Are E-Cigarettes Legal?

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eCigarettes

Electronic cigarettes or ‘vapes’ are becoming a popular alternative to smoking, but there’s some confusion about whether they are actually legal and if so, whether they are subject to anti-smoking laws.

The answer is not simple – lawmakers around the world are grappling with vaping, but Australia is one of the countries where confusion is particularly rife, because laws differ from state to state.

Nicotine is a poison

Nicotine is classified as a poison in Australia, and this is the starting point for most legislation that governs smoking and the sale of tobacco.

Australia is one of the most regulated countries in the world when it comes to smoking and the sale of tobacco, and also one of the most expensive places to buy cigarettes.

For this reason, many turn to e-cigarettes to help them cut down or quit the habit. Despite a lack of research, many believe they are less harmful than ‘real’ cigarettes, allowing smokers to inhale vapours without actually ingesting any smoke.

E-cigarettes are controversial world wide, and despite the fact they have been used for decades, they have never been approved as an aid to quitting.

Do all e-cigarettes contain nicotine?

The answer is no, but in 2013, some liquid refills claiming to be nicotine-free were analysed and found to contain significant quantities of the drug.

A national public health warning was issued to help Australian consumers understand the risks associated with the product.

Is vaping legal in NSW?

As of 2023, nicotine containing vaping products can only be obtained via a pharmacy with a prescription from a medical practitioner.

Illegally obtained e-cigarettes cannot be imported, but there is no explicit criminal offence related to the use or possession of vapes.

There are, however, substantial restrictions on where a person can use a vaping product in NSW, as they cannot be used in ‘smoke-free areas’.  Smoke-free areas include:

  • all indoor public places
  • outdoor public places:
    • within 10 metres of children’s play equipment in outdoor public places
    • public swimming pools
    • spectator areas at sports grounds or other recreational areas used for organised sporting events
    • public transport stops and platforms, including ferry wharves and taxi ranks
    • within 4 metres of a pedestrian access point to a public building
    • commercial outdoor dining areas
  • in a car with a child under 16 years of age in the vehicle
  • on public transport vehicles such as trains, buses, light rail, ferries is also banned under the Passenger Transport (General) Regulation 2017.

Vaping within a smoke-free area will result in an on-the-spot fine of $300.

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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