The well-known harmful health effects of smoking and in particular its effects on those within the same space as smokers was recognised over 30 years ago in the Smokefree Environments Act 1990. This was updated in 2020 to integrate vaping, with a change in name to the “Smokefree Environments and Regulated Products Act 1990”. The amendments seek to strike a balance between ensuring vaping products are not sold to young people while ensuring they are available for those who want to purchase a less harmful alternative to traditional tobacco products. This has given rise to a relatively complex piece of legislation, the provisions of which are continuing to be phased in over time.
The effects of the amendments began in November 2020 with the prohibition of vaping advertising, the prohibition of selling vaping products to people under 18 years old, and the prohibition of vaping in enclosed internal workplaces.
Retailers receiving 50% or more of their total sales from the sale of vaping products can now elect to operate as a “Specialist Vape Retailer”. Any retailer that had not been approved as such by 11 August 2021 could no longer sell vaping product flavours other than tobacco, mint and menthol. From 11 September 2021, all retailers of vaping products have been required to display a notice that no vaping products may be sold to people under 18 years told.
Some important provisions are yet to come into effect. From 25 June 2022, distributors of vaping products must only distribute products with packaging that complies with regulations, which include that they do not resemble food or cosmetics, they display a message that vaping is harmful to health and that they do not claim that their use is beneficial to the user’s health. That date is 6 weeks after the same requirement was imposed on manufacturers and importers of vaping products, to allow for the rotation of old stock. The flow-on effect is that a further 6-week period is allowed before retailers are required to only sell regulation-compliant vaping products, i.e., from 11 August 2022.
Any business involved in the vaping industry, including manufacturers, distributors and Specialist Vape Retailers, must during January 2023 submit to the Director-General of Health an annual return showing information on sales. Manufacturers and importers must also submit an annual report showing results of all tests conducted during the previous year. Those tests cover a vaping product’s contents and safety and must include a stability programme to monitor the product over its shelf life.
The penalties for contravening vaping regulations are significant (for example a manufacturer or distributor which is convicted of not complying with packaging regulations for vaping products may be fined up to $200,000). We recommend that any business involved in the vaping industry obtain legal advice about what they are required to do and when.