Australia has introduced possibly the world’s toughest anti-vaping laws
Thursday, August 8, 2024.
Source: Unsplash.
On July 1, what international media have described as the “world’s toughest anti-vaping laws” came into effect in Australia. The laws are less tough than they might have been after the Greens amended the government’s proposed legislation.
Confusingly, the laws will be tougher for the first 3 months they are in force. Until October 1 it will be illegal to sell any vapes (with or without nicotine) except on prescription. After October 1 it will be possible to buy vapes without prescription in pharmacies, if pharmacies want to sell them. It is by no means certain that they do.
Why the sudden change in laws?
The need for law reform around vaping in Australia is not in dispute as existing laws were out of kilter with reality. Unprescribed nicotine-containing vapes and vape juice have been illegal in Australia since 2009 but they’re widely available across the country in servos, tobacconists and convenience stores. All it takes is strolling up to the counter and asking what vapes are available. In most cases, a vendor will produce a hidden second menu with the nicotine vapes. Research by journalists, academics and state health authorities has also suggested that “nicotine-free” vapes, which were legal until recently, routinely contain nicotine.
These revelations would not have caused much surprise among vapers. Many are former smokers who adopted vaping either as a safer alternative to cigarettes or as a tool to reduce nicotine intake on the path to quitting.
Lack of regulation has caused some unnecessary harms. For example, a 2019 study discovered that most vapes on sale in WA contain the chemical 2-chlorophenol, which is highly toxic and used in insecticides, herbicides and disinfectants.
Adulteration or substitution with harmful substances is a common problem in illicit drug supply. Prohibitionists often seize upon harms caused by contaminants. In 2019, an outbreak of a rare lung disease among young people in the US caused 60 deaths. It was linked to contaminants in illicit cannabis vapes. This outbreak is regularly cited by those arguing incorrectly that vaping is more dangerous than smoking. However, it is the criminalisation and lack of regulation and quality control that causes the problems.
What does this mean for vapers before October 1?
Only vapes for the treatment of nicotine dependence can be legally sold by pharmacists. Until October 1, a prescription from a doctor will be needed to get vapes from a pharmacy.
Under the new laws vape flavours will be restricted to mint, menthol, and tobacco, the logic being that the range of flavours previously available was “marketing to kids”. Reporting of vapes being sold near schools featured prominently in media coverage in the months that preceded the new legislation, which highlights another issue with unregulated vape sales: accessibility to people under 18.
Also banned under the new laws is “do-it-yourself” (DIY) home mixing, single-use or disposable vapes and advertising and promotion of vapes, including on social media. Nicotine is capped at 20mg/mL
From July 1, it will not be a criminal offence to possess or use a vape, but the manufacture, import and sale of disposable and flavoured vapes will remain criminalised.
Greens leader Adam Bandt said, “the changes that we’ve secured mean now you, the adult vape user, and children as well won’t be criminalised for their vape usage and can walk down the street with a Rock Princess or a Lush Ice and know that it’s not a crime.”
What does this mean for vapers after October 1?
From October 1 it will be possible to buy vapes from pharmacies without a prescription, although other restrictions (such as the limit on flavours) will remain. This is the biggest change on this date.
The definition of what constitutes a “commercial quantity” of vapes will also go down a tad from October 1. But this is of more relevance to illegal vape retailers than your average vape enthusiast.
Until September 30, commercial quantities are defined as 14 vaping devices, 90 vaping accessories, and 600mL of liquid vaping substance. From October 1, commercial quantities will be 9 vaping devices, 60 vaping accessories, and 400 mL of liquid vaping substance.
Will there still be a black market for illegal vapes?
Lack of enforcement was always an issue. Initial anecdotal evidence since July 1 suggests that most places that used to sell vapes still do, although they have disappeared from some shops and in others are being sold but with more caution (for example, before 9am and after 5pm).
What has changed most immediately is the price. Anecdotal reports are that increases in some suburban areas have been phenomenal — vapes that cost $20 in June are now retailing for up to $70.
The 3-month wait until October 1 when prescriptions will no longer be needed is not the only reason why the black market is likely to continue to thrive. While the ban on flavours has been touted as necessary to stop kids being lured into addiction by candy-flavoured nicotine lollies, the reality is that adult vapers, including those using vapes to give up smoking, choose to smoke a wide variety of the flavours on offer and may continue to do so. The new laws also restrict the type of device that can be used and pharmacy-sold vapes are relatively expensive.
The biggest hurdle the pharmacy-based model faces is reluctance of pharmacies to sell unprescribed vapes. Pharmacies are private businesses and don’t have to sell anything they don’t want to. The Pharmacy Guild of Australia (PGA) supported the initial legislation but has strongly opposed the Greens’ amendments. The PGA represents most retail pharmacy businesses and several major pharmacy chains, such as Priceline, have spoken out against the laws. The PGA’s opposition is mainly the based on the significant increase in workload for pharmacists that will come with the new system, without any promise of a significant revenue stream to compensate. But if the only outlets legally allowed to sell a product decide they don’t want to, then sale of that product is effectively banned.
Another context to the new laws is Australia’s strict anti-tobacco laws. Because of massive taxes, tobacco and cigarettes in Australia are the world’s most expensive. This has created a large black market in illegal tobacco. With this comes the health risks from adulteration and lack of quality control. Vaping in Australia has in part risen in popularity because it is cheaper than cigarettes or tobacco.
The new restrictions on vapes, along with further restrictions and price increases on tobacco that will come into force next April, are likely to fuel this black market. Vapes, cigarettes and tobacco increasingly feature as much as meth, coke and heroin in the reported hauls of police raids, and in Victoria the black-market trade in tobacco and vapes has been linked to a spate of fire bombings and other violence. A Department of Health “impact analysis” in January showed a prescription-only model for vape sales, requiring GP visits, could add considerably to the price of vapes and incentivise growth in the nicotine vape black market.
How do the changes measure up to NUAA’s position on vaping?
1. Nicotine vaping products are a form of harm reduction for adult smokers who wish to reduce or cease smoking.
The new laws recognise this, although the rhetoric accompanying their introduction unnecessarily stigmatises recreational vaping.
2. No criminalisation or punitive action towards the personal use of vapes.
Achieving this was a main motivation behind the Greens’ amendments, but while possession and use of an illegally sold vape will not be a crime, some effects on vapers will be punitive: increased expense, less choice, less availability, stigmatisation and infantalisation of recreational vaping.
3. Inclusion of lived and living experience knowledge in the development and review of any proposed regulations and/ or legal reform.
If there was lived and living experience knowledge in the development of this legislation, it seems to have been mostly ignored.
4. Reduce community diversion to the unregulated ‘black market’.
The changes are unlikely to do this. The current situation with black market vapes (along with tobacco, cigarettes and other nicotine products) is different from the black market in other drugs in that the end consumer generally buys the product from a legitimate shop. The new laws, and their enforcement, could change this.
5. Prevent the marketing or sale of NVP products to minors.
This is a key motivation of the new laws.
6. Develop an accessible evidence-based, health promotion and health literacy education campaign.
Unfortunately, much of the political debate and media coverage surrounding the laws has been far from evidence-based. This resource from the National Health Service (UK) provides an evidence-based response to misinformation.
7. Increased investment into the social and health impacts of the use of vapes.
Nothing specific in the new laws about this.