Tuesday, 27 March 2018

Can they vape?

Philip Morris started selling its heat-not-burn product in New Zealand last year. The Ministry of Health sued them for it, saying that it counted under the ban on oral tobacco products in the SmokeFree Environments Act. Philip Morris said that it shouldn't be counted as an oral tobacco product under SFEA, and the Court agreed.

I Am Not A Lawyer. And so I need a bit of advice in reading this ruling. It sounds to me like the official legal ban on vaping has disappeared too. If I recall correctly, the ban on selling vaping products depends on reading the nicotine in the e-liquids as a tobacco product (where derived from tobacco rather than synthesized), and on reading the inhalation of a vaped nicotine-containing e-liquid as being an oral use of tobacco under the SmokeFree Environments Act.

And here's what P J Butler wrote:
The Ejusdem Generis Rule
[30] This rule provides that where particular words describing a genus of things are followed by general words, the general words will be confined to things of the same class as the particular words. Thus, where the words "any tobacco product labelled or otherwise described as suitable for chewing" are followed by "or for any other oral use", the other oral use means a tobacco product used for chewing or an activity similar to chewing.
That sounds to me like ruling out vaping as counting as oral use as well. It is not similar to chewing.

Justice Butler continues:
The Purposes of the Act

[33] As detailed earlier they are as set out in s 3A and s 21. The evidence of Mr Rumsay was that no combustion occurs when 'Heets' is used under normal operating conditions, but "inhalable volatile compounds" are released. Dr Gilchrist's evidence was to the effect that it is the act of burning the tobacco that leads to the to the formation of the majority of harmful chemicals - (my emphasis). Dr Gilchrist quoted from a UK Royal College of Physicians report which contained the following passage:
The main culprit is smoke and, if nicotine could be delivered effectively and acceptably to smokers without smoke, most if not all of the harm of smoking could probably be avoided.
[34] Given this advice, it can be said that the use of 'Heets' while it may have associated risks in itself, is not as harmful or potentially harmful as ordinary cigarette use. This finding would fit squarely with the purposes stated in s 3A(1)(a) and 9(c) and s 21(b) of the Act. The defendant submits that "the outcome the Ministry is seeking with this prosecution is the opposite of what Parliament sought to achieve when passing the SFEA".

[35] I find that the 'Heets' product is not caught within the ambit of s 29(2) of the Act and the charge is dismissed accordingly.
I read this as meaning that all vaping and all heat-not-burn products are currently legal for sale and use in New Zealand. But I am not a lawyer. Am I reading this correctly?

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