Ban on Retail Sales of Nicotine-Free Vapes Makes No Sense At All

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Nicotine-Free vapes banned

As of Monday, 1 July 2024, vapes are only available at pharmacies throughout Australia and for the first three months, sales of the products that are designed to be a safer alternative to smoking are by prescription only.

The main reasons for these changes are said to have been a rise in young people using vapes, as well as cases of youths presenting at hospitals sick, after having ingested too much nicotine.

The most recent changes come on the back of a series of other regulations on vapes which were implemented earlier this year.

Yet, the bizarre aspect to the new regime is that since a Therapeutic Goods Administration 2008 rescheduling decision on nicotine, retail sales of nicotine vapes have basically been illegal. And another TGA decision in 2011 made therapeutic nicotine vapes prescription only.

So, the new laws effective from Monday have really only removed legal non-nicotine vapes with a variety of flavours from retail outlets, as they’re no longer permitted for recreational use.

And the problem regarding nicotine vaping amongst teens obviously hasn’t been the result of the legal vapes, and it’s likely the difficulty government has long placed on adults using legal nicotine vapes has caused the core demand for the illegal products smuggled in that teens have been using.

Indeed, a portion of teenagers have always smoked cigarettes and continue to. But this has changed due to increasing restrictions on the availability of accessing legal and regulated tobacco products, and recent years have seen the lowest levels of underage smoking rates ever.

Much of this drop can also be put down to better education about the severe harms caused by cigarettes. And of course, much of the success is likely due to a safer alternative, vaping, being available, which has been shown to be 95 percent safer than smoking.

The legislation facilitating the new pharmacy only vaping regime was passed last week, and while the black-market for vapes is set to soar, as well as become much more secretive, a last-minute Greens amendment to the Labor bill has left us with a lot less harmful upcoming prohibition debacle.

Freebasing logic

Passed on 27 June, the Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024 has resulted in all nontherapeutic vapes no longer being available at retail stores, and those businesses that were vape-centred have closed down.

The bill is the work of federal health minister Mark Butler, who’s been gunning for vaping for quite some years now. And one might quip that he’s working for Big Tobacco, as that industry is set to only benefit from making the safer alternative more difficult to obtain, but that would just be a quip.

During his second reading speech, the health minister asserted that “if vapes are therapeutic goods” then they should be regulated as such, not “sold alongside candy bars in convenience stores, often down the road from schools”. Although he could have just as easily said sold alongside cigarettes.

“Importantly, this bill does not take away the ability for patients to legitimately access therapeutic vapes to help them quit smoking or manage their nicotine dependence if that is deemed to be clinically appropriate for that patient,” Butler added.

The health minister also outlined that the nation doesn’t just have an obligation to reduce smoking rates but nicotine addiction too. However, tobacco causes cancer, not nicotine. And removing legal nicotine-less vapes from the marketplace is hardly going to reduce nicotine or tobacco use.

Dangerous substances and chemicals have been found in vapes, and rather than proposing legal quality-controlled production to ensure people don’t use the dodgy ones, Butler neglects to point out that it’s obviously dubiously produced illegally imported products containing these adulterants.

“Perhaps, most worryingly,” Butler warns, “the long-term health risks of vaping are not yet fully known.” But not to worry, as the minister charged with health, then makes a few potential negative side effects up, so “nicotine vapes may worsen mental health conditions and amplify stress”.

The useless war on vapes

Last week’s bill introduces the second tranche of Butler’s war on vapes, which he launched at the National Press Club in May 2023. The first round saw a general phasing out of the importation of all previously legal vapes brought in from overseas, which were mainly nicotine-less products.

And Butler even had the opportunity to pose alongside some border seized vapes early on.

Of course, heroin and cocaine have long been illegal in this country and widely used, yet none of the product on the street is locally produced, and it comes in the same way as illegal nicotine-filled vapes have and will be increasingly continuing to do so.

Numerous new penalties to crimes apply as well. Refreshingly, though, they do have both civil penalties and criminal that can apply to each offence.

Importation, manufacture and supply can send an individual away for up to 7 years and/or receive a fine of up to $1.65 million, while commercial supply carries 2 years inside.

Remarkably, the minister’s speech and the campaign in general is framed around continuing to progress the fight against tobacco and smoking.

Yet cigarettes will still be available everywhere, and it’s the removal of nicotine-less liquid inhaled via heated air that’s seen to be maintaining the quit smoking campaign.

Greens enhance situation, no end

In October 2021, the TGA reclassified vapes as a prescription only medication. Although retail sales were already banned nationwide as it was, and people could still use the TGA special access scheme to import unapproved vapes.

But greater quality controls were placed on the importation system and the law was changed so the possession of nicotine liquid required a valid script.

And Butler’s removal of all legal vaping products from retail stores this year was simply going to accompany this pre-existing set of circumstances, meaning no access to any vapes without a prescription.

The Greens, however, changed all this with some last minute amendments that, whilst keeping the chemist purchasing requirement, have greatly improved the situation, and seriously maimed Butler’s war on vaping, which tends to make tobacco all the more enticing.

Vapes will be available from chemists but no more prescription will apply to those over 18 to buy them from 1 October.

These will continue to be the reasonably Labor proposed plain packaged vapes, but no records of dates of purchase will be recorded by pharmacists. And under 18-year-olds will be able obtain vapes if a doctor recommends this via a prescription.”

As well, personal possession of vapes, nicotine or otherwise, without a prescription will no longer be a crime.

So, these amendments will make it easier for adults to obtain nicotine vapes and hence, lower black-market demand and ensure the consumption of quality-controlled products, at least until 5 pm when the chemists close.

Whereas for that group of youths that are always drawn to smoking and such, they will likely find it much easier to obtain retail sold cigarettes than legal nicotine-less vapes only available at chemists.

But the most accessible products for these kids will be black-market imports of nicotine vapes.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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