Australia’s vaping crackdown to be enforced with new laws

15 August 2023

By Melissa Davey, The Guardian

Exclusive: After announcing most forms of vaping would be banned, the Albanese government will legislate changes and boost agencies’ powers

Australia’s ban on non-therapeutic and single-use vapes will be underpinned by new laws – rather than a focus on regulation – in a development that has been welcomed by public health experts.

The Albanese government announced in May that it would outlaw the importation of non-prescription vaping products in the biggest smoking reforms in a decade.

But since then details about how the proposed ban will be enforced have been scant, leading some advocates to express frustration about the slow pace of reform.

Guardian Australia understands that state and territory health ministers have received their first advice from the national e-cigarette working group, which is now discussing the “technical details” of the new legislation.

Crucially, the sweeping vaping reforms will be underpinned by these new laws to ban non-therapeutic and disposable single use vapes domestically, though ministers will also introduce new legislation to give agencies more powers around importation control.

Therapeutic goods legislation will also be strengthened to introduce strict standards around the quality and safety standards of vapes bound for pharmacies.

A leading tobacco control expert with the University of Sydney’s school of public health, Prof Becky Freeman, said the strong focus on new legislation, rather than just delegating new regulatory powers to agencies, was “good news”.

“Once it has passed, it’s done,” Freeman said. “You can’t backtrack from it or cancel it with the stroke of a pen. Legislative changes are more powerful.

“It will take more time, but it means the reforms will be more robust.”

She said that may explain why none of the reforms announced by the health minister, Mark Butler, on 1 May have yet been implemented.

“These things take time, especially if it’s going to be legislation, not regulation,” Freeman said. “Obviously I would like to see is the government announce a date for implementation of these reforms, because we want to push ahead with them.”

She said the legislation would set the vaping industry “far back” from their goal to see vapes treated the same way as cigarettes, sold in convenience stores.

“So they will be having lawyers looking at any changes to see if there’s any possible way to challenge the laws once the shape of them is announced,” Freeman said.

“They did it with plain packaging. They have deep resources. So I can understand the government making sure their ducks are all in a row before storming ahead with announcements about the form these reforms will take and a start date.”

Despite reports claiming ministers were set to discuss vaping this week, there are no further meetings on vaping reforms planned this week as the health minister, Mark Butler, is due in India on Thursday.

Guardian Australia understands sticking points for the e-cigarette working group, comprised of senior representatives from the federal, state and territory health departments, include the most appropriate and timely way of imposing a uniform domestic ban, and whether that should be done through new commonwealth, or state and territory, legislation.

The group is also identifying products that should continue to be available as therapeutic goods and those that will be scrapped. This is to ensure products such as registered Nicorette inhalers are not inadvertently banned or restricted.

The group is also fleshing out how to make the changes easy to understand and enforce. The group wants to avoid the current situation in which the regulatory scheme has been circumvented by concealing the presence of nicotine in vapes.

Another area creating complexity for the group and health ministers’ is that therapeutic vapes have elements that are both medicines and medical devices. Medicines and medical devices are regulated differently under therapeutic goods legislation.

The Public Health Association Australia chief executive, adjunct Prof Terry Slevin, said: “We’d welcome clarity on the timing and process towards putting reforms in place.

“But legislation and the processes that are essential for proper enforcement need to be carefully constructed.

“Yes, those committed to public health want urgent action, but we understand to do it well, to make it stick, takes investment of time energy and finite public resources.”