Are these photos the pointy end of tobacco control? Or just another example of what the tobacco industry does best?

Blu electronic cigarettesrecent e-cigarette adwhy quit - switch to Blu

If the e-cigarette industry in Australia has a martyr, his name is probably Vince van Heerden.

More about him in a moment.

Advocates for e-cigarettes claim that they are a healthier alternative to smoking, and provide a ray of hope for desperately addicted smokers.

However, before you make up your mind, look at how e-cigarettes are promoted in countries like the US where they can be freely sold.

I am not a fan of e-cigarettes.  Some of the (highly visual) reasons why are given at the bottom of this post.

The June 2016, the Australian Competition and Consumer Commission (ACCC) took action against two online retailers for suggesting that e-cigarettes do not contain carcinogens and toxic compounds.

Second hand smoke may be more toxic than e-cigarette vapour, but according to a recent review by NSW Health, “passive exposure to EC vapour has the potential to lead to adverse health effects”.

According to the review: “…EC vapour contains elevated levels of nicotine, PM [fine particulate matter], glycerine, propylene glycol, formaldehyde and acetaldehyde, PAHs [polycyclic aromatic hydrocarbons] and metals”.

And that’s putting to one side documented reports of pediatric poisoning and burns from exploding lithium ion batteries in e-cigarettes.

EVO photo

When you see advertisements like this giving tacit permission for parents to vape all over their kids, you realise that the e-cigarette industry craves truth, justice, evidence (and profits) in much the same way as the cigarette industry.

But back to van Heerden.

 

Tale of an e-cigarette martyr?

Van Heerden, an IT professional, ran an e-cigarettes business called “Heavenly Vapours” from his home in Perth, selling e-cigarettes and nicotine-free “e-juice”.

Van Heerden was charged with an offence under section 106 of the Tobacco Products Control Act 2006 (WA).

Section 106 says:

“A person must not sell any food, toy or other product that is not a tobacco product but is…designed to resemble a tobacco product”.

Are e-cigarettes [and vaping hardware generally] “designed to resemble tobacco products”, such as cigarettes and cigars?

The Magistrate didn’t think so, and dismissed the charge.

The WA Health Department appealed.

In van Heerden v Hawkins, Justice Janine Pritchard of the Supreme Court of Western Australian allowed the appeal, convicted van Heerden and later imposed a fine of $1,750.

She also ordered van Heerden to pay the Department’s costs both in the Magistrate’s Court ($5,578), and in the Supreme Court ($ 8,500).

Her Honour noted that van Heerden had set up a webpage seeking donations to fund a further appeal.

That appeal has now run its course.  In March 2016, the Court of Appeal of the Supreme Court of Western Australia unanimously upheld Justice Pritchard’s decision.

You can read the Court of Appeal’s judgment here.

In imposing the fine and making the costs order against van Heerden in June 2014, Justice Pritchard accepted that van Heerden honestly believed e-cigarettes were a “healthy alternative to smoking cigarettes”.  She also noted that conviction under section 106 did not depend on the product that was sold being “harmful to public health”.

 

Why did the Court of Appeal confirm van Heerden’s conviction?

The Court of Appeal judgment provides a helpful primer on the principles of statutory interpretation – especially the judgment of Buss JA [paras 93-103].

The judgments also raise interesting questions for e-cigarette businesses operating in States that have tobacco control laws that are similar to WA’s section 106 (see below).

The most interesting argument raised by van Heerden was that section 106 was not intended to create an offence for the sale of “harm reduction” products that are intended to discourage the use of ordinary cigarettes.

Counsel for van Heerden argued that the prohibition in section 106 should be understood in light of the purposes of the Act, which included “discouraging the use of tobacco products”.

Counsel argued that while cigarette smokers inhale tar and tobacco-related toxins, this is not the case with those who inhale e-cigarette vapour, since electronic cigarettes do not involve combustable tobacco: [90].

Furthermore, “electronic cigarettes compete directly with ‘tobacco products’ on the basis of the ‘substantial and obvious differences between them” [91].

In response, Justice Buss JA pointed out that the purpose of legislation arises from the meaning of the text itself, when considered in context, as distinct from assumptions about “the desired or desirable reach of operation of the relevant provisions” [96].  The context includes the history of the legislation, and the “mischief to which the statute is directed”.

In 2006, when the WA Act was introduced, electronic cigarettes had not yet appeared in Australia.  (It was not until 2007 that Philip Morris began test marketing first generation “heatbar” cigarettes in Melbourne).

heartbar cigarettes

The Court pointed out that legislative provisions that set out the purpose of an Act are certainly relevant to construing the meaning of a statutory words.

If two competing constructions are open, the object or purpose of the legislation, where it is stated, will be relevant to choosing between those meanings.

On the other hand, no such choice arises when the plain and ordinary meaning of the text is apparent [paras 176-182].

In this case, section 106 prohibited sale of food, toys and other kinds of products (not being food or toys) that were designed with the intention of having a likeness or similarity to tobacco products [paras 114-118].

Section 106 did not include a defence if the products sold might be used to assist people to give up or to minise their smoking [para 121].

In other words, section 106 did not exclude products that might be used in ways consistent with “one or more of the express or implied purposes of the Act” [para 137].

Ultimately, the text of section 106 simply didn’t support the argument that Parliament had intended to create a distinction between “products designed to resemble tobacco products” and “products designed to reduce tobacco-related harm” [paras 123-125, 151, 154].

Even if e-cigarettes were properly regarded as harm reduction products, the language of section 106 did not exempt them from the prohibition on sale, given the clear language of the section [para 151].

Accordingly, whether or not e-cigarettes should be exempted from the prohibition in section 106 was a matter for Parliament, not for the courts [para 182].

 

Implications of the van Heerden judgment

With his conviction upheld, Van Heerden has reached the end of the road.

However, van Heerden appears to have raised a substantial sum of money for his legal costs from sympathisers.

Van Heerden’s conviction has interesting implications for retail sales of e-cigarettes in NSW, South Australia, and Queensland, which have similarly worded provisions to s 106.

For example, section 21(3) of the Public Health (Tobacco) Act 2008 (NSW) states that a person must not sell any confectionary, food, toy, amusement or other product “that resembles a tobacco product or is packaged to resemble a tobacco product”.

In Victoria, following a recommendation by the Secretary of the Health Department, the Health Minister is empowered to ban a product or class of products that “is not a tobacco product but resembles a tobacco product” [Tobacco Act 1987 (Vic) ss 15N-15S].

By contrast, in Tasmania and the ACT, the prohibition on sale of products that resemble a smoking or tobacco product applies only to toys or confectionary.

In the Northern Territory, the prohibition on sale of products resembling tobacco products only applies if the product is designed or marketed for consumption by children.

 

Are e-cigarettes the pointy end of tobacco control?

The merits of e-cigarettes should not be judged solely on their safety profile relative to cigarettes.

It is important to also consider evidence of the attractiveness of e-cigarettes to youth, their capacity to act as a gateway to nicotine addiction and later smoking, their observed function in undermining quitting through dual use, their potential to trigger relapse, not to mention their capacity to undermine hard-won social norms about smoke-free environments.

Let’s assume that some individuals do manage to quit smoking with the help of e-cigarettes.  That does not necessarily mean that legalising the sale of e-cigarettes is a good result for public health.

It is possible that e-cigarettes might be “good” for the health of some individuals, while at the same time being “bad” for the health of the population overall.  Such things are possible.

Studies that reach their conclusions about harm minimisation products by comparing the harm between a cohort of smokers and a cohort of e-cigarette users trivialize the complexity of the ways in which e-cigarettes are both pathways to and pathways from nicotine addiction and smoking.

E-cigarette use among high school students has skyrocketed by 900% in the United States, from 1.5% in 2011 to 16% in 2015.

No wonder tobacco companies are buying up e-cigarette companies.  Blu e-cigarettes, for example, was purchased in July 2014 by Imperial Tobacco, the world’s 4th largest tobacco company.

Self-evidently, it makes no sense to Imperial Tobacco to position e-cigarettes in a way that would undermine its “full harm” cigarette business.

There is emerging evidence that e-cigarette use is a risk factor that facilitates smoking.  A recent study of Southern Californian teenagers compared never-smoking e-cigarette users with never-smoking teenagers who had never used e-cigarettes.  Over a 16-month period, more than 40% of e-cigarette users progressed to smoking, and more than 10% of those who had never used e-cigarettes.  However, those who used e-cigarettes had 6 times the odds of progressing to smoking than those who had never used e-cigarettes.

So…are e-cigarettes the pointy end of tobacco control?

Well, let’s do the math.

This is how cigarettes used to be advertised.

springtime

This is how e-cigarettes are advertised now.

springtime 2

 

This is how cigarettes used to be advertised.

old tobacco ad

This is how e-cigarettes are advertised now.

recent e-cigarette ad

 

This is how your doctor and dentist used to advertise cigarettes.

dentistreccomendedLdoctor recommends lucky strike

According to the Huffington Post, in July 2016 a company called Nicoventures – owned, not coincidentally by British American Tobacco – published research claiming that 8 in 10 Australian doctors support the use of e-cigarettes.

BAT has a vaping device that is already licensed as a quit smoking aid in the UK, and available through the NHS.

Perhaps BAT is angling to have their product approved by the Therapeutic Goods Administration in Australia.

Oh dear.  So confusing.  Should we believe anything the tobacco companies say?

Well, perhaps sometimes…

Zero style

Are you interested in health law?  For further information on Sydney Law School’s Master of Health Law and Graduate Diploma programs, follow this link.

California raises the minimum purchase age for cigarettes and e-cigarettes

OLYMPUS DIGITAL CAMERA

Last week was a big week for those who think the law should have a role in helping to reduce the 6 million deaths caused each year by tobacco.

First, tobacco taxes

In 2013, the Rudd government announced a 12.5% increase in the tobacco excise to take effect over 4 years:  1 Dec 2013; 1 Sep 2014; 1 Sep 2015; 1 Sep 2016.

Scott Morrison’s 2016 budget will continue this increase for a further 4 years (2017-2020), taking the price of a pack of 25 cigarettes to around $41 in 2020.

These excise tax increases will be in addition to the usual, bi-annual indexation of excise in accordance with average weekly earnings.

As recognised by the WHO Framework Convention on Tobacco Control, which Australia has signed, tax and price measures are a powerful, cost-effective tool for reducing tobacco consumption, particularly among young people.

Secondly, more wins on tobacco plain packaging

The European Court of Justice has upheld the right of Member States of the European Union to pass plain tobacco packaging laws that exceed the requirements for the standardisation of tobacco packaging contained in the European tobacco products directive.

The Directive includes a requirement for mandatory health warnings, comprising text and colour photographs, covering 65% of the back and front of tobacco packages (Art. 10.1).

Article 24.2 of the Directive preserves the right of member states to introduce further requirements for the standardisation of tobacco packaging “where it is justified on grounds of public health, taking into account the high level of protection of human health achieved through this Directive”.

These further measures must be proportionate, and must not be a disguised form of trade restriction.

The ruling of the Court paves the way for the UK’s tobacco plain packaging legislation (the Standardised Packaging of Tobacco Products Regulations 2015 to become mandatory for all tobacco products on 21 May 2017.

Following Australia’s Tobacco Plain Packaging Act 2011 (Cth), plain tobacco packaging has become an export industry, with Ireland also adopting legislation in 2015.

California raises the minimum purchase age for tobacco

But perhaps the most interesting development is the creeping advancement of higher tobacco purchase laws for tobacco within the United States.

On 4 May 2016, California Governor Jerry Brown signed 2 Bills into law that confirm California’s leadership in tobacco control.

Senate Bill No 7 prohibits the sale of tobacco products in California to persons younger than 21 years.

The Bill includes an anti-pre-emption provision giving freedom to local governments to raise the minimum purchasing age even higher.

With a republican-controlled Congress hostile to public health measures, it has fallen to local and city governments, and to States, to innovate and to protect the health of their populations.

California’s action follows the lead of Hawaii and over 125 local and city governments that have passed legislation to raise the minimum purchase age for tobacco to 21.  This trend is likely to continue, both in the United States, and possibly elsewhere.

The California Bill contains an exception for Military personnel in active duty who are aged over 18 but under 21 years.

This is not the first time U.S. legislatures have bent the rules to facilitate smoking by members of the US armed services.

California Senate Bill No. 5, also signed into law, expands the definition of the term “tobacco products” in the Business and Professions Code to include e-cigarettes, and requires retailers to pay a licence fee to sell e-cigarettes.

It requires all cartridges for e-cigarettes to be in child-resistant packaging;

It also extends the smoke-free controls applicable to cigarettes in California, to e-cigarettes – a regrettable omission in the Public Health (Tobacco) Amendment (E-cigarettes) Act 2015 (NSW).

The California Bill also prohibits selling or advertising or furnishing e-cigarettes to persons younger than 21 years.

Time to raise the minimum purchase age for tobacco in NSW?

Raising the minimum purchasing age for tobacco is a sensible next step towards a tobacco-free generation that is healthier and more productive.

Higher minimum purchasing age laws make sense, since few smokers begin smoking or become addicted to nicotine beyond the vulnerable mid to late teens and early twenties.

A 2013 study of smoking initiation rates in New Zealand confirmed that while initiation after age 24 is rare, the highest initiation rates occur among those aged 15-21 years. Over a four-year period, the rate of smoking initiation for those aged 15-17, 18-19, and 20-24 was 14.2%, 7.0%, and 3.1%, respectively.

An expert Committee of the Institute of Medicine concluded that raising the minimum purchasing age would substantially reduce smoking prevalence and smoking-related mortality, given the numerous life transitions young adults experience between 18 and 20 years.

It could also help to improve foetal, maternal and infant health, by reducing the numbers of young parents smoking.

The Tasmanian Government has released a 5-year strategic plan for health that includes raising the minimum legal smoking age to 21 or 25 as an option for consideration.

Such laws could help to reduce health inequalities.  For example, according to Tasmania’s Council of Obstetric and Paediatric Mortality and Morbidity, more than 33% of Tasmanian teenage pregnant women are smokers (2013 figures).

Raising the minimum purchase age for tobacco would not be costly to implement, although resources should be budgeted for its enforcement, and this includes close monitoring and evaluation of its net effects.

Think about it.  Will there be any parents, including smoking parents, who wish their child had been able to buy smokes on their 18th birthday?

Conversely, how many 30 year olds – facing the economic challenges of life, including breaking into the property market – will be thankful they missed the bullet of nicotine addiction and aren’t now making generous weekly donations to Australia’s tobacco giants?

Are you interested in studying health law?  Sydney Law School offers a Graduate Diploma and a Masters degree in health law that is open to qualified applicants.  For further details, click here, and here.

Mixed signals on e-cigarettes in NSW

Retail display of vaping products in a shop in Westfield Shopping Centre, Chatswood, Sydney, in 2014
Retail display of vaping products in a shop in Westfield Shopping Centre, Chatswood, Sydney, in 2014

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.

Are you interested in health law?  For further information on Sydney Law School’s Master of Health Law and Graduate Diploma programs, follow this link.