Monday, 28 May 2018

Northland DHB missed the memo

Earlier this month, the Ministry of Health clarified that sale of nicotine-containing e-liquids is legal. The Smoke-Free Environment Act's prohibition on the sale of tobacco products for oral use does not apply to heat-not-burn products, or to vaping products.

Northland DHB seems to have missed the memo. We'll come back to that. Because it looks like the memo has changed.

The Internet Archive does not have a record of the Ministry of Health's original version of the page. But I definitely remember that it said nothing about snus. The lack of clarification around snus has been a matter of some interest and discussion.

But the website now has this, which I'll screenshot:
The relevant bit: 
“In Philip Morris v Ministry of Health [2018] NZDC 4478 (the decision), the District Court found that all tobacco products (except types that are absorbed through the oral mucosa eg. snus and chewing tobacco) may be lawfully imported, sold and distributed under the Smoke-free Environments Act 1990 (SFEA).”
But that isn't what the District Court said. The District Court, at Paragraph 30, said this:
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.
If the Ministry is now defining absorption through the oral mucosa as being an activity similar to chewing, that's up to them - and potentially contestable in court. But it isn't the Court's definition. The Court didn't even use the term mucosa anywhere in the decision. 

The Court also noted that the ban on sale of less harmful products like heat-not-burn was inconsistent with the purposes of the Act. Snus is far less harmful than smoked tobacco. Jenesa Jeram's report on tobacco harm reduction covers snus in section 4.1.

I wonder about a few things:
  1. When the change to the Ministry's webpage was made;
  2. Why the editing was not noted;
  3. Whether the Ministry has taken any recent advice on the risks associated with snus use;
  4. What that advice might have been;
  5. Whether the Ministry views a ban on snus as being consistent with the aims of the Act, and the evidential basis for that view;
  6. The basis on which the Ministry decided that "an activity similar to chewing" implied a ban on anything involving absorption through oral mucosa. 
But back to where we started. The sale of e-cigarettes is totally not banned. The Ministry's clarification does very clearly say that the sale of vaping kit is fine. And yet we see this today from @WellingtonVaper
I guess Northland DHB didn't get the memo. Some of the memo seems to have changed, but not that part. The restrictions on display and advertising would apply, though, if the DHB could show that the nicotine in the products were derived from tobacco rather than synthesised. That's silly and still in need of fixing in the rules, but it's my understanding of the rules as they now are.

Previously [and as update]: Regulatory Catch-22

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