Vaping Bans and Smoke Signals
Smoke and mirrors.
The Australian Government has just introduced a world-leading ban on non-prescription vaping in May 2023. The ban, which has since taken effect at the beginning of 2024, has sought to curb the growing youth health crisis through banning the sale and importation of these devices. [1] Through the enactment of the Public Health (Tobacco and Other Products) Act 2023, and numerous amendments to the Therapeutic Goods Regulations and Customs (Prohibited Imports) Regulations, this decision can be viewed as a necessary and long-awaited solution to the regulation of e-cigarettes. [2] However, it has been met with both criticism and skepticism with some arguing the changes in regulation are prohibitive and merely an extension of the Government’s failure to properly address this issue in 2021 when the initial prescription laws were put in place. [3]
A youth epidemic?
Despite once being thought of as an effective mechanism for aiding avid nicotine consumers in their withdrawal efforts, somewhere along this pursuit, e-cigarettes managed to find their way into the hands of young children. Leading up to the ban, it was surveyed that 12.9% of students between the ages of 12-15 and 22.1% of 16–17 year-olds had admitted to recent use of e-cigarettes. [4] The cause of this outcome is a complex one and requires attention to an array of factors. Firstly, there is a significant knowledge gap where many young users believe e-cigarette usage has little to no negative health impact when compared to smoking. [5] This is a common misconception, as there is evidence to suggest early nicotine exposure can pose an increased risk of onset depression and anxiety, insomnia, and low academic performance, in addition to being linked with acute and chronic respiratory harms. [6] Secondly, opportunistic manufacturers have exploited brightly coloured boxes and cartoons on both vape packaging and the vape itself, with the obvious intent of appealing to younger audiences. [7] This has been exacerbated by social media advertising, whether this be through the manufacturer’s direct advertising, or through influencer marketing campaigns. [8] Lastly, an element of blame can be attributed to the Government’s failed first attempt at ending recreational vaping through prescription-only use in 2021. [9]
What this ban means for Australians
The effect of the blanket ban can be viewed through two separate lenses - as a mechanism to punish importers and distributors of e-cigarettes, and to limit the availability of these devices generally. This ban has now made it a condition for individuals to be over the age of 18 and has doubled down on its requirement for a prescription from a medical practitioner to acquire e-cigarettes lawfully. [10] Prescription vaping devices are restricted in their flavouring, colours, and packaging, as well as their nicotine content. Furthermore, from the beginning of 2024, the importation of any vapes apart from permitted therapeutic ones will be prohibited without an import licence and permit, and any therapeutic vapes which are imported must adhere to flavour restrictions of mint, menthol or tobacco, as opposed to fruity flavours. [11] These laws and regulations are paternalistic in the sense they aim to punish suppliers and importers who do not comply with the law, as opposed to punishing users of these devices which the law views as ‘victims’.
Was this the correct approach?
Although on their face, positive steps towards addressing this crisis, the success of these legislative measures is dependent on a combination of factors. These include: the ability for the e-cigarette black-markets to be effectively controlled, the extent to which time or more importantly financial barriers may hinder adults who smoke to obtain therapeutic vapes through medical consultations, and the willingness of medical practitioners to provide these cessation aids. [12] The former of these factors is the most difficult to achieve, as e-cigarette users continue to access nicotine-containing vapes through illicit sources such as convenience stores which still allow easy underage access despite the tightening of the laws. [13] Additionally, the sheer number of these stores and modes of supply coupled with extreme cost-barriers have made it extremely difficult for the Government to enforce these laws. [14]
Separately, many contend that the regulation changes raise concerns as to the negative outcomes arising from prohibitionist approaches to drug control, the main of which is the potential to drive young smokers towards tobacco, a far worse health alternative. [15] Moreover, there are other means to address this youth epidemic, such as increasing the cost of these devices, introducing plain packaging, restricting flavours and including health warnings on packaging, without the need for a blanket ban. [16] Instead, the Minister for Health and Aged Care has recently introduced a Bill into Parliament that further highlights a focus on increasing penalties for distributors and suppliers of e-cigarettes, rather than looking towards alternative approaches. [17]
These changes are obviously still in their infancy, and as such it remains to be seen whether in the long-term there will be any success in protecting the health of young children in Australia. However, it is clear enforcement remains a critical issue, and further attention needs to be directed towards addressing the crux of the epidemic - a fundamental lack of knowledge and the need to implement informative and prevention strategies rather than simply a prohibitionist approach. As such, the adopting of a more multi-faceted approach that combines educational and other preventative strategies, as opposed to merely disrupting supply, may be more influential in curbing this epidemic. [18]
[1] Department of Health and Aged Care, ‘Taking action on smoking and vaping’ (Web Page, 2 May 2023)
<https://www.health.gov.au/ministers/the-hon-mark-butler-mp/media/taking-action-on-smoking-and-vaping>.
[2] Public Health (Tobacco and Other Products) Act 2023 (Cth); Therapeutic Goods Regulations 1990 (Cth); Customs (Prohibited Imports) Regulations 1956 (Cth).
[3] Department of Health and Aged Care, ‘About vaping and e-cigarettes’ (Web Page, 12 February 2024)
<https://www.health.gov.au/topics/smoking-vaping-and-tobacco/about-vaping#:~:text=In%20recognition%20of%20the%20health,nicotine%20containing%20e%2Dcigarette%20products.>.
[4] Alcohol and Drug Foundation, ‘Changes to vaping rules in Australia’ (Web Page, 6 February 2024)
<https://adf.org.au/insights/vaping-changes-australia/>.
[5] Emily Stockings et al, ‘Vaping among young people - Our best defence is self-defence’ (2024) 43(2) Drug and Alcohol Review 355, 356.
[6] Ibid.
[7] Michelle Jongenelis et al, ‘Vaping in Australia’ (2024) 95(2) Australian Quarterly 3, 7.
[8] Samia Amin et al, ‘Exposure to e-cigarette information and advertising in social media and e-cigarette use in Australia: A mixed methods study’ (2020) 213 Drug and Alcohol Dependence 1-2.
[9] Samantha Howe et al, ‘The Australian Government’s new vaping policy should be part of a larger plan towards a tobacco endgame’ (2024) 220(4) Medical Journal of Australia 180.
[10] Stockings (n 5) 355-356.
[11] Department of Health and Aged Care, ‘Reforms to the regulation of vapes’ (Web page, 8 January 2024)
< https://www.tga.gov.au/products/unapproved-therapeutic-goods/vaping-hub/reforms-regulation-vapes>.
[12] Howe (n 9).
[13] Stockings (n 5) 355, 356-357.
[14] Ibid 356.
[15] Ibid.
[16] Mary-Ellen Brierley et al, ‘Perceptions of Australia’s e-cigarette regulations and recommendations for future reforms: a qualitative study of adolescents and adults’ (2024) 14(2) Melbourne Centre for Behaviour Change 4.
[17] Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024 (Cth).
[18] Stockings (n 5) 355, 357.