ACAPMA was contacted by a number of members in late September following their receipt of a letter from NSW Health relating to the retail sale of vapes in NSW.
The letter is understood to have been issued following the results of a sustained period of legal enforcement by NSW Health since January 2023. These results revealed that the NSW Government had seized more than 187,000 illicit products from retailers during the six-month period ending 30 June 2023 – a 300% increase over the same period last year.
In the week commencing 5 September 2023 alone, NSW Health reported that its’ inspectors seized 23,247 vaping devices with a street value of more than $695,000.
“ACAPMA supports the action of the NSW Government in seeking to address the growing incidence of illicit vape sales and it would be good to see all Australian State/Territory Governments following the NSW lead”, said ACAPMA CEO Mark McKenzie
“The growth in the illegal vape market, and the failure of all Australian Governments to enforce existing laws, is putting those retailers that are following the laws at a distinct competitive disadvantage. This situation must be brought under control urgently to minimise public health harm and reduce unfair competition and therefore ACAPMA is supportive of the general thrust of the NSW initiative”, added Mark.
That said, government initiatives addressing this issue must be credible and legally enforceable.
The credibility of the NSW Government actions in respect of vape sales was brought into considerable question as a result of the letter sent to all tobacco retailers, including fuel and convenience retailers, in the week commencing 18 September 2023.
The letter stated that retailers “cannot rely on the labelling of e-cigarette products to know whether products contain nicotine”. The letter went on the state “It is your responsibility to ensure that any e-cigarette or e-liquid products your business sells do not contain nicotine (for example, by having them independently tested by an authorized facility”.
Quite apart from the fact that the statements made by NSW Government amount to a public admission that all Australian governments were knowingly failing to ensure the accuracy of labelling of vape products sold in Australia, the testing directive imposed an unreasonable burden on retailers to address what essentially amounted to a failure of government enforcement.
“Directing retailers to verify and certify the contents of products that they did not manufacture and were purchased from reputable wholesalers, is not just impractical – it is legally invalid”, said Mark.
At a headline level, the letter provided strong confirmation of the NSW Government’s desire to deal with the issue of illicit vapes being sold in the community – and, more particularly, the risks being posed as a result of these products being sold to children. This objective is strongly and publicly supported by ACAPMA, as is the Federal Government’s proposed ban of the importation and sale of vapes in Australia (i.e. other than those sold for therapeutic use by pharmacies).
But advancing ill-considered actions that impose unreasonable obligations on retailers that apparently have no basis in law is simply not the answer. If anything, such action merely reduces the credibility of government actions in addressing an issue of increasing community and industry concern.
“The Federal Government must immediately enact legislation banning the importation and sale of vapes other than for therapeutic use – as foreshadowed by the Federal Health Minister in May 2023 – and then all Australian governments must provide the resources to ensure that these new laws are rigorously and comprehensively enforced”, said Mark.
In the meantime, retailers have an absolute legal obligation to take all reasonable steps to prevent the sale of vapes containing nicotine. Given that the testing of vapes was not considered ‘reasonable’, ACAPMA sought clarification from both the office of the NSW Health Minister and NSW Health on the legal basis for the testing directive contained in the recent letter.
The Office of the NSW Health Minister and the office of the Chief Medical Officer engaged constructively on the concerns raised by the Association. These representations resulted in receipt of a clarifying email from NSW Health stating that, with respect to the sale of vapes, “Retailers who sell these products should ensure that (they) purchase them from a reputable distributor and that they do not contain nicotine”.
ACAPMA considers that the clarification is a realistic ‘walk back’ from the explicit requirement for product testing that was cited in the original letter. In effect, NSW Health is saying that retailers should take all reasonable precautions to ensure that any vapes that they sell do not contain nicotine.
“ACAPMA maintains that testing of vape products is not reasonable and any retailers that are approached in respect of such a requirement in the future should immediately contact the Association”, said Mark.
That being said, all fuel and convenience retailers (not just in NSW) should note that they are legally required to take all reasonable actions to prevent the sale of vapes containing nicotine. Such actions should at least include:
- Ensuring that you only purchase vape products from reputable tobacco suppliers, and
- Checking the product labels to ensure that the product is not listed as containing nicotine; and
- Ensuring that you verify the product you are selling has not been proven to contain nicotine by reviewing the Vape Product testing list that is published and regularly updated by the Therapeutic Goods Administration (See Testing of nicotine vaping products | Therapeutic Goods Administration (TGA)).
“The key message here is that if you have any reason to doubt the nicotine content of vape products, don’t buy them from the wholesaler in the first place”, said Mark.
NSW Retailers should also note that if they are proven not to have taken all reasonable actions to prevent the sale of illicit vapes, they face serious sanction which include imprisonment for up to six months.
“For its’ part, ACAPMA will continue to work with the NSW Government, and all Australian Governments, to support the introduction of laws banning the importation and sale of vapes in Australian – backed up by meaningful enforcement of same”, said Mark.
“It is vital that the issue of illicit vapes and its adverse impact on both community health and tobacco market competition, is brought under control as a matter of urgency,” said Mark.
If you have any concerns in relation to this matter, please contact the ACAPMA Secretariat by emailing communications@acapma.com.au or by calling Mark McKenzie on 0447 444 011
ACAPMA
Source: https://acapmag.com.au/2023/10/legal-obligations-for-sale-of-vapes/.
