a loophole in the law where non-nicotine e-cigarettes are free from nicotine control laws. Without laboratory analysis to check every batch of vapes, tobacconists can sell nicotine e-cigarettes as non-nicotine e-cigarettes, effectively bypassing the prescription controls.

New Zealand and the United Kingdom

Beyond the pond, our neighbours in New Zealand present another stance on e-cigarettes. Here, e-cigarettes are not potential harms but potential tools for the eradication of tobacco smoking. The regulatory framework reflects this intent with noticeably modest controls on the access and availability of vapes in comparison to Australia. Where there are restrictions, they focus on protecting the public and young people from vaping.

Similarly, e-cigarettes are widely available and used in the United Kingdom (UK) as a consumer product. UK regulations revolve around product safety and quality standards rather than limiting use and access, as is the case in Australia.

Both in New Zealand and the UK, the liberalised controls on vaping reflect a harm reductionist approach to tobacco smoking. Public health agencies like the Medicines and Healthcare products Regulatory Agency (MHRA) have encouraged the use of nicotine e-cigarettes as a tool for smoking cessation and the UK government has provided “vape starter kits” to urge smokers to make the switch. It follows from harm reductionist logic that it is better for addicted smokers to switch to e-cigarettes with less proven harms than to require abstinence from nicotine. This approach puts them at odds with tobacco control traditionalists, who recognise that e-cigarettes carry their own health risks, are addictive and can act as a gateway to tobacco smoking.

Despite differing policies towards e-cigarettes, each government is scrambling to respond to a burgeoning health crisis among the youth.

Mark Butler, the Australian Minister for Health, announced key reforms to the legislative regime to stamp out the illicit trade of vapes in 2024. These include a ban on the importation of single-use disposable vapes, a ban on the importation of non-therapeutic vapes and the closure of the Personal Importation Scheme, which was one of the three pathways through which nicotine vapes were accessible. Yet the illicit trade of non-therapeutic nicotine vapes will likely continue to plague enforcement officers so long as the differential treatment of nicotine and non-nicotine vapes persists.

New Zealand has targeted the heavy marketing of vapes to young people in their recent reforms with bans on vibrant and appealing flavour descriptions like “strawberry jelly doughnut”. New regulations also prevent specialist vape shops from being set up within 300 meters of schools but they do not mandate the closure of existing vape shops within that radius.

Although the UK has not yet enacted legislation, the government has foreshadowed a ban on fruit flavours, extra taxes on e-cigarettes, the introduction of plain packaging and restricting the display of e-cigarettes.

In each case, regulations are gradually tightening across jurisdictions as a culture of vaping, especially among the youth, continues to develop.

Recommendations

The interns developed three recommendations for e-cigarette regulation in PICTs:

1. PICTs should apply a complete ban on the sale, distribution, importation and manufacture of e-cigarettes;
2. This ban should adopt an exhaustive definition of e-cigarettes, which:
   1. does not distinguish between e-cigarettes which contain nicotine and those which do not contain nicotine; and
   2. includes all forms of nicotine, whether derived from tobacco or synthetically; and
3. PICTs should consider the feasibility of conducting a survey on current e-cigarette use in PICTs.

Justifications

These recommendations were informed by five considerations:

1. the impacts of an e-cigarette ban on health,
2. the impacts of an e-cigarette ban on smoking rates,
3. enforcement burdens for PICTs,
4. international trade obligations, and
5. the impacts of an e-cigarette ban on the environment.

The ban on e-cigarettes is designed to protect the health of Pacific Islanders. Although e-cigarette proponents argue there is a lack of long-term data demonstrating the health risks of e-cigarette use, these products remain relatively new to the market. Short-term data is available in abundance (for example, see here and here), and it shows a whole range of negative impacts on health caused by vaping.

Further, the ban is designed to reduce smoking rates in PICTs, in response to evidence of nicotine e-cigarette usage causing nicotine dependence in non-smokers and therefore acting as a gateway to, rather than management tool for, tobacco smoking.

On a practical level, a total ban on e-cigarettes reduces the enforcement burden for PICTs, by applying only at the stage of import into each country. This is because there is currently no domestic manufacture of e-cigarettes in PICTs.

In relation to international trade obligations, there exists some academic disagreement as to whether total and/or partial bans on e-cigarettes contravene international trade law. This was relevant to the five PICTs which are member countries of the World Trade Organisation (WTO): Fiji, Papua New Guinea, Samoa, the Solomon Islands and Vanuatu. Despite this potential risk, the interns maintained their recommendation for a ban on e-cigarette use, because similar bans are in place in 33 member countries of the WTO, and the WTO has not publicly condemned or expressed concern regarding these bans.

Finally, a total ban on e-cigarette use carries the additional benefit of minimising the ‘triple environmental threat’ posed by e-cigarettes to PICTs: chemical waste from nicotine in e-cigarette fluid; plastic waste from single-use cartridges; and electronic waste from circuit boards and batteries in e-cigarettes.

Summary

As the negative health and environmental effects of e-cigarettes become increasingly evident, regulatory action in PICTs is vital. Some PICTs have already taken the leap and implemented partial or total bans on vaping products, but legislative action across the region is necessary to avoid the proliferation of vaping.

Drawing on lessons learnt from comparable jurisdictions, a total ban is likely to be the least burdensome to enforce and the most effective way of protecting public health. Commitment to a total ban, in the face of the threat vaping poses, may be the wisest path to take.