Wednesday, 28 March 2018

Interesting vaping times [updated]

I don't think anybody yet has a good handle on the consequences of yesterday's court decision on alternative nicotine delivery devices.

My reckons thus far, but with wide confidence intervals around them. I am not a lawyer. Do not rely on this as legal advice. I could be completely wrong. If you know about legal stuff, please tell me what I have gotten wrong. [and see one update at the end]
  • I think the decision means that any nicotine delivery mechanism that is not like chewing is now not covered under the SmokeFree Environments Act;
  • Any nicotine delivery mechanism that is like chewing may be covered, but the Court would entertain arguments that bans are contrary to the purposes of the Act if the mechanism is sufficiently less harmful than chewed tobacco - like snus;
  • Retail sale of nicotine-containing e-liquids for vaping has been de facto legal because the government stopped enforcing the prior law, but de jure illegal. This has meant that a lot of specialist shops are selling the stuff and so have a few dairies, but that a lot of larger retailers that currently sell cigarettes have stayed out of the market. Why? Big companies fear reputational risk and liability for doing anything that isn't very clearly legal, and smaller players can be more nimble. Now you might think the decision opens this all up BUT:
  • Nicotine-containing e-liquids weren't just restricted under SFAE where MoH thought they were covered as an "other oral use." Nicotine for inhalation is also a scheduled Pharmacy-only medicine. It's just that nobody's been enforcing that.
  • I think that means:
    • None of the restrictions under SFEA about where you can smoke apply to vaping. Property owners can choose to ban vaping if they want to, but they shouldn't feel constrained to ban it because of SFEA.
    • Sale of nicotine-containing e-liquids may still be de jure banned except in pharmacies. Sale within pharmacies should now be completely legal because SFEA restrictions are gone and the only remaining ones come through scheduling in the Medicines Act. It's like any of the other pharmacy-only products that don't require prescription.
    • Heat-not-burn is completely legal in the same way that toothpaste is legal.  
    • If products like snus were deemed not covered by SFAE, they'd be completely legal in the same way that heat-not-burn products are completely legal - but sniffed tobacco would remain prescription-listed. 
I Am Not A Lawyer. But I haven't yet seen any proper lawyer-takes on this from folks familiar with this bit of law.

If MoH doesn't appeal the decision, everything gets interesting real fast. 

Heat not burn products will come quickly to market; vaping will remain in its current weird space unless MoH gets the regs up for vaping. 

Before the court decision, there were worries that adding heat-not-burn products to the regulator's remit would do too much to hinder speedy access to vaping products. 

That's flipped now if heat-not-burn is as regulated as toothpaste and vaping would formally be restricted to pharmacies (albeit more broadly available informally). Whether any of the larger suppliers would try selling through pharmacies in the interim is interesting. But we'd expect more pressure not just to get the vaping regs sorted out to avoid distorting things toward heat-not-burn, but also to get a similar structure around heat-not-burn. 

And I'd be a bit surprised if Otago didn't come out soon with some "The sky will fall if we don't move to ban these things or at least heavily restrict them" release.

Insert your favorite gif of an anxious person eating popcorn at the edge of the movie theater seat... this is all kinds of fun.

UPDATE: One correspondent who knows the area well but who is not a lawyer suggests that the Medicines Act only applies where the nicotine is for therapeutic or medicinal use. If that's the case, then supply of vaping e-liquids is legalised by the same court decision. 

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