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Government introduces Bill to regulate vaping products

Home Insights Government introduces Bill to regulate vaping products

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Contributed by: Craig Shrive, Ben Gregson, and Tom Swayne

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Published on: February 25, 2020


Yesterday the Government introduced the highly-anticipated Smokefree Environments and Regulated Products (Vaping) Amendment Bill (Bill) into Parliament, which extends regulatory coverage to all vaping and smokeless tobacco products. The Bill aims to strike a balance between protecting children and young people from the risks associated with vaping products, and enabling smokers to switch to less harmful alternatives. On announcing the introduction of the Bill, the Associate Minister of Health, Hon Jenny Salesa, described it as "the most significant change to New Zealand's smokefree laws since they were introduced 30 years ago."

In order to meet the objective of protecting youth from the risks associated with vaping and smokeless tobacco products, the Bill applies many of the existing restrictions for smoked tobacco products to vaping and smokeless tobacco products. In particular, the Bill prohibits:

  • the sale of vaping and smokeless tobacco products to persons under the age of 18; 
  • the advertising and sponsorship of vaping and smokeless tobacco products; and
  • the use of vaping and smokeless tobacco products in indoor workplaces, early childhood centres, and schools.

In drafting the Bill, the Government has recognised that smokers need a level of support and advice to successfully switch to less harmful products. To ensure that they are available as a tool to assist those who want to quit, the Bill exempts vaping and smokeless tobacco products from some of the restrictions that otherwise apply to smoked tobacco products. For example, the Bill enables all retailers to display vaping and smokeless tobacco products at the point of sale, in contrast to the requirement that smoked tobacco products, such as cigarettes and loose leaf tobacco, be kept out of the public’s sight.

The Bill also makes a distinction between "specialist vape retailers" and "generic retailers" (ie, dairies, supermarkets, and service stations). A retailer who sells vaping products may apply to the Director-General for approval to be a specialist vape retailer, provided that it satisfies certain eligibility criteria, a key one being that at least 85% of the retailer's total sales are from the sale of vaping products. As drafted, the Bill would allow qualifying specialist vape retailers to:

  • sell vaping products without any restrictions on flavours (by contrast, generic retailers may only sell tobacco, mint, and menthol-flavoured vaping substances);
  • use trading names that include the words "vape" or "vaping";
  • provide giveaways, discounts, and loyalty points;
  • provide advice and recommendations about vaping products within the retailer's premises; and
  • allow customers to sample vaping products within the retailer's premises.

Subordinate regulations will be necessary to give full effect to several of the Bill's provisions, including those relating to product safety and packaging. In respect of the former, regulations will prescribe detailed pre-market notification obligations for manufacturers and importers of vaping and smokeless tobacco products, who will be required to certify to the Ministry of Health that their products meet applicable safety standards. While they are yet to be determined, the Associate Minister has indicated these safety standards are likely to cover maximum nicotine levels and child-resistant closures. The Associate Minister has also indicated that tobacco-style plain packaging would not be appropriate for a reduced harm product. 

Other areas that are yet to be worked out, and which are expected to be addressed in subordinate regulations, include:

  • approval criteria and other rules applying to specialist vape stores;
  • point of sale health information or warning signs;
  • changes to the parts or components of vaping or smokeless tobacco products that require a new product notification; and
  • transitional arrangements to enable the continuation of the Act's existing provisions for tobacco products up until new provisions covering all regulated products come into effect.

The Bill is expected to be referred to the Health Select Committee for a period of three months, with the view to enact legislation by 31 July 2020 (in advance the next General Election in September). The Cabinet Paper accompanying the release of the Bill notes that the Government expects all regulations to be in effect within six months from the Bill's enactment.

Further information on the Bill, as well as the recent Cabinet Paper and updates on the vaping and smokeless tobacco regime, can be accessed on the Ministry of Health's website here.

This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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