As a quick recap, Vince van Heerden was the first person to be found guilty of selling e-cigarettes in Australia. Back in 2011, as the owner of the online store Heavenly Vapours, he was prosecuted under WA’s Tobacco Products Control Act for selling a device designed to look like a cigarette. He was acquitted in 2013, but the charges were upheld on appeal by the state’s Health Department last year. Since then Vince launched an appeal in the High Court, arguing that e-cigarettes are “tobacco harm reduction devices”. He’s taken up the fight, he says, not just for his business, but for consumer choice.
That case has now been heard with a decision expected to be handed down early next year.
Vince updated his GoFundMe page to report that he believed the hearing went “very well”.
It seems Vince’s lawyer put forward the argument that e-cigs are similar to a smoking pipe, which is defined in the Tobacco Controls Act as a “smoking implement”. A smoking implement, they argued, by definition, is not a tobacco product.
As Vince stated: “A pipe is a device that is designed to facilitate the consumption of tobacco, the device itself is not actually consumed, much like an e-cig where the device serves the purpose of allowing the user to consume e-juice. Once used, the e-cig itself is not consumed but rather can be refilled in the same way that a pipe functions.”
He went on to say that their core argument was that an e-cig, could therefore not be defined as a “tobacco product” as it did not fill any of the definitions for what a tobacco product is.
“When you break that down it’s a simple argument,” Vince said.
“An e-cig is NOT a cigarette or a cigar, tobacco is not a substantial ingredient, and lastly an e-cig is not consumed during use.
“This in effect means that an e-cig cannot be classed as a tobacco product and therefore cannot be said to be designed to resemble a tobacco product.
“Rather, an e-cig being most analogous to a smoking pipe would logically have to fit within the definition of a smoking implement or at least that it is designed to resemble a smoking implement not a tobacco product. Therefore, an e-cig cannot be said to offend against section 106A because “smoking implements” are not covered by the act.
“This I believe should be the win.”
Should Vince be right, and the court upolds his appeal, it could have ramifications for those states that have similar legislation. Currently the Tobacco Act in SA and New South is exactly the same as in WA. While those states have not yet attempted to prosecute anyone for the sale of electronic cigarettes, a win for Vince would make it less likely that they would do so in the future.
As Vince explained, the case they made was both “solid and intellectually honest”.
“It wasn’t open to subjective interpretation but rather based in legislatively defined terms that I and my lawyers feel demonstrate my innocence and the rightful exclusion of all vaping devices from prohibition under section 106 A.”
We are keeping our fingers crossed for you Vince.
You can check out more information and lend your support to Vince van Heerden at his GoFundMe page.