A recent post reviewed the tobacco control innovations introduced into Australia through the Public Health (Tobacco and Other Products) Act 2023 (Cth).
New Zealand was legislating world-leading innovations of its own around the same time, although their purpose and design contrast sharply with tobacco control measures in Australia.
If Australia’s legislation is best seen as another incremental step towards a tobacco free future, New Zealand’s legislation was an attempt to legislate that future, including through whole-of-life bans for members of the “tobacco free generation”, through denicotinisation, and other “tobacco endgame” strategies.
This post briefly reviews the relevant legislation in New Zealand (note: it was repealed in 2024) and also considers recent comparative tobacco endgame legislation in the UK and USA.
Legislating a smoke free generation: Will the UK succeed where NZ failed?
Sitting at the heart of the Tobacco and Vapes Bill, which received overwhelming support in the UK House of Commons and is expected to receive royal assent in due course, are provisions that would create an offence for selling a tobacco product to – or purchasing a tobacco product for – a person born after 1 January 2009.
The penalties for sale of tobacco products would become applicable after 1 January 2027, when a person born after 1 January 2009 reached 18 years: see s 175(3).
The smoke free generation provisions in the Tobacco and Vapes Bill would not apply to vapes, and the UK Bill does not aspire to create a nicotine free generation.
[For more information on the smoke free generation provisions in the UK Bill, see the following provisions in the Bill as passed by the House of Commons: ss 1-2 for England and Wales, s 49 for Scotland (amending the Tobacco and Primary Medical Services (Scotland) Act 2010 asp 3, s 4)), and ss 68-69 for Northern Ireland (amending arts. 3, 4A of the Health and Personal Social Services (Northern Ireland) Order 1978).
The Tobacco and Vapes Bill, including its smoke free generation provisions, was first introduced in March 2024 by Rishi Sunak’s conservative government; however, the Bill failed to pass before the 2024 UK elections. After the Labour party, led by Sir Keir Starmer, won the 2024 election, the King’s speech foreshadowed a Bill to “progressively increase the age at which people can buy tobacco and impose limits on the sale and marketing of vapes”.
If the Tobacco and Vapes Bill passes, it will be the second example of a large, English-speaking jurisdiction passing a tobacco sales ban based on one’s date of birth.
The first was New Zealand.
Recently implemented by the Maldives, Tasmania’s Parliament also debated a tobacco free generation Bill back in 2014, although it never passed.
Tobacco free generation legislation elsewhere
The aspiration to create a smoke free – or indeed a nicotine free – generation, one year at a time, is perhaps the best-known example of a “tobacco endgame strategy”, although it is not the only one.
See, in particular, papers by Berrick (here, here, and here), who has long advocated for the tobacco free generation concept.
In the United States, a Bill to ban sales of both tobacco products and vapes to a person, based on their date of birth, has been introduced into Hawaii’s Senate over several years, although its progress seems uncertain. See, most recently, SB429 (2026), and here for the legislative text.
Building on its pioneering local government ban in Brookline, and other municipalities, a tobacco and nicotine free generation bill was recently introduced at State level in Massachusetts: see here.
Other local governments have gone even further: Two Californian cities, Beverly Hills, and Manhatten Beach, passed local laws that took effect from 1 January 2021 prohibiting the sale of tobacco products absolutely; that is, to anyone.
Tobacco endgames in New Zealand
In 2022, New Zealand’s Parliament passed the Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Act 2022 (NZ) which introduced a legislative framework for three key tobacco endgame policies.
Firstly, the 2022 Act introduced ss 40A-40B into the Principal Act. These provisions would have created a tobacco-free generation by prohibiting sale or supply of tobacco products (although not vaping products) to persons born after 1 January 2009.
- New Zealand’s tobacco free generation
The provisions would have come into effect from 1 January 2027, when persons born 1 January 2009 reached the age of 18 and otherwise became eligible to purchase tobacco.
These tobacco-free provisions were introduced as part of a broader tobacco endgame strategy that authorised:
- an upper numerical limit and then a sinking lid on the number of tobacco retailers in New Zealand, together with
- a maximum limit for nicotine in smoked tobacco products as part of a strategy of denicotinisation.
However, in November 2023, New Zealand held an election and the new government (a coalition of the National Party and the populist New Zealand First Party) announced that it would repeal the Tobacco Free Generation legislation to help fund tax cuts.
The following year it did so.
[The Smokefree Environments and Regulated Products Act 2024 (NZ) s 29, repealed ss 22-26 of the Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Act 2022, including s 22 which had inserted ss 40A-40B into the Principal Act [Smokefree Environments and Regulated Products Act 1990 (NZ)]
These actions caused widespread dismay among tobacco control advocates, and have generated some interesting commentary and research; see here, here, here, and here.
- A sinking lid on smoked tobacco retailers
Amendments introduced in 2022 to the Smokefree Environments and Regulated Products Act 1990 (NZ) prohibited sales of smoked tobacco products other than by an approved (smoked tobacco) retailer (s 20G).
Applicants wishing to sell smoked tobacco products after 30 June 2024 were required to apply to the Director-General and to be granted approval to become an approved smoked tobacco retailer.
The Director-General was empowered to cancel the approval if the retailer failed to comply with their obligations under the Act or with a condition of their approval (s 20K).
Under 20M, the legislation envisaged that the Director-General could determine a cap on the number of smoked tobacco retailers “in one or more areas described in the notice (which may include all of New Zealand”). Separate to this, the legislation imposed a cap of 600 approved smoked tobacco retail premises across the country (s 20M(2)).
The legislation also authorised the Director-General to impose a “sinking lid” that would reduce the maximum number of approved smoked tobacco retailers over time: s 20M(3).
The legislation also required a vape retailer to apply for approval to become what the legislation called a “specialist vape retailer” (s 20P).
Sensibly, the legislation required at least 60% of total sales from the retail premises of a specialist vape retailer to be from vaping products, thereby preventing the proliferation of vape retailers in corner stores, petrol stations and supermarkets.
These requirements were also repealed in 2024 by the Smokefree Environments and Regulated Products Amendment Act 2024 (NZ) s 9, which repealed Part 1B from the Principal Act].
While there is no longer any upper limit on the number of tobacco retailers in New Zealand, Australian researchers have continued to advocate for the strengthening of tobacco licencing laws (including nationally consistent licensing standards: see here and here), and in particular for dramatic reductions in the number of licensed tobacco retailers: here and here.
- Denicotinisation of tobacco products
Another tobacco endgame strategy that has been discussed in the literature is a policy of denicotinising tobacco products, or reducing the amount of nicotine they contain to non-addictive levels.
In 2022, the NZ Parliament inserted provisions (into Part 3A of the Smokefree Environments and Regulated Products Act 1990) creating an offence for selling smoked tobacco products that contained a quantity of any constituent that exceeded the limit set in the Regulations (s 57F).
The legislation required annual testing of constituents in smoked tobacco products (s 57G) and also authorised the Director-General to require that a smoked tobacco product be tested (s 57H)
Section 57I then imposed a maximum limit for nicotine of 0.8mg/g.
This cap on nicotine levels was also specifically repealed in 2024.
[S 12 of the Smokefree Environments and Regulated Products Amendment Act 2024 repealed 57I of the Smokefree Environments and Regulated Products Act 1990 (NZ).]
Regulations issued in 2023 had also imposed a ban on synthetic nicotine (61A) but this ban was also repealed in 2024 [by s 35 of the Amending Act].
So, for the moment, moves towards denicotinisation in New Zealand are dead.
What about elsewhere?
Denicotinisation in the US
In July 2017, the FDA Commissioner (Scott Gottlieb) foreshadowed that FDA would develop a Comprehensive Plan for Regulating Tobacco and Nicotine.
“We need to envision a world where cigarettes lose their addictive potential through reduced nicotine levels” he said.
Gottlieb described a policy approach to make cigarettes minimally or non-addictive, but without altering nicotine levels in e-cigarettes, as the “cornerstone” of FDA’s approach under his leadership.
Gottlieb’s strategy was to use FDA’s power to set tobacco product standards to migrate smokers to non-combustible tobacco products that were hopefully safer yet would continue to deliver satisfying nicotine yields.
Federal legislation [§907(d)(3) of the Family Smoking Prevention and Tobacco Control Act] prevents FDA from eliminating nicotine from cigarettes.
But it doesn’t prevent FDA from setting a maximum level that falls below the level needed to sustain addiction, or a level that is substantially lower than for non-combustible tobacco products.
In 2018, FDA took steps towards denicotinisation, issuing an Advance Notice of Proposed Rulemaking that sought public input about a tobacco product standard setting a maximum level of nicotine in cigarettes.
This initiative attracted 7,700 comments but was thrown into doubt when former Commissioner Gottlieb resigned in 2019.
The policy was resurrected in June 2022, when the Biden administration announced plans to develop a new product standard setting a maximum nicotine level in cigarettes.
The proposed Rule was finally published on 16 January 2025, four days before President Trump’s inauguration.
The draft rule set a limit of 0.7mg of nicotine per gram of tobacco, a dramatic reduction from the current average of 17.2mg across the top 100 US brands.
FDA’s proposed limit would be based on nicotine content per gram of tobacco, as distinct from a measure of nicotine yield using a smoking machine.
The nicotine ingested by a smoker may vary significantly from the nicotine yield registered by a smoking machine, depending on the smoker’s compensatory behaviour (eg puffing harder and more often).
Clearly, the denicotinisation of American cigarettes could have a significant impact on the American economy – potentially greater than $100 million.
Administrative rules that cross this threshold are considered to be “significant regulatory action”, triggering mandatory review by the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget, an agency within the Executive Office of the President.
So far, the Trump administration (the OIRA) has not killed off the FDA’s denicotinisation proposal, although its prospects remain uncertain.
On the other hand, the OIRA did promptly dump another proposed rule that would have prohibited the use of menthol as a flavouring in cigarettes.
The FDA’s menthol ban – the outcome of a torturous 15-year process – was withdrawn by OIRA the day after President Trump’s inauguration.
Federal tobacco control has been significantly weakened under the leadership of Robert F. Kennedy Jr., President Trump’s Secretary of Health and Human Services.
For example, the Office on Smoking and Health within CDC was eliminated, while staff at the Center for Tobacco Products within the FDA were fired, only to be re-hired.
So, temper your expectations on denicotinisation in the United States.
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