ACAPMA members are being reminded to use caution when choosing to take advice of consultants or businesses who have no ultimate responsibility or accountability for incorrect advice they give, after several members have been stung by completely incorrect advice and hit with penalties for following it, specifically around the display for sale of nicotine free vapes.
ACAPMA provides members with support and guidance on business operations, industry trends, compliance and best practice in fuel wholesale and retail. This is a core function of the association and one that is undertaken under ACAPMAs qualification and expertise, and importantly, under our insurance. This gives members the confidence in the quality of the guidance being received, and in the ability to rely on it.
The approach ACAPMA takes when providing guidance is to highlight for the members the actual government resources and references, rather than the interpretation of intermediaries.
“When we are providing members with guidance on a particular issue, we take the time to understand the members business and why they are asking for information, because information without context is not going to be useful to the member”, explains ACAPMA’s Elisha Radwanowski.
“Once we understand the motivation and the context, we then take the time to review the most current legislative information to communicate the compliance requirement to the member, before we add the industry experience and best practice commentary”, continued Elisha.
“We do this for so many things, form wage rates, to cam lock and manifold designs, to food safety equipment design requirements, to financial compliance and everything in between. Even for those things that we live and breathe every day we go through the research and verification process, every time. We come from the perspective of operating in an environment where compliance requirements are constantly changing….so just because we know it was right yesterday, when a member asks about it today, we double check it is still right before we confirm that for our member. This is really important to us because as a registered organisation, ACAPMA represents members when they get into compliance issues, acting as their representative in unfair dismissals, responding to PINs etc. We have a vested interest in ensuring that members understand the way to get it right…because we are part of helping them out when they get it wrong”, added Elisha.
The importance of this approach has been highlighted again with a spate of ACAPMA members falling into the trap of following guidance of vested interests on the hot topic of vapes or e-cigarettes that has proven to be incorrect.
“There are some areas that are grey, that are up for interpretation, and there are others that are simply black and white. When it comes to the rules around what a retailer can and cannot do with vapes or e-cigarettes there is absolute clarity in the laws, but there is a series of businesses and websites and even suppliers that are causing issues with members by providing advice that is simply wrong”, explains Elisha.
“In once case the business followed the detailed advice on the website of a supplier that outlined that it was completely ok for that business to advertise its vapes to customers in their state. Whether the information on the website was uninformed, out of date or just knowingly wrong is not clear, what is clear is that the business was in breach of the actual law, which forbids advertising or display of vapes or e-cigarettes and attaches a series of penalties”, continued Elisha.
This business was considering implementing vapes instore and searched Google for “Vape Laws Australia” and “Legalise Vaping Australia”, then followed the seemingly authoritative sites;
It is wrong;
Promotional advertising of e-cigarettes is an offence in South Australia.
“What is distressing is that this is not isolated”, adds Elisha.
Difference ‘advice’ website stating no age restriction and no advertising or promotion restriction;
The actual laws in NT treat e-cigarettes/vapes as a tobacco product subject to the same age, promotion and display restrictions. There are no plain packaging requirements for vapes but all others apply;
https://nt.gov.au/industry/licences/tobacco-licences
“In the area of Vape compliance we are consistently seeing businesses, consultants and suppliers giving members ‘advice’ on what is legal and that ‘advice’ being completely wrong…and it is the ACAPMA member that is paying the price of this dodgy advice, so we are calling on all members to be really cautious about whose ‘advice’ they rely on”, explains Elisha.
“In every jurisdiction in Australia it is illegal for petrol and convenience retailers to sell, or offer for sale vapes, or e-cigarettes, that contain nicotine. Simple. Easy. Black and White. No grey”, explains Elisha.
“The reality is that nationally vapes and e-cigarettes, even 0% nicotine products, are required to be treated like tobacco products when it comes to the three fundamental areas for retail; display, advertising and sale age. you have to ensure vapes are hidden, that they are not displayed. In every jurisdiction in Australia, except WA where retailers cannot sell vapes at all, you have to ensure that there is no advertising or promotion of vapes. In every jurisdiction in Australia you have to ensure that vapes are not sold to persons who are under 18 years of age. It is as clear and as simple as that”.
“In addition, in every jurisdiction in Australia you have to ensure that staff are trained in the requirements around vapes”, added Elisha.
Vape and E-Cigarette Review
As outlined in ACAPMAg last year (https://acapmag.com.au/2021/05/display-advertising-and-sale-of-e-cigarette/) 0% nicotine vapes/e-cigarettes;
- NSW – display, advertising, promotion and sell as a smoking product – hidden and to 18+ only – https://www.health.nsw.gov.au/tobacco/Pages/tobacco-retailing-laws.aspx
- ACT – display, advertising, promotion and sell as a smoking product – hidden and to 18+ only – https://www.cmtedd.act.gov.au/open_government/inform/act_government_media_releases/meegan-fitzharris-mla-media-releases/2016/regulations-on-e-cigarettes-come-into-effect-today
- NT – display, advertising, promotion and sell as a smoking product – hidden and to 18+ only – https://nt.gov.au/wellbeing/healthy-living/smoking/electronic-cigarettes
- QLD – display, advertising, promotion and sell as a smoking product – hidden and to 18+ only – https://www.qld.gov.au/health/staying-healthy/atods/smoking/devices
- SA – display, advertising, promotion and sell as a smoking product – hidden and to 18+ only – https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/public+health/tobacco+and+e-cigarette+laws+and+businesses/new+e-cigarette+laws+and+other+changes+to+tobacco+laws+in+south+australia
- TAS – display, advertising, promotion and sell as a smoking product – hidden and to 18+ only – https://www.dhhs.tas.gov.au/publichealth/tobacco_control/electronic-cigarettes/fact_sheet-_electronic_cigarettes2
- VIC – display, advertising, promotion and sell as a smoking product – hidden and to 18+ only – https://www.betterhealth.vic.gov.au/health/HealthyLiving/e-cigarettes
- christianm@switchco.com.au
Penalties start at $55,000 for an individual and $110,000 for a business and range up to $1m, so it is vital that retailers understand the requirements, and ensure that they comply with them.
Here to help
ACAPMA Highlights are things to consider, implement and watch out for in your business. They are provided as general information for you to consider and do not constitute advice. You should seek further advice on your situation by contacting your legal advisor. ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment and compliance professionals via employment@acapma.com.au, it is free for members. ACAPMA Membership delivers this and more benefits. See https://acapma.com.au/membership/ for more information.
Elisha Radwanowski BCom (HRM&IR)
ACAPMA
Source: https://acapmag.com.au/2023/02/display-of-vapes-what-is-allowed/.
