REGULATION

 

NZVA objective is to be the voice of e-cigarette and e-liquid retailers, manufacturers and suppliers alongside providing a voice for the vaping community to policy makers, media and researchers in New Zealand.

 

·       Currently the Ministry of Health position states that the importation and sale of e-cigarette devices and e-liquids both with and without nicotine are allowed in New Zealand.

 

·       However, NZVA believes that existing legislation covering e-cigarettes is inadequate for these products. We believe that the evidence is increasingly showing that e-cigarettes have an important role in harm-reduction and as a result public health benefits.

 

·       NZVA supports a new legislative approach to e-cigarettes that allows adult consumers to have access to high-quality vaping products.

 

·       We believe a new Bill covering this product category is the right way forward that incorporates the British Standards Institutes PAS 54115 Vaping products, including electronic cigarettes, e-liquids, e-shisha and directly related products – Manufacture, importation, testing and labelling – Guide.

                                                                                             

Specifically, PAS 54115 provides guidance on:

 

•     The manufacture, importation, labelling, marketing and sale of vaping products (VP) including electronic cigarettes, e-shisha, DIY e-liquid mixing kits, and directly related products

•     Purity of e-liquid ingredients in manufacture, contaminants arising from device materials and potential emissions from device operation, electrical safety, and metals and carbonyls in emissions

•     Test solution liquid and an outline for the toxicological and chemical analysis of emissions

•     The safety of batteries and chargers

 

Further to this, NZVA believes the current advice provided by the Ministry of Health should reflect the latest advice from Public Health England E-cigarettes: an evidence update. Key findings include:

 

•        the current best estimate is that e-cigarettes are around 95% less harmful than smoking

•        nearly half the population (44.8%) don’t realise e-cigarettes are much less harmful than smoking

•        there is no evidence so far that e-cigarettes are acting as a route into smoking for children or non-smokers

 

The New Zealand Ministry of Health Advice on the use of E-Cigarettes states:

 

What is the current legislation of e-cigarettes?

 

The Medicines Act 1981 (Medicines Act) and the Smoke-free Environments Act 1990 (SFEA) regulate the sale, advertising and use of vaping products, including nicotine liquids.

Nicotine is a scheduled substance under the Medicines Act. It is illegal to sell a vaping product (with or without nicotine) while making a therapeutic claim (e.g. claims to help smokers quit), unless the product has been approved for that purpose by Medsafe.

Vaping products are tobacco products, regulated under the SFEA, the they are manufactured from tobacco.

In Philip Morris v Ministry of Health [2018] NZDC 4478, the District Court found that all tobacco products (excepts types that are chewed or otherwise absorbed through the oral mucosa e.g. snus) may be lawfully imported, sold and distributed under the SFEA. The Crown (via the Ministry of Health) has not appealed the decision.

An implication of the Court’s decision is that the same SFEA regulatory controls apply to smoked tobacco, heated tobacco and vaping products that are manufactured from tobacco. This includes the ban on sales to minors and restrictions on advertising.

In addition, products that look like a tobacco product or smoking pipe and can be used to simulate smoking (toy smoking products) cannot be sold to a person under 18 years, even if they do not contain nicotine.

The ban on smoking in indoor workplaces, early childhood centres and schools only applies to smoking. It does not apply to vaping or products that are not smoked, such as heated tobacco products. Individual employers and business owners decide whether or not to include vaping in their Smokefree policies.

The Ministry of Health is considering how best to apply risk-proportionate regulation across all tobacco products including smoked tobacco, smokeless tobacco and vaping products.

Until the SFEA is amended, retailers should continue to trade responsibly and, in particular, not to advertise or sell vaping products to children and young people under 18 years of age.

 

What are the requirements for importers and retailers of e-cigarettes?

 

Please Seek independent advice from your legal advisor for your specific circumstances.

 

The regulation of e-cigarettes (including types marketed as electronic shisha, electronic hookahs, pens or vapes etc.) in New Zealand comes primarily under the Medicines Act 1981 and the Smoke-free Environments Act 1990 and its Regulations. Both acts are available on the legislation.govt.nz website:

•                Medicines Act 

•                Smoke-free Environments Act.

 

Note that it is prohibited:

•                under the Medicines Act 1981 to advertise, sell and distribute nicotine-free and nicotine-containing e-cigarettes for therapeutic purposes without these products being approved by Medsafe.

•                under the Smoke-free Environments Act 1990 to sell, supply and distribute e-cigarettes which look like a tobacco product (toy tobacco product) to people under 18 years of age.

 

Other legislation may also apply to the advertising, selling and distribution of e-cigarettes depending on the circumstances. They include the Consumer Guarantees Act 1993, Hazardous Substances and New Organisms Act 1996, and the Customs and Excise Act 1996.

 

If you have any doubts about your legal obligations as an importer or a retailer of e-cigarettes, you should seek independent legal advice.

 

It is the manufactures’, importers’ and retailers’ responsibility to ensure compliance with all legislative requirements.

 

Summary

 

The New Zealand Vaping Alliance supports appropriate regulations for e-cigarettes including age restrictions on youth access and mandated quality standards, for example BSI’s PAS 54115:2015.

 

NZVA believes that New Zealand requires a ‘stand-alone’ regulatory framework for these products and does not support the inclusion of these products under the Smokefree Environments Act 1990.