Under federal law, nicotine is listed in Schedule 7 of the Standard for the Uniform Scheduling of Medicines and Poisons. What that means is that in Australia, nicotine products cannot be sold unless they are approved by the Therapeutic Goods Administration (TGA). As yet, the TGA has not approved any electronic cigarette device using nicotine in Australia.
However that does not mean you cannot buy an electronic cigarette and use nicotine. An increasing number of vapers are importing nicotine to be used in e-cigs from other countries. So far, it is not against the law to import about a three-month supply, so long as the supplier does not state that it has “therapeutic benefits”. The upshot is, while the federal law states that you cannot sell e-cigarettes with nicotine in Australia, you can certainly legally buy them from overseas.
Now you have to add into the mix the situation in each of the states and territories.
At the time of writing in New South Wales and Victoria it is legal to sell electronic cigarettes so long as they do not contain nicotine. The situation is a lot less straightforward in Western Australia, Queensland and South Australia where it is possible that the sale of e-cigarettes is prohibited.
Many would be aware of the ongoing court challenge to the laws in WA. A Supreme Court has ruled against vendor Vince Van Heerden, when he was prosecuted under state laws for selling e-cigarettes.
The case has hinged on a breach of section 106a of the Tobacco Products Control Act 2006 which states that you are not allowed to sell a device designed to resemble a tobacco product.
At the time of writing Mr Van Heerden was appealing the ruling.
Queensland and South Australia have the same rules in place as Western Australia. It is not legal to sell a device that resembles a tobacco product. To date, there has not been a case against anyone selling electronic cigarettes in those states, but all eyes will be on the case in Western Australia.
The argument has hinged around whether the many forms of electronic cigarettes or personal vaporisers, do in fact resemble a tobacco product. Mr Van Heerden was ultimately unsuccessful when he argued that the devices he was selling could not be mistaken for a cigarette. He is now using the appeal to argue that adults should have the choice to use electronic cigarettes, whether for their own personal benefit, or as a viable way to quit smoking.
Across Australia it is not legal to sell electronic cigarettes as a way to quit smoking. Because the TGA has yet to approve their use with nicotine, vendors must not make any therapeutic claims about their use.
That situation can only change if a manufacturer takes their product to the TGA with evidence that it help people give up smoking to see if they can get it approved. That of course, is an expensive and time consuming process that many smaller operators would find hard to do. There is a concern that situation leaves the door open to big tobacco companies, who not only have the resources, but are starting to buy up e-cigarette companies, to corner the market.
It is hard to know what the future for electronic cigarettes in Australia is likely to be. Queensland is about to have e-cigs treated the same as tobacco products from 2015. What that means is that e-cigarettes must not be smoked in smoke-free indoor and outdoor public places; they cannot be advertised, promoted or displayed at retail outlets. The ACT is looking at introducing the same kind of restrictions.
For other states, it would seem that there is something of a wait and see approach – whether that is to see if the use of electronic cigarettes in Australia turns out to be a positive thing in terms of people no longer smoking, or if other state authorities look to the case in Western Australia and follow suit when the appeal hearing is finally resolved. Here’s hoping Vince Van Heerden manages to convince the courts in WA, that as adults, we should have the choice.