On 9 September 2014 the Queensland Government proposed amendments to the State's smoking laws (Tobacco and Other Smoking Products Act 1998 (Qld) (Tobacco Act)) which, if introduced, will make personal vaporising devices1 such as "e-cigarettes" subject to the same regulations as cigarettes and tobacco products from 1 January 2015.
Queensland would be the first state to legislate for e-cigarettes as there are no specific regulations for e-cigarettes anywhere in Australia. The new laws have been criticised for being "nanny state" and premature in the absence of conclusive evidence on e-cigarettes.
In this Alert, Partner Michael Hansel and Associate Katherine Hammond explain the current e-cigarette regulatory regime and the proposed new laws, and discuss the concerns with and justifications for e-cigarette use identified by the World Health Organisation.
Key points
- Queensland will be the first state in Australia to regulate e-cigarettes following the release of a report by the World Health Organisation (WHO).
- E-cigarettes will not be explicitly banned but cannot be sold or supplied to minors, advertised for sale, or used in smoke-free places (where traditional tobacco smoking is prohibited).
- Combined with the existing laws prohibiting the sale and advertising of nicotine, it will not be legal in Queensland to sell or advertise e-cigarettes containing nicotine without approval.
- E-cigarettes are touted as a 'quit- smoking aid' although there is currently insufficient evidence about their effectiveness or the health implications. E-cigarette use may be a gateway to smoking and may undermine efforts to denormalise smoking. As such the WHO says that e-cigarettes represent an "evolving frontier filled with promise and threat for tobacco control".
Currently restrictions relating to e-cigarettes in Queensland are limited to the prohibitions on the sale, possession and advertising of nicotine (where it is not in a preparation for human therapeutic use or a traditional tobacco product) under the Health (Drugs and Poisons) Regulation 1996 (Qld) (Poisons Regulation), and the restriction on supplying a product resembling a tobacco product under the Tobacco Act.
In the landmark case of Hawkins v Van Heerden2 in April this year, a man was convicted under the Western Australian prohibition on selling a product designed to resemble a tobacco product for selling e-cigarettes. Recently in Queensland a man plead guilty to charges under the Poisons Regulation of possessing and advertising for sale, liquid nicotine which was being use for e-cigarettes.
The proposed new e-cigarette laws will mean that e-cigarettes (along with all other personal vaporising devises) will not be explicitly banned but cannot be sold or supplied to minors, advertised for sale, or used in smoke-free places (where traditional tobacco smoking is prohibited). Combined with the existing laws prohibiting the sale and advertising of nicotine, it will not be legal in Queensland to sell or advertise e-cigarettes containing nicotine without approval.
E-cigarettes are electronic nicotine delivery systems which generally look like cigarettes and are designed as an alternative to tobacco smoking as they mimic both the personal experience and public performance of smoking.
E-cigarettes work by heating a liquid (the "e-juice"), which usually (but does not necessarily) contains liquid nicotine, into a vapour for inhalation into the user's lungs. The device typically consists of a battery, an electronic heating element, and a cartridge containing chemicals such as propylene glycol, vegetable glycerine, liquid nicotine and flavourings. They do not contain tobacco or produce smoke.
The proposed new laws follow the recent release of the World Health Organisation's (WHO) report on e-cigarettes (WHO Report)3.
The WHO Report identified that since 2005, the e-cigarette industry has grown from one manufacturer in China to an estimated US $3 billion global business with 466 brands and almost 8,000 different flavours and that it is a market in which the tobacco industry is taking a greater stake.
On one hand there is concern they will serve as a gateway to nicotine addiction and ultimately, smoking, particularly for young people. The WHO report says that experimentation with e-cigarettes is increasing rapidly among adolescents. The Queensland Government is concerned that unrestricted availability to children, retail advertising and display and use in smoke free places of e-cigarettes risks a return to smoking becoming popular and desirable especially to youth.
On the other hand e-cigarettes are marketed by manufacturers as aids to quit smoking, or as healthier alternatives to tobacco as they do not contain the multitude of deadly chemicals (apart from nicotine) and carcinogens that traditional tobacco cigarettes do. There is potential for e-cigarettes to be developed into a nicotine replacement product under the therapeutic goods regime.
However the WHO Report found there is currently insufficient evidence to conclude that e-cigarettes help users quit smoking and the scientific evidence regarding short and long term health effects of direct or indirect (second-hand) inhalation of vapour from e-cigarettes remains inconclusive. The WHO Report found that there was sufficient evidence to warn children, adolescents and pregnant women not to use them.
Consequently the WHO Report states that e-cigarettes represent an "evolving frontier filled with promise and threat for tobacco control" and has recommended a two-pronged regulatory strategy – regulating e-cigarettes both as a tobacco product and as a medical product (therapeutic good).
In particular the WHO recommended immediate regulation to restrict advertising and use in smoke free places (which the Queensland Government is proposing to do under the new laws).
For e-cigarettes to be sold as a quit-aid or nicotine replacement therapy product, they will need to be approved by the Commonwealth Therapeutic Goods Administration. It remains to be seen whether there will be further regulation of e-cigarettes in Australia as a therapeutic good.
[The above is general information only and is not intended to be legal advice.]
Footnotes
1Also referred to as "electronic cigarettes", "vape pens", "electronic nicotine delivery systems" (ENDS)).
2Hawkins v Van Heerden [2014] WASC 127.
3'Electronic nicotine delivery systems', Report by WHO dated 21 July 2014 at the World Heath Organisation Framework Convention on Tobacco Control
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