Is Vaping Legal? The Ministry's position: yes it is.

I've been wondering about the effects of Philip Morris v Ministry of Health. The Ministry has now put out a statement.

The Ministry will not be appealing the decision which said that PMI's IQOS, a heat-not-burn device, was not covered by the section of the SmokeFree Environments Act which banned chewed tobacco. The Court ruled that IQOS was not like chewing, and that the "or other oral use" clause had to be read as things that were like chewing.

So the sale of tobacco products previously banned under that provision is now legal. I would be exceptionally surprised if this did not include Swedish snus, which is not chewed.

The Ministry believes that most of the rest of the SmokeFree Environments Act's controls will apply to these reduced harm products. MoH writes:

Therefore, the same SFEA regulatory controls apply to smoked tobacco, heated tobacco and vaping products that are manufactured from tobacco. This includes the ban on sales to minors and restrictions on advertising.

The ban on smoking in indoor workplaces, early childhood centres and schools only applies to smoking. It does not apply to vaping or products that are not smoked, such as heated tobacco products. Individual employers and business owners decide whether or not to include vaping in their smokefree policies.

The Ministry of Health is considering how best to apply risk-proportionate regulation across all tobacco products including smoked tobacco, smokeless tobacco and vaping products.

Until the SFEA is amended, retailers should continue to trade responsibly and, in particular, not to advertise or sell vaping products to children and young people under 18 years of age.

Consumers of vaping products should not notice any difference as nicotine vaping liquid has been available for purchase in retail shops for some time.

Heated tobacco products might also become available for sale in New Zealand.

First up, it is excellent that MoH is not wanting to extend the ban on indoor use of cigarettes to other reduced harm products. They wish to leave it up to individual employers and business owners, and that is 100% correct. Awesome.

Second, it looks like the former 'grey market' status of vaping e-liquids has been upgraded to legal-to-sell. But, the Ministry considers that all the regulatory controls on advertising in SFEA apply to reduced-harm devices. The Court decision didn't say anything on this front, but it did have much broader language from the judge saying that application of cigarette controls on reduced harm products was contrary to the purposes of the Act.

I expect that means that if someone wanted to sell vaping kit, heat-not-burn devices, or snus, and advertised their products in ways that would be illegal if the product were a regular cigarette, the Ministry might pursue action against them. If the case wound up in front of the same judge, it would be interesting to see whether the judge would deem those restrictions also to be inconsistent with the purposes of the Act. Reduced harm products can do a lot less good if you're not really allowed to tell current smokers about them because of the advertising restrictions. Dhaval Dave et al found that restricting television advertising of e-cigarettes prevents people from flipping from cigarettes to vaping.

But it might wind up being moot depending on how far along the Ministry is in getting a new regulatory framework ready for reduced harm products. If it's a long way off, somebody might be tempted to test the law.

I'm also not sure on what the excise position would be for products like snus or the heets sticks for IQOS would wind up being. They're far less harmful than smoked tobacco. I do not know whether Customs would reckon them to be the same thing as tobacco for smoking, for excise purposes. Vaping e-liquids wouldn't count as tobacco for excise though.

Interesting times.

In related news, my colleague Jenesa Jeram releases her report on tobacco harm reduction tomorrow morning. Stay tuned!