On 2 May 2023. The Government has announced a sweeping new measure to ban vapes for recreational use.

Following public consultation led by the Therapeutic Goods Administration in December 2022, the government is proposing stronger regulation and enforcement actions on e-cigarettes. The Federal government will work with the states and territories to:

·         Stop the import of non-prescription vapes;

·         Increase the minimum quality standards for vape by restricting flavors, and colours and ingredients.

·         Introducing requirement for vapes to have Pharmaceutical Packaging;

·         Reduce the allowed nicotine concentrations and volumes;

·         Ban all single use, disposable vapes.

The Government will also work with the states and territories to eliminate the sale of vapes in convenience stores and other retail settings.

It should also be noted that this ‘proposed ban’ is not new. State regulations had been put in place regarding the sale, display and advertising and promotion of vapes for years.  

IN NSW, Vapes and E-cigarettes are governed as such:

1.    The Smoke-free environmental Act 2000 prohibits people from using electronic cigarettes in smoke-free areas. The Maximum penalty rate is 5 penalty units being a fine of $550.00.

2.    Under the NSW Public Health (Tobacco) Act 2008, it is illegal to sell e-cigarettes to person under 18, to buy on behalf of a person under 18 and illegal to display, advertise or promote e-cigarettes. They also cannot be sold from a market stall, stand and cannot be given as a free sample.

3.    Under the current Act, e-cigarettes that do not contain nicotine are legal in NSW for persons over 18 whilst e-cigarettes containing nicotine are prescription only medicine.

Similar legislations are also in place in Queensland and other states and territories. As recent as 11 May 2023, a Brisbane convenience store pleaded guilty to two charges of possession and sale of personal Vapes and e-liquids containing nicotine. These charges were heard before the Magistrates Court and lead to a hefty $88,000 fine.

The current regime has not been effective and has been poorly enforced, leading to an almost open black market in the sale of vapes, liquids and pods, often to minors. This ultimately resulted in the sweeping announcement by the federal government.

The Government has pledged $737 million in its 2023- 2024 budget to fund the overall measure and within that, a $63 million public health information campaign to discourage Australians from using vapes and smoking other than for legitimate pharmaceutical purpose.

The Federal Minister for Health and Aged Care Mark Butler stated:

“Vaping was sold to governments and communities around the world as a therapeutic product to help long-term smokers quit. It was not sold as a recreational product…”

While the efficacy of the new legislation is yet untested, its impact will be significant.

General Public: The crackdown will not target the general public that purchases Vapes for personal use. However, the government’s goal is to ensure that people will no longer be able to purchase vapes (including non-nicotine vapes) sold at convenience stores or other non-pharmaceutical retailers as there will be stronger enforcement actions to stamp out illegal sale.  

Importers and Retailers: The government’s new proposal will stop all vape imports at the border other than those bound for pharmacy or pharmaceutical use. Importers who wish to import vapes will need to obtain a permit and show that the vapes they propose to distribute complies with the new quality standards and packaging prescribed by the Therapeutic Goods Administration, and that it be distributed to pharmacies only. Currently, under the NSW Public Health Act 2008, an E-cigarette retailer must register their business details with NSW health. Retailers in all Australian states and territories under this new proposal will not be able to sell any vapes, regardless of the nicotine content or age of the purchaser or if they had registered with the government and therefore there will be an immediate impact on a vast number of retailers currently stocking and selling these products.

If you have any concerns regarding your retail or import business, please feel free to contact the experienced lawyers at Longton Legal for an initial consultation.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.