By Eric Crampton 16/04/2018


The Fairfax papers have a good summary out today of what’s going on in vaping – as of a month ago.

They write:

When British public health experts first said vaping (using e-cigarettes) poses only a fraction of the health risk of tobacco smoking, the trend surged in popularity around the world, including in New Zealand.

But it remains illegal to sell or manufacture nicotine juices, or devices here. So how come there are shops openly touting vaping products containing nicotine?

THE LEGAL VACUUM

Currently, it’s legal to import juices containing nicotine, but only enough for personal use. Nicotine juices and devices, however, still cannot be legally sold in New Zealand.

But anyone who vapes knows stores sell those products anyway, and aren’t likely to get prosecuted. Basically, the law just isn’t enforced.

But I don’t know that that’s right anymore.

Let’s put up a giant caveat here first though. I Am Not A Lawyer. This Is Not Legal Advice.

The Court decision in the Philip Morris case on their Heat-Not-Burn said that the SmokeFree Environments Act [SFEA] doesn’t apply to oral tobacco products unless they are used in a manner sufficiently similar to chewing. That’s the bit that was used previously to block the sale of vaping and Heat-Not-Burn.

Unless the Medicines Act restrictions on nicotine are read as applying to nicotine formulations used in vaping – and nobody seems to know whether it should be read that way – vaping and sale of all the associated kit is legal in New Zealand.

And it’s also important that the judge said that the restrictions on reduced-harm products were contrary to the purpose of SFEA. I expect that means that that same judge would not look kindly on back-door efforts to bring stuff back under SFEA – or on other attempts to sue manufacturers and distributors of reduced-harm products through plain packaging rules and the like.

That’s it on the law stuff. Was a bit surprised that it wasn’t mentioned in the piece. But we still have a ton of uncertainty out there. Nobody knows if the Ministry will appeal. Whether or not it appeals, it can still choose to implement a regulatory framework for reduced-harm devices. And Nicky Wagner’s member’s bill is sitting in the ballot that would bring vaping back under the SmokeFree Environments Act – that bill was relatively liberal relative to the status quo of a few months ago, but is very restrictive relative to what I think the current status quo is.

Image: Photo by Davide Sibilio on Unsplash