Regulatory Catch-22?

Last month's court decision, and subsequent MoH position statement, mean that heat-not-burn tobacco products are legal to sell in New Zealand. 

But the MoH position statement said that other tobacco control regulations will apply to reduced-risk tobacco and tobacco-derived products, barring the ban on indoor use in workplaces.

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.

This could be reasonably read as meaning that MoH intends also that the plain packaging regulations intended for cigarettes would also apply to a pile of reduced-harm products. It might apply to vaping products sold by companies that are upfront that the nicotine is derived from tobacco, and also heat-not-burn products that heat tobacco sticks.

The plain packaging regulations require display of graphic warnings about the dangers of smoking. Pictures of diseased lungs, gangrenous limbs and the like. They all say things like "Smoking causes lung cancer".

But standard commercial packaging regulations prohibits misleading claims on packages.

So it could be the case that providers of tobacco-derived reduced harm products would be simultaneously required to put on graphic warnings that might lead consumers to believe that the warnings apply to the product within the package, and banned from putting those warnings on the packages because the warnings would be misleading when applied to reduced-harm products.

It would be nice if MoH could provide a bit more clarity around this stuff. Would a company get in more trouble for complying with the plain packaging rules when selling tobacco-derived vaping product, or for not complying with the plain packaging rules? Ideally, plain packaging shouldn't apply where there isn't combustion.