Striking the Right Balance: Vaping Amendment Bill
By Hannah Jang
Earlier in February this year, Associate Minister of Health Jenny Salesa introduced the Smokefree Environments and Regulated Products (Vaping) Amendment Bill to Parliament. The Bill aims to "strike the right balance between making sure vaping is available for smokers who want to use it as a quit tool for cigarettes while ensuring vaping products are not marketed or sold to children and young people" as said by Salesa.[1] To achieve this aim, the Bill amends the Smoke-Free Environment Act 1990 by bringing vaping and heated tobacco products under the same set of regulations as traditional tobacco products, while being subject to some exceptions.[2] The Bill seeks to propose several changes concerning vaping products, including the ban on sales to those under 18, the prohibition of advertising and promotion and restrictions on packaging and vape flavours. While the underlying intentions of the Bill are in the interests of public health, it has been met with criticisms from the community, vaping industry and members of Parliament.
Vaping
Vaping devices, also known as e-cigarettes, refers to the use of an electronic device that heats a liquid, turning it into an aerosol which the user inhales.[3] Vapes come in a wide range of flavours and provide the sensation of inhaling tobacco smoke without the smoke, therefore serving as an alternative for cigarette smokers.[4] Vaping is much less harmful than smoking, but it is not entirely harmless. The long-term impacts of vaping are still unknown and will be for many years.[5] Similar to the pattern observed in other countries, vaping has rapidly increased in New Zealand. In 2018 around 200,000 people in New Zealand reported themselves as vapers, with 47 per cent of them being former smokers, according to the director of Action Smokefree 2025.[6]
New Zealand's current regulatory framework
In March 2011, the government set a long-term goal to make New Zealand a "Smokefree Nation" by 2025. It aims to bring smokers down to 5 per cent of the population in order to reduce the burden of deaths and diseases caused by smoking. While rates have decreased since 2011, one in eight New Zealanders continues to smoke daily. With less than five years to go, the Ministry of Health sees vaping products as a potential contributor towards the achievement of Smokefree 2025.[7] At present, the Smokefree Environment Act 1990 only extends to regulate products manufactured from tobacco and not vapour. However, in the 2018 judgement of Ministry of Health v Phillip Morris (NZ) Ltd, the District Court found that the Act’s prohibition on tobacco products only extended to those used in a similar way to chewing or 'any other oral use'. It did not apply to heated smokeless tobacco products.[8] Following this judgement, New Zealand has seen a rapid increase in vape stores and the presence of vapes in general retailers such as service stations, dairies and supermarkets. By further implication, the ban on smoking in smokefree areas such as indoor workplaces and schools does not include vaping.[9]
The current regulatory framework indicates the difficulties associated with having an act that only governs products which were in contemplation at the time of its enactment. In response to this, the Bill is an attempt to apply risk-proportionate regulations across all tobacco products, including smokeless tobacco and vaping products.[10]
Flexibility for potential future harm-reduced products
In its present state, the Smokefree Environments Act 1990 enables the Act to regulate tobacco products. Clause 5 of the Bill seeks to insert new terms into the interpretation section, including the definition of a "regulated product" which would mean tobacco, vaping or herbal smoking products.[11] Clause 8 also amends Part 1 of the Act to prohibit vaping from legislated smokefree areas.[12] By widening the application of the Act, it tries to increase safety standards of available products such as vaping and those that may arise in the future.
Protecting children and young people
One of the main concerns underpinning this Bill is the increase in the use of vaping products across children and young people in New Zealand. In 2019, Action for Smokefree 2025 surveyed 28,433 Year 10 students across the country. The findings revealed that only 3 per cent of the students used e-cigarettes daily. In contrast to this, over a third (37.3%) of Year 10 students were reported to have tried an e-cigarette. Among all the young people who had said to have ever tried vaping, curiosity was the most commonly cited reason for their actions.[13] These youth statistics are a reflection on the lack of restrictions and the accessible nature of the online vaping market.
To reduce youth engagement with vaping, clause 21 of the Bill seeks to insert a new section 14, which explicitly states the prohibition on the sale of vaping products to people under the age of 18. Under section 14(2) specialist vape retailers are required to take all practicable steps to prevent people under the age of 18 from entering their premises.[14] In general, the Bill also widens the Act to include regulated products like vapes through clause 26, which replaces the current Part 2.[15] The majority of submissions received by the Ministry of Health are in favour of prohibiting the sale of vaping products to minors.
Restrictions on advertising and packaging
To further protect children and young people, the Bill places restrictions on the advertising and promotion of regulated products. By way of section 23, unless a person has authorisation, they must not publish a regulated product advertisement in New Zealand or arrange for another person to do so on their behalf.[16]
There are exemptions to the advertising restrictions in section 24 of the Bill. Such exceptions include, but are not limited to, the display of an approved public health message per the regulations and the giving of advice by a specialist vape retailer about vaping products in the approved vaping premises.[17] The Bill, which is currently in the Select Committee stage, has faced opposition from the public in regards to its advertising restrictions. While the majority of submitters have supported this, the prevailing view expressed is that any restrictions should be less rigid than those imposed on smoked tobacco products.[18]
Part 3 of the Bill provides packaging and labelling provisions to reduce the appeal and social approval of vaping for non-smokers. A regulated product must comply with the message requirements outlined in section 51.[19] By setting tailored requirements, it acknowledges the different risk profiles associated with differing products.
Notably, Attorney General David Parker has recently tabled a section 7 report to Parliament, stating that several clauses in the Bill contain provisions which are 'inconsistent with the right to freedom of expression' affirmed in section 14 of the Bill of Rights Act 1990.[20] Among those provisions is the prohibition of vaping advertisements and requirements for standardised packaging. Essentially, the right to freedom of expression extends to all forms of communication, including advertising. While the Attorney General recognises the Bills objective to protect public health, he argues that unlike cigarettes, a blanket prohibition is not a proportionate response given the lack of evidence around the health risks associated with vaping. However, these inconsistencies alone are not enough to bar Parliament from passing the Bill.[21]
Encouraging smokers to shift
The Bill also amends the Smokefree Environment Act 1990 to prohibit flavours and colours that may attract children, young people and non-smokers in an attempt to find a balance between helping cigarette smokers quit and not encouraging new users.[22] Section 63(2) of the Bill seeks to regulate vaping flavours by placing restrictions on retailers. General retailers are limited to tobacco, menthol and mint flavoured products, but specialist vape stores and retailers have no restrictions, provided they sell within their premises. [23] These flavour restrictions have faced opposition from the public. While the Vaping Trade Association of New Zealand has commended the overall introduction of the legislation, it opposes such limits on the basis that flavoured vapes have made a significant contribution to New Zealand's record-low smoking rates.[24] Complementary to this, the Aotearoa Vapers Community Advocacy has also submitted that limiting availability and desirability only serves the interests of Big Tobacco. It recommends that general retailers have at least the ability to sell fruit and dessert flavours.[25] Fundamentally, limiting flavours to those associated with cigarettes only undermines the purpose of vaping. Action on Smoking and Health further submitted the same recommendation.
Conclusion
According to Associate Minister for Health Jenny Salesa, the Smokefree Environments and Regulated Products (Vaping) Amendment Bill “is the most significant change to New Zealand's smokefree laws since they were introduced 30 years ago”.[26] It proposes amendments to many areas of the Smokefree Environment Act 1990 in an attempt to bring the Act up to date and strike a balance between recognising the benefits of vaping and protecting children and young people of New Zealand.[27] On balance, the proposals made by the Bill appear to be on the precautionary side, strongly reflecting concerns about the growing relationship between young people and vaping. However, it seems that the select committee and Parliament have many perspectives to consider, such as those raised by the public and the Attorney General's section 7 report. With less than five years until Smokefree 2025, the potential of vaping products to improve public health depends on the extent to which it can act as a gateway out of smoking without attracting children and non-smokers.
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[1] “Government to Regulate Vaping” (23 February 2020) Beehive.govt.nz <https://www.beehive.govt.nz/release/government-regulate-vaping>.
[2] (Vaping) Amendment Bill 2020 (222-1) (explanatory note).
[3] “What is Vaping?” (2019) Vaping Facts. <https://vapingfacts.health.nz/the-facts-of-vaping/what-is-vaping/>
[4] Yvette Brazier “Are e-cigarettes a safe alternative to smoking?” (18 May 2020) Medical News Today <https://www.medicalnewstoday.com/articles/216550>.
[5] Cabinet Paper “Supporting smokers to switch significantly less harmful alternatives” (21 November 2018) at [22].
[6] “Bill to restrict vaping and e-cigarette sales and use in public” (23 February 2020) RNZ <https://www.rnz.co.nz/news/political/410143/bill-to-restrict-vaping-and-e-cigarette-sales-and-use-in-public>.
[7] “Vaping and smokeless tobacco” (12 September 2018) Ministry of Health <https://www.health.govt.nz/our-work/preventative-health-wellness/tobacco-control/vaping-and-smokeless-tobacco>.
[8] Ministry of Health v Phillip Morris (NZ) Ltd [2018] NZDC 4478.
[9] Cabinet Paper, above n 5, at [30.4].
[10] RNZ, above n 6.
[11] (Vaping) Amendment Bill 2020 (222-1), cl 5.
[12] (Vaping) Amendment Bill 2020 (222-1), cl 8.
[13] “ASH Year 10 Snapshot” (2019) Action for Smokefree 2025 <https://www.ash.org.nz/ash_year_10>.
[14] (Vaping) Amendment Bill 2020 (222-1), cl 21.
[15] (Vaping) Amendment Bill 2020 (222-1), cl 26.
[16] Above n 14.
[17] Above n 14.
[18] “Submission to the Health Committee on the Smokefree Environments and Regulated Products (Vaping) Amendment Bill” New Zealand Parliament <https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_94933/tab/submissionsandadvice>.
[19] Above n 2.
[20] David Parker Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Smokefree Environments and Regulated Products (Vaping) Amendment Bill (26 February 2020).
[21] New Zealand Bill of Rights Act 1990, s 4.
[22] Above n 2.
[23] Above n 15.
[24] Vaping Trade Association of New Zealand ““Submission to the Health Committee on the (Vaping) Amendment Bill 2020”.
[25] Aotearoa Vapers Community Advocacy “Submission to the Health Committee on the (Vaping) Amendment Bill 2020”.
[26] Beehive.govt.nz , above n 1.
[27] Above n 2.