Chapter 2Views on the bill
2.1Overall, submitters supported the intent of the bill and particularly welcomed all measures aimed at curbing the emerging epidemic of vaping among young people and children. Inquiry participants expressed grave concerns about increased rates of vaping use and recognised the importance of ensuring the legislation closes the current loophole, which has seen the proliferation of vaping products laced with nicotine, which are sold as non-nicotine vapes.Health experts supported the proposed model, which supports legitimate patient access to therapeutic vapes. A number of submitters, including former smokers who now vape, expressed concerns about the proposed model and put forward alternative models to regulate vaping products in Australia.
2.2Firstly, the chapter discusses the risks and harms of vaping, especially on young people and children and how the proposed legislation will address these issues, including addressing the aggressive marketing of vaping products aimed at young people.
2.3Then the chapter explores the proposed model, which enables smokers to access vapes as a cessation tool. It examines the way people will access vapes, the benefits of the model and supports offered to people addressing their nicotine addiction. It also outlines the concerns expressed by some submitters who are in favour of other models to regulate vaping in Australia.
2.4Finally the chapter discusses the views on law enforcement and penalties issues, including the concerns over illicit trade and the growing black market and the definition of commercial possession in the civil penalty provisions of the bill.
The final stage of the government’s vaping reforms
2.5The bill represents the final stage of the government’s vaping reforms, following a series of regulation changes and reforms intended to address the issues of the illicit vaping market and its harms to the Australian community.
2.6The Department specified the work that has been undertaken to achieve effective tobacco control and vaping reform in Australia, including:
implementation of Australia’s National Tobacco Strategy 2023–2030;
establishment of a National E-Cigarette Working Group in February 2023;
establishment of the National Vaping Working Group in November 2023 to oversee the development and implementation of a National Vaping Enforcement Framework;
establishment of an Illicit Tobacco and E-Cigarette Commissioner within the Australian Border Force;
banning importation of all disposable vapes from 1 January 2024; and
from 1 March 2024 banning importation of all vapes, limiting therapeutic vape flavours to mint, menthol and tobacco only and closing the Personal Importation Scheme for vapes.
2.7Many submitters to the inquiry expressed concerns about the harmful public health effects of vaping, both on individual health outcomes but also on population wide outcomes as a result of increased nicotine uptake.
The risk of a new generation becoming addicted to nicotine
2.8The majority of submitters highlighted concerns about the increasing rates of vaping use amongst youth in Australia and submitters agreed that the issue of high levels of youth vaping needed to be addressed by the government.
2.9Evidence presented to the committee indicates that the rate of youth vaping is continuing to rise. Importantly, Associate Professor Michelle Jongenelis told the committee that young people are the most likely demographic to vape with the number of adolescents and young adults that currently vape increasing approximately five-fold since 2018/19.
2.10Cancer Australia emphasised to the committee the risk of non-smoking young people who vaped being three times more likely to take up smoking cigarettes in comparison to non-vapers, flagging that this represented an additional emerging risk in relation to the issue of youth vaping. Moreover, young people who vape are likely to be doing so with a very high frequency:
Two-thirds to three-quarters of young people who have vaped started doing it before trying a conventional cigarette. About one-third children aged 12-17 who reported vaping at least once in last 30 days were using them daily or most days.
2.11Further, many submitters highlighted the unique health harms that can be caused when adolescents vape; including a range of mental health issues in addition to physiological and brain development issues. Professor Emily Banks further elaborated on this issue by stating:
Young people are much more prone to addiction than older people. If you look at people who have a lifetime smoking habit, they will on average have started as teenagers. That's really because the brain is plastic at that time—you're laying down habits and you're laying down neural pathways. What we see with young people is that they can get readily addicted and then that can lead to a lifelong issue with addiction. We also see young people as particularly vulnerable to poisoning and toxicity via inhalation, particularly with young children.
2.12Evidence also indicates the vapes being used by children and young people are products that contain nicotine, even if they are marketed as non-nicotine or nicotine free products, with recent evidence from a study showing that 98 per cent of vapes confiscated from school students in NSW contained nicotine.
2.13Cancer Council Australia underscored the urgency of the situation by noting:
Use of vaping products is rising exponentially among young people. We have a rapidly closing window of opportunity to prevent a new generation of Australians from becoming addicted to nicotine.
2.14Of the issue of children being addicted to nicotine as a result of vaping, Mr Andy Mison of the Australian Secondary Principals’ Association discussed the impacts:
In terms of how it manifests in kids behaviour, it's the same way that withdrawal symptoms from cigarettes would—agitation, irritation, irritability and a tendency to engage more readily in conflict cycles with other kids and with teachers. It distracts them, they're not focused on activity—healthy or otherwise. When challenged, it will often lead to what might be considered typical of an addict's response. It very quickly goes to a conflict cycle, which is not in the interest of the learner, the other kids in the environment or the teacher who's trying to get the job done.
It means a decrease of kids engaging in healthy physical activities because of the health impacts that smoking or nicotine and vaping is having on kids' lungs and respiratory systems. They're less inclined to get outside and be active and all those things that we know are really important for our young people. It's very concerning and it's not something we should be dealing with in schools.
2.15Mr Mark Brooke of the Lung Foundation of Australia further elaborated:
… e-cigarette use and vaping use have increased dramatically over recent years, particularly amongst young people and young adults. We are concerned and remain concerned for the future of those young people and the lung health of young adults. Whilst the long-term health impacts remain unclear, one of the many recognised short-term impacts includes addiction to nicotine.
Deliberate targeting of young people
2.16Submitters explained to the committee the specific tactics that are utilised to target young people in relation to vaping; including targeted advertisements, unregulated social media advertising and vaping products being sold in high adolescent traffic areas.
2.17The Australian Medical Association highlighted that:
Vaping companies spend most of their marketing budget on magazine and television advertising. Analysis showed that more than half of vaping adverts in the USA included features to appeal to youth, such as animation, content related to positive sensations, young actors, humour, promoting mood and individuality.
2.18Associate Professor Becky Freeman provided an illustrative example of what this marketing looks like in practice:
I was just on Instagram this morning and double-checked, and the influencer ad is still there. It's a young woman. She's putting on make-up. She's putting on a really fashionable outfit to go to a winter festival, and, at the very end of getting ready, she takes the BAT vape, puts it in a designer handbag and puts it over her shoulder, and she's all ready to go to the festival. To me, that is very clearly marketing to young people.
2.19Concerningly, researchers from the National Centre for Youth Substance Use Research found that ‘even after accounting for vaping product use and established risk factors, exposure to vape advertisements at gas stations and on social media significantly correlated with lifetime, past 12-month, and past 30-day e-cigarette use among young individuals aged 12-18’.
2.20It was further explained to the committee that attitudinal shifts are occurring within the youth population that encourage vaping ‘due to the widespread availability and promotion of vaping as a “safe” and “cool” alternative to smoking’. Moreover, these effects continue to self replicate with a tendency towards tobacco use, with the Australian Council on Smoking and Health noting:
Adolescent susceptibility to smoking in 2022/23 is now equivalent to that of 2002, providing alarming evidence that the increase in vaping over the same time threatens to jeopardise tobacco control efforts to reduce smoking among young people.
2.21Some submitters further elaborated on the unique mechanisms through which young people are targeted by vapes; including disposable vapes disguised as toys, and other non-descript objects, as well as targeting individuals through flavours designed to replicate lollies or sweet flavours.
2.22Associate Professor Becky Freeman underlined the importance of this legislation to stop the targeting of young Australians:
We also know from the Gen Vape study that young people find it incredibly easy at the moment to get their hands on a vape. They can literally go into any shop, any store and purchase one themselves. We need this legislation to end that easy access. A 14-year-old on their way home from school shouldn't be able to pop into a shop where they would buy lollies, ice cream or chocolate and also pick up a vape at the same time. This legislation that has been proposed closes down that non-nicotine loophole that has been exploited by retailers who, in broad daylight, sell illicit, highly addictive products to young kids.
2.23Further, Asthma Australia emphasised the importance of the bill and its advertising restrictions. It discussed that the bill:
… will help to stop the advertising of e-cigarettes and reduce their appeal in terms of flavours, colours and packaging. These are important measures to reduce the appeal of e-cigarettes to children and young people and urgently needed.
2.24The Department specified the intent of the legislation to deliberately address the issues of widespread vaping use amongst children and young people. In acknowledging the impact of widespread marketing and targeted advertisements directed at young people, as well as the use of colours and flavours to draw in young people, the Department highlighted that ‘the reforms are intended to reduce rates of vaping and smoking, and prevent long term adverse effects on population health, particularly among youth and young adults’.
2.25Furthermore, Professor Anthony Lawler of the Department also highlighted that the bill:
… acknowledges and addresses the risk that wide availability of vaping products presents to public health, particularly for children and young Australians. Strengthened approaches to compliance will prevent vapes from being readily and effectively marketed and available to young people.
2.26In addition to the legislative reforms outlined in the bill, the Minister has partnered with Australian state and territory Health and Education Ministers to write to school principals, raising awareness of the reforms and resources available to support schools, students and their families to address vaping.
The impact on Aboriginal and Torres Strait Islander peoples
2.27Participants in the inquiry highlighted the unique impact of vaping and smoking on Aboriginal and Torres Strait Islander communities.
2.28Associate Professor Raglan Maddox emphasised that Aboriginal and Torres Strait Islander people and communities are ‘disproportionately harmed’ by tobacco use and have historically been targeted by the tobacco industry; a trend which is now continuing with the proliferation of vapes through Indigenous communities.
2.29As highlighted by Professor Tom Calma there has been a significant increase in vaping in First Nations communities over recent years:
One of the simplest answers is that we've got about 250 staff, located across the nation, who work on adapting an Indigenous smoking program. I brought in quite a significant number of them from remote communities in 2022. There was very good evidence of vaping in remote Australia. We reconvened in 2023 and it was rife. It was everywhere. Prior to our reaching remote communities, there was evidence of people vaping in urban environments and regional environments, but it hadn't really progressed. The big question was: how did it enter the communities so fast? It was really the illicit sale, and that was done not by Aboriginal and Torres Strait Islander people but by contractors coming into the community, as well as some organised groups, who were making it available.
2.30Associate Professor Raglan Maddox further discussed the prevalence of vaping in Aboriginal and Torres Strait Islander communities, highlighting early findings of his research:
We have had focus groups and interviews with many, many communities that raise concerns about vaping, regardless of whether we are there to talk about vaping. The conversations have been around the pervasive nature and the ability for industries to manipulate and target children in particular—but not just children—under the false pretence that this is a nonaddictive product, a healthier product or a safer product. Unfortunately, we've had many interviews where young people have thought that by taking up this product it might not be addictive. Then, as they process, they realise that they've been vaping in bed, and waking up to vape, sleeping with the vape under their pillow, showering with their vape and other things, and that they might be addicted.
2.31To support the proposed legislation, the government is providing an additional $141.2 million for the Tackling Indigenous Smoking program. As described by Cancer Australia, the Tackling Indigenous Smoking program is:
… an Indigenous-led program offering locally tailored tobacco control activities in communities, led by 37 regional teams. Local activity is supported by mass-media campaigns, individual cessation advice provided by Aboriginal and Community Controlled Health Organisations and via Quitline. Independent evaluation of TIS has demonstrated positive impact on attitudes towards being smoke-free, smoking less, and intention to quit in areas serviced by TIS teams.
A legislative model that closes the loopholes
2.32A number of submitters supported the legislation, noting that it would close the legal loophole ‘whereby non-nicotine vaping products are exempt from the prescription-only model’.
2.33Mr Scott Phillips from Kidsafe Western Australia told the committee that the bill ‘will put an end to the youth vaping epidemic by closing loopholes and boosting enforcement while observing access to therapeutic vapes for those trying to quit smoking’.
2.34Some submitters highlighted the dangers of this loophole noting that vapes that are advertised as ‘non-nicotine’ often contain nicotine and are subject to weaker regulation and enforcement. Associate Professor Raglan Maddox discussed the issue of illegal vaping and the associated risks of addiction:
Most people who vape accessed nicotine e-cigarettes without a prescription (87%) despite being illegal to do so. Further, almost one third of people who vape, had tried to quit vaping in the past but have been unsuccessful.
2.35As highlighted earlier in this chapter, evidence received by the committee shows that young people are developing nicotine addictions, not knowing their vapes contain nicotine and that this is having significant impacts on their mental and physical health and wellbeing.
2.36The Australian Council on Smoking and Health highlighted the difficulties this creates in terms of enforcement:
The fact that non-nicotine vapes may legally be sold makes it much more expensive and difficult for authorities to target shipments for inspection, to seize products for testing and to secure prosecutions for illegal import, storage and sale of nicotine vaping products.
2.37Some submitters emphasised that the current legislative environment means that adult smokers already require a prescription to legally access nicotine vaping products and this will remain unchanged in this legislation. However, as stated by Associate Professor Becky Freeman, the difference lies in the fact that:
… the proposed laws will actually make enforcement possible, as retailers, both bricks-and-mortar and online, will no longer be able to openly and easily sell illicit products under the guise that the vapes they are selling are supposedly “non-nicotine.” Implementing the prescription model as intended requires effective enforcement tools – this Bill is that tool.
2.38Participants in the inquiry expressed concerns about the inability to pursue appropriate enforcement of illicit activities on the basis of the current legal loopholes. Some submitters supported the proposed reforms given they established clear and indisputable powers for enforcement agencies to start to address illicit vaping activities that occurred outside of the prescription model. As the Lung Foundation of Australia emphasised:
The proposed reforms allow for appropriate and effective enforcement by States and Territories. As all e-cigarette products and devices will only be able to be purchased through an Australian pharmacy with a prescription, the enforcement of retailers selling any e-cigarette product or device outside of this model will be more easily and effectively enforceable.
2.39Furthermore, the Australian Council on Smoking and Health argued that this model will assist in reforming the widespread issues with illicit vapes currently seen in Australia:
While utilisation of the existing prescription model for vapes has been relatively low, the “free for all” market has negated the need to use it. The Bill will resolve problems with the existing legal framework that have rendered border enforcement all but unfeasible and will facilitate patients seeking prescriptions from a medical practitioner, who will be equipped to support them.
2.40Cancer Council Australia emphasised why this would be preferred in contrast to a regulatory sales model:
Regulating sale of vaping products by retailers would not guarantee compliance with laws and would require a huge enforcement effort at the local level. Restricting importation and sale of vaping products to the pharmaceutical supply chain by contrast will significantly reduce the number of players in the field and consequently the cost of compliance monitoring and will make illegal sales much more visible.
2.41Mr Richard Lee of Liber Pharmaceuticals discussed the consequences of failing to pass the legislation:
Failure to pass these regulations will ensure that enforcement agencies aren't equipped to address the rise of the illicit market, and it's a matter of time before the efforts to stop illegal imports are simply bypassed.
2.42Of the enhanced enforcement mechanisms specified within the bill, the Department noted:
The provisions in the Bill build on global evidence on tobacco control, which demonstrates that reducing the social acceptability of e-cigarettes, ensuring effective and comprehensive governance arrangements and regulatory settings across the supply chain, and addressing the availability of informal distribution networks are critical to reducing the illicit supply of vapes.
2.43Moreover, the Australian Border Force specified its support of the provisions of the bill, noting that:
… the ability to seize and immediately destroy vaping goods would significantly enhance the ABF’s ability to effectively deal with imported vaping goods and would significantly reduce the operational burden of implementing the vaping goods reforms.
Support for the proposed model
2.44A number of submitters emphasised that Australia has a history of world-leading tobacco reforms, that have subsequently been replicated in other countries, such as plain package reforms for cigarettes and noted that the proposed reforms continue this trend.
2.45In relation to the proposed model outlined in the bill, the committee received feedback in support of the legislation, noting that it balanced enabling access to vapes as a therapeutic device, while also facilitating the implementation of enforcement mechanisms to stop the provision of illicit vapes to children.
2.46As the Department outlined, the purpose of the legislation is to support:
… legitimate patient access to therapeutic vapes, while restricting the importation, domestic manufacture, supply, commercial possession and advertisement of disposable single use and non-therapeutic vapes.
2.47As the Cancer Council of Australia outlined, the reforms proposed in the bill are:
… not just about keeping vaping products out of the hands of children; it is also about controlling the sale and supply of a product that—while having some potential clinical benefit—also contains a highly addictive substance. Continuing to regulate nicotine vapes as prescription-only products is the only feasible means of preventing nicotine addiction among people who are over the age of 18.
2.48Furthermore, the Lung Foundation of Australia emphasised the importance of the reforms as seeking to regulate vaping devices for their intended use: smoking cessation. The Lung Foundation of Australia stated that the:
… prescription pathway takes them out of the hands of young people and non-smokers while still allowing for people who are trying to quit smoking to access them under medical supervision.
2.49Further, the Asthma and Respiratory Foundation of New Zealand ‘strongly supports the prescription-only regulation of vaping products in Australia and strongly recommends the Committee endorse the proposals included in the legislation in order to avoid a similar situation to that of New Zealand’.
2.50Mr Richard Lee, of Liber Pharmaceuticals, explained the importance of effective safety evaluation of the products to be covered under the proposed legislation:
In 2020 the TGA designated vaping products a schedule 4 medicine after a thorough risk-benefit analysis. This is how all pharmacologically active manufactured ingredients are made available in Australia. We see it as absurd to suggest that only one product—nicotine—should be treated differently from all others, including other forms of nicotine replacement therapy.
Vaping as a smoking cessation tool
2.51The committee heard of the original intended purpose of vapes as a smoking cessation aid. A number of participants in the inquiry shared their individual stories about quitting smoking after starting vaping. An example of the benefits of vapes as a smoking cessation tool was provided by Mr Christopher Franzi of Shoozitech:
In 2011, after 14 years of cigarette usage, I transitioned to vaping and have not smoked since. My health improvements were significant: enhanced fitness, better sleep quality, weight loss, and cessation of snoring.
Concerns about the unknown effects as a smoking cessation tool
2.52While acknowledging the success some individuals have had using vaping as a smoking cessation tool, it is important to recognise that there are a range of therapeutic smoking cessation treatments, including nicotine gum or patches, which are available and come more highly recommended for the purposes of smoking cessation. Current recommendations by the Royal Australian College of General Practitioners describe e-cigarettes as a ‘late- or last-line therapy for smoking cessation’.
2.53As emphasised by Dr Michael Bonning of the Australian Medial Association:
… as a prescriber, I would think of this as a fourth-line intervention in terms of how I would interact with people who want to undertake a nicotine cessation pathway from either smoking or vaping.Like many things, it's about risks and benefits. I would use less-risky, known efficacious products first. Then I would consider vapes—a regulated, medicated vape.
2.54Moreover, it was highlighted that in order for vapes to be considered as an effective smoking cessation aid, they must be utilised in partnership with healthcare professionals and accompanied by behavioural support.
2.55Professors Chapman, Daube and Peters specified the importance of differentiation between these existing forms of nicotine replacement therapy (NRT) and the prevalence of nicotine vaping products (NVPs) across the market:
There is zero evidence of children or adult non-smokers sharing NRT gum or comparing NRT patches as a “lifestyle choice”. The pernicious difference between NVPs and NRT is that NVPs are flavoured, often come in luridly coloured apparatus and can deliver high, rapidly addictive nicotine dose. These differences are critical in explaining why NRT is today available in supermarkets but NVPs are to be prescribed.
2.56Further, submitters supported the intent of the legislation to treat vapes as a therapeutic device, to be provided under the supervision of a medical professional. Cancer Council Australia highlighted:
Australia’s prescription access model does not ‘ban’ the use of vaping products, but it can and should prevent those with commercial interests from profiting from and promoting addictive patterns of use. The prescription access model ensures vaping products are used only after consultation with a health practitioner that can empower individuals to make informed choices about their health based on full information.
Additional supports for accessing smoking cessation under the new model
2.57In regards to the requirements for Australian adults to access a prescription in order to access vapes as pharmaceutical products, it was highlighted that:
The Government has also introduced streamlined access arrangements that make it quicker and easier for GPs and Nurse Practitioners to prescribe. The Australian Medical Association has stated that it is confident that doctors will be able to meet demand.
2.58Furthermore, Dr Michael Bonning of the Australian Medical Association noted:
If we look historically, GPs have managed smoking cessation and vaping cessation over a long period of time. They've managed smoking cessation for decades now. It's a normal part of what we do. That is modelling 900,000 extra consults against about 180 million, so it's a very small increase. It is, however, a very important increase and needs to be supported and managed well, because GPs are the front line of this interaction. These will not be just singular interactions; they will be a course of engagement with patients. But it is something that is well within the hands of GPs out in the community, and certainly we are seeing good outcomes from a behavioural and motivational interviewing model, which we are taught through our training but which we also, I think, use on a regular basis for many addictive products.
2.59The Department further emphasised that the proposed model within the legislation will offer appropriate opportunities for smoking cessation support:
Ensuring that vapes are only accessed with medical supervision via pharmacies provides an opportunity for users to receive appropriate advice from a health professional on the risks associated with their use and other tailored health advice.
2.60Recognising the potential of vapes as a smoking cessation device, the Department emphasised that the intent of the legislation is to effectively treat them as such:
As vapes have been marketed and used in Australia for the therapeutic purpose of smoking cessation, it is appropriate that they are subject to the same regulatory controls as any other therapeutic goods.
Further support for smoking cessation and public education
2.61The Department further specified that this legislation will be supported by broader actions for education and communication related to the reforms and how individuals will be impacted.
2.62The Department is:
supporting health practitioner education on the regulatory reforms, codesigned with health practitioners and delivered by the TGA, RACGP and the Pharmaceutical Society of Australia;
developing webinars for national health investigators, policing authorities and prosecutors about the proposed reforms;
supporting the Minister to communicate with school Principals to raise awareness of the reforms and resources available to support schools, students and their families to address vaping.
2.63Some submitters to the inquiry also stressed the importance of a comprehensive public health education campaign to ‘equip teachers, families, parents, carers and children with evidence-based information about the dangers of vaping’.
2.64For example, inquiry participants emphasised the need to develop resources for schools, teachers and parents. At a hearing, Mr Damien Ellwood, President of the Australian Council of State Schools Organisations said supports needed would include:
Properly targeted, well-rounded information to teachers, principals, school-leaders and families. Our survey indicated that most families are concerned about the health effects of vaping. The parents and carers have indicated that they are seeking the information from a whole range of sources but they are not confident about talking to young people about the risks and the issues around vaping. So they really need that information and it needs to be targeted.
For teens, they probably need first-person examples of where things have gone wrong with vaping—the health effects that are coming forward—so that they can relate to someone of their age and the impacts it's having on them.
2.65Associate Professor Raglan Maddox further highlighted the existing opportunities for further nicotine cessation support:
… to increase resourcing, including training and funding to improve referral pathways to tobacco and nicotine cessation supports, and capability and capacity building to ensure the health workforce can provide effective evidence-based nicotine cessation supports.
2.66The need for enhanced support for smoking cessation services targeted towards those who are most significantly affected by vaping was emphasised. VicHealth discussed the importance of this holistic approach:
Legislation is of critical importance, but it must happen in tandem with support for people who wish to quit nicotine and prevention efforts with young people, including in schools. … Targeted cessation support services will be crucial for young people addicted to nicotine alongside the declining availability of harmful, non-therapeutic vapes if these reforms are passed.
2.67Professors Chapman, Daube and Peters commended that the measures in the bill ‘are not being implemented in isolation, but as part of a comprehensive approach that seeks to reducing smoking and its harms’. Particularly the bill would:
… ensure effective controls on access to and marketing of e-cigarettes and an ever-increasing range of further novel products that will attract children and young people to a new range of addictive products. We also note that the Government has made a commitment to substantially increase funding for enforcement and public education, and that this approach has been supported by all states and territories.
2.68The Department reiterated its commitment to this approach by outlining the specific measures aimed at expanding smoking and vaping cessation support and funding for public health campaigns aimed at addressing tobacco and vaping. These will include:
a national campaign to target young people, their parents, carers and communities, as well as a stream of activities dedicated to reaching teachers and the education sector;
a national campaign to target adults, with a focus on priority and at-risk population groups;
a national online cessation hub that contains information, tools, resources and a system to direct consumers to the best support mechanisms to assist them quit smoking and vaping;
redevelopment of the My QuitBuddy app to support smoking and vaping cessation;
clinical guidance updates to support the health workforce, developed and delivered by relevant health professional bodies such as the Royal Australian College of General Practitioners and the Pharmaceutical Society of Australia;
improved access to Quitline services across the country; and
the expansion of the Tackling Indigenous Smoking Program.
Recommendations for an alternative approach
2.69While submitters differed in their perspectives for the best mechanism for reform, participants in the inquiry tended to agree that there was a need for reform to the current system. As effectively summarised by the Alcohol and Drug Foundation:
Australia’s current approach to the regulation of vaping products has been unsuccessful to date. The supply of unregulated vaping products in retail outlets is of significant concern, as a large majority have been found to contain nicotine, and sellers are operating with effective impunity.
2.70Submitters recommended a range of alternative options to the proposed approach outlined in the bill, including regulatory models.
Regulation similar to alcohol and tobacco
2.71Some submitters recommended a legislated model similar to alcohol and cigarettes, which would include regulation of vaping sales to adults only through licenced vaping outlets, with strong controls on imports, advertising and packaging and labelling requirements. Under a model such as this, the potential benefits of taxing vaping products for government revenue were also highlighted. Additionally, some submitters argued that such a model would work better compared to the proposed model, arguing the proposed model would operate as a prohibition model and be unlikely to succeed.
Proposed models – the United Kingdom and New Zealand
2.72A number of submitters sought to discuss the international case studies of New Zealand and the United Kingdom.
2.73In New Zealand, a regulatory model has been pursued, including a minimum age of purchase, a licencing model and requirements for products needing to be compliant with labelling, product quality and nicotine concentration limits. There are also restrictions on flavours and colours. However, there are continuing concerns in New Zealand about the widespread availability of vapes, vaping in schools and educational institutions and calls for greater enforcement powers.
2.74Comparatively, the United Kingdom specifies vapes as adult consumer products that can be sold from unlicenced retail stores and online. A minimum age of sale is specified, as well as particular labelling and health warning requirements and limits on nicotine concentration.
Concerns with international models
2.75However, some submitters maintained the need for caution in evaluating the example of the United Kingdom:
Whilst the approach taken in the UK was originally backed by some health organisations, many public health experts have subsequently acknowledged that the UK’s initial approach “has backfired” resulting in a significant increase in children vaping, providing clear evidence that a minimum purchase age is not adequate protection. These concerns are reflected in the general population, as the majority of UK adults— across the political spectrum—now support measures to enhance vaping regulation, such as banning bright colours and names of sweets on vapes, and banning the promotion of vapes at point of sale.
2.76For example, following Australia’s lead in banning disposable vapes, a number of other countries have enacted similar reforms recently:
Numerous other countries are increasingly announcing and implementing strict controls to prohibit or restrict the supply, availability and promotion of e-cigarettes in view of their public health harms. For instance, New Zealand, the United Kingdom, France, Belgium and Scotland have recently announced plans to prohibit the supply of disposable single use vapes.
2.77Dr Sandro Demaio of VicHealth emphasised the importance of caution in relation to following the lead of international countries:
This is a global challenge and countries which have regulated vapes with a non-prescription approach—such as the UK and New Zealand—are now seeing some of the highest rates of youth vaping in the world. In fact, New Zealand has the second highest rates of youth vaping in the OECD. This is not a path we want to follow.
2.78The Asthma and Respiratory Foundation of New Zealand noted:
Under our retail model, there are currently more than 1500 Specialist Vape Retailers (SVRs) registered in New Zealand - more than four times the number of KFC and McDonalds stores combined, and this does not take into account the 4000 convenience stores and service stations.
Overall, Kiwis are the world's second biggest vapers, behind Estonia, according to the OECD's 2023 global health snapshot despite new regulations implemented by the Government to curb the vaping epidemic.
2.79Moreover, Professor Emily Banks provided further perspective on the issue of international examples:
I can also add that 34 countries do not allow the consumer sales of nicotine vaping products—and that covers 41 per cent of the world's population—and a further 25 per cent have very strict regulations. For example, China is only allowing tobacco flavour for its own internal markets. We often hear it stated that Australia is in an outlier position, but in fact it's kind of in the middle. There are large portions of the world where e-cigarettes are not legal as consumer products. We do tend to see lower youth use in the countries where it's not available as a consumer product.
Proposed pharmacy only model
2.80Comparatively, other submitters emphasised the potential associated with a pharmacy only model, which would see vapes sold in pharmacies by pharmacists only, similar to nicotine gum, patches and inhalers. Emeritus Professor Wayne Hall noted that this model would remove the barrier of accessing a doctor’s prescription, while also maintaining the ability for individuals to access vapes as a therapeutic smoking cessation device under supervision.
2.81A few submitters highlighted that some doctors are concerned about prescribing nicotine liquid or vaping devices as smoking cessation tools and that eliminating a doctor’s prescription may be a useful consideration in relation to the proposed legislation.
Support for a harm reduction approach
2.82The Queensland Network of Alcohol and Other Drug Agencies emphasised the importance of regulation as a mechanism to ensure safety and quality:
Many of the documented harms from vaping use are associated with a poorly regulated market, and a lack of quality testing, with evidence showing that risks increase:
• when products have a high nicotine concentration or greater volume
• where e-liquids have been adulterated or are an ‘at-home’ preparation
• if products are inadequately labelled or child-resistant packaging is not used
• with the promotion and marketing of some products, including with flavourings
• in situations where products have been personally imported.
2.83The Alcohol and Drug Foundation further spoke to these issues of regulation and safety, highlighting support for an approach that:
… balances the accessibility of nicotine vaping products for individuals wishing to access them, while ensuring that access is appropriately limited to minimise harm in the community.
2.84A number of submitters also emphasised the importance of a consistent approach to drug regulation being applied to vaping, in line with the broader approach taken in the National Drug Strategy 2017–2026. Particularly, submitters recommended a harm minimisation approach being taken where people are supported to access vaping products as a mechanism to avoid use of cigarettes as the more harmful tobacco products.
The need for safety and chemical regulation
2.85A number of submitters expressed concern about the specific types of chemicals identified within vapes. As the Lung Foundation of Australia emphasised, toxic chemicals found in e-cigarettes include:
heavy metals such as nickel and silicon;
volatile organic compounds such as benzene, which is found in car exhaust and can be toxic at sufficient doses;
cancer-causing chemicals such as acetaldehyde, acrolein, and formaldehyde which are known to cause lung and heart disease;
phthalates which are used to make plastics, many have reproductive toxicity, and can be endocrine disrupting; and
pesticides.
2.86It was also additionally noted the harms that can be caused from the interaction of certain chemicals found in vapes with heat:
The main constituents of the vapour that create the plumes are vegetable glycerin and propylene glycol.
Inhalation of propylene glycol damage small airway epithelial cells in humans, as well as causing DNA damage and cell death. When propylene glycol (and glycerine) is heated, depending on the specific product, it can form aldehydes such as formaldehyde and propionaldehyde, which are known carcinogens. Acute and chronic risks to health including poor oral health, lung damage, cancer, and breathlessness can later follow.
2.87Furthermore, it was specified that there are limitations to the known health impacts of vapes:
Lack of evidence means their safety for most major outcomes has not been established, including for cancer, cardiovascular disease, reproductive health, mental health, development in children and adolescents, sleep, wound healing, and neurological, endocrine, olfactory, optical, allergic and haematological conditions.
2.88The Department acknowledged these limitations on safety, stating:
The wide and unpredictable variation in vapes, including unknown manufacturing quality, and the ability of users to customise device settings and vary the quantity and concentration of vaping substances, make it difficult to provide a consistent assessment about the safety and effects of vapes as a group.
2.89Professor Anthony Lawler of the Department further elaborated on the history of regulation for the purposes of addressing safety:
As I think we've highlighted, in late 2021 there was a decision by the scheduling delegate under the scheduling framework to schedule it under schedule 4. That was, as with any assessment, in light of the safety, quality and efficacy and, importantly, the potential for risk and toxicity. So that decision was taken at that time based on the clinical evidence. There has not since then been an emergence of clinical evidence that would change that benefit-risk profile, and that is one of the reasons why the proposed regulatory framework outlines a schedule 4 prescription by a medical or nurse practitioner and then dispensing by a pharmacist.
2.90The Department also emphasised the safety measures which would be undertaken under the proposed legislation:
Vapes must comply with enhanced quality and safety standards and be supplied only in pharmacy settings, with a prescription being required to access a vape containing nicotine.
The need for greater enforcement and coordination to target the illicit market
Concerns about the illicit market
2.91Some participants in the inquiry discussed the concerns about illicit products and the black market. As outlined by 360Edge:
Vaping products sold through the black market present a significantly higher risk of harm because they are unregulated. This means they lack quality and safety controls, are easily accessible by youth, are inadequately labelled and may contain harmful substances.
2.92Queensland Network of Alcohol and Other Drug Agencies argued that the current situation with illicit vapes in Australia could be linked to a high level of restriction of the market:
… an appropriate balance needs to be achieved to ensure that there is sufficient regulation in place to support the safety and quality of vaping products in Australia to meet the current market demand, but that this is not so restrictive that it supports the continued growth of an unregulated market or a shift back to smoking tobacco.
2.93Mr Greg Isaacs, owner of Flavourhype Distribution, warned the committee about a potential rise in black market activities:
The majority of my customers have told me that they will most likely resort to the black market or just go back to smoking, because they cannot purchase what they need. Pharmacies are pricing these products to be more expensive than a pack of smokes.
Fears of increased criminal engagement in the vaping market
2.94Of the proposed legislation, some submitters expressed concerns about the existing black market around illicit nicotine products in Australia and the risk that these reforms might expand these markets. Other submitters also expressed concerns about the increase in organised crime groups seeking to access this market.
2.95A few submitters highlighted the illicit tobacco market as a cautionary parallel to the proposed vaping reforms and expressed concerns about the risk of firebombings, violence and extortion as a result of heightened criminal involvement in the market.
2.96Furthermore, Spano Group discussed the need for:
… a more nuanced approach to the regulation of vaping products. It’s critical that the Committee consider the causes of this current crisis including the demand for the products and ease of supply by criminal networks in comparison to the barriers an adult currently has to accessing regulated legal products.
2.97Ritchies Stores also highlighted the need for regulation in order to address the proliferation of illicit goods:
We understand that some consumers will do their best to follow the rules, by obtaining prescriptions from their GPs and purchasing their vaping products from pharmacies as proposed by the Government. However, given the experience with illicit tobacco and the fact that the illegal supply chains for vaping products are already well-established, illegal products will still be available and sold to adults and children.
2.98Mr Michael Outram, Commissioner of the Australian Border Force (ABF) also expressed support for the bill, stating:
Why I'm so supportive of this approach is because we've got the permit scheme that is different, and it's a prohibition. We're not just taxing it, we're actually prohibiting it, but with a nuance around the permit scheme. So we're not preventing Australians who legitimately need access to these goods from getting hold of them. Or there may be challenges that we've talked about. But from a border point of view and an enforcement point of view, we've got the benefits of a prohibition and the permit scheme coming in together, which makes the regulatory work much simpler for us.
If it's just open, we'll have far more of these goods coming into the border. It'll be harder for us to discern which is legitimate and which is not. It will also be easier for organised crime to divert legitimate goods into the illicit market.
What I'm saying here is that I think this scheme gives us the best chance to limit the size of this market and the access to these goods for kids.
2.99Mr Outram also used the comparison to tobacco to explain why this legislation would make enforcement simpler and more effective:
It is very hard for our officers to discern what's legitimate and what's not, because tobacco is a legal product in many cases. We have to go through a lot of processes and steps, regulatory wise, to determine whether the import is lawful or not. In this case, with this prohibition measure in place, we'll have a very simple list of permits that are in place. Everything else won't be permitted. We won't have to get it examined, we won't have to get it taken to laboratories and we won't have to get it tested. If it's a vape or it contains vaping products, we can seize it and destroy it, to put it simply.
2.100The Department further explained how the bill was intended to address issues of the illicit market:
Further, the Bill would make unlawful vapes easier to detect and reduce opportunities for illicit trade. This is because nicotine content would not need to be demonstrated through laboratory testing before action could be taken under the TG Act. This would address the common practice observed throughout the industry of concealing and otherwise misrepresenting nicotine content, which has hampered enforcement efforts both domestically and at the border. The intention of the new offences and civil penalty provisions is to deter unlawful conduct, among commercial and criminal groups seeking to profit from vapes.
2.101The ABF further elaborated on the benefits of the proposed legislation in its support for the proposed powers for seized vaping goods to be dealt with in a manner that is deemed appropriate by the Comptroller-General. As the ABF described:
This can include the immediate destruction of the goods which provides streamlined administrative processes and reduced storage time.
The ABF strongly supports this provision of the Bill, as the ability to seize and immediately destroy vaping goods would significantly enhance the ABF’s ability to effectively deal with imported vaping goods and would significantly reduce the operational burden of implementing the vaping goods reforms.
2.102Also, other participants to the inquiry noted that concerns about the illicit market continuing to operate should not stop the progression of this legislation. Professor Tanya Buchanan emphasised this by stating:
… we know that, even in countries where they have had so-called retail sales, that hasn't stopped an illicit environment. I think we need to be really clear that illegal sales will continue in a retail environment. In the UK, intelligence-led testing found one in three shops knowingly sold vapes to people under the legal age and that, in those instances, we also saw the illegal sale of products that don't meet regulatory standards in those countries. So we understand that there is not a perfect system that will absolutely stamp out illegal sales, but this bill will enable all enforcement agencies to take a more streamlined approach because it will be clear that, if something is being sold outside of the prescription pathway model, it is an illegal product and it can be seized.
The need for greater clarification around commercial possession
2.103Submitters called for more specific clarification around commercial possession limits, to ensure that individuals with vaping goods for personal use were not inadvertently targeted by this legislation.
2.104As specified by the Lung Foundation of Australia, this clarification is needed to avoid:
… the criminalisation of individuals for personal possession of e-cigarettes, particularly for young people who have been targeted with these products. Criminal convictions for personal use can be detrimental to education and employment opportunities, and risk ongoing stigma.
2.105Some submitters recommended the specification of the amounts for a commercial quantity that the government intends to include in the regulations be publicly clarified, to ensure certainty that individual vape users will not be criminalised.
2.106Professor Emily Banks further stated that this was necessary to ensure that the enforcement of the legislation was targeted at those involved in supply, rather than individual users experiencing nicotine addiction:
It is important to note that e-cigarettes are highly addictive and that those using e-cigarettes are often addicted as children, which makes it particularly important that any punitive measures are clearly targeted at those supplying e-cigarettes, rather than at individual users.
2.107The Department further clarified this as the intended purpose of the bill, stating:
Importantly, the controls in the Bill would not prohibit possession of vapes for personal use. The Bill would not penalise personal possession. Individuals will not be penalised for vaping. The Bill only seeks to prevent possession for the purposes of commercial supply.
2.108At a hearing, Dr Erin Lalor of the Alcohol and Drug Foundation told the committee:
We also see it as important that the commercial quantities within the bill are defined in regulation, as there needs to be some flexibility in defining these, particularly given that we are still learning how much of a product an individual may have for personal use.
2.109Dr Bridget Gilmour-Walsh of the Department further clarified the proposed mechanism for determining a commercial quantity at the hearing, stating:
We have been doing some work on what method we would use to determine what a commercial quantity should be, looking at (a) what a person might reasonably need to use and (b) what sort of quantities a person might reasonably hold. We were thinking that perhaps something around three months supply might be adequate, taking into account that people in remote areas might need to stock more than the one-month standard, but we're open to having further discussions about that and receiving further information about that to inform that decision.
Coordination across jurisdictions
2.110The bill reflects the commitment across the Commonwealth and state and territory governments to address the challenges of illicit vapes and the harms they cause. The Department emphasised the need for action given the widespread issues of non-compliance with the existing legislation:
Normalisation of vaping has the potential to disrupt Australia’s significant achievements in tobacco control. Evidence of widespread non-compliance with existing Commonwealth, state and territory laws also underscores the need for action.
2.111The responsibility for regulatory settings related to vapes is shared amongst the Commonwealth and states and territory governments and this bill represents a coordination of powers to ensure the efficacy of enforcement and compliance.
2.112As highlighted by the Department, this legislation is the culmination of coordinated work to address these issues, including an agreement between Health Ministers to extend the operation of the Therapeutic Goods Act to restrict the importation, domestic manufacture and supply of all vapes.
2.113There was also further agreement amongst state and territory health ministers that the Commonwealth would lead the enforcement of new importation and manufacturing controls, advertising controls, and controls on therapeutic vapes; the states and territories would lead the enforcement efforts at the point of wholesale and retail supply. The bill would enable further enforcement powers for state and territory governments and facilitate information sharing between states and territories and other compliance and enforcement bodies.
2.114As highlighted by the Department:
All Australian governments are working together to support a coordinated and comprehensive national response to the regulation of vapes through stronger legislation, enforcement, education and support.
2.115The Lung Foundation of Australia highlighted the importance of this coordinated approach, noting that it would ensure appropriate and effective enforcement by states and territories. For example, Mr Scott Phillips of Kidsafe Western Australia explained to the committee ‘some harmonisation, some consistency of legislation across the country is really important’ and that, there needs to be ‘clear penalties’.
National Vaping Working Group
2.116To further consolidate coordination mechanisms in relation to this issue, the National Vaping Working Group was established in November 2023 and oversees the development and implementation of a National Vaping Enforcement Framework.
2.117The National Vaping Working Group includes senior health and law enforcement representatives from the Commonwealth, including the TGA and ABF, as well as all states and territories. The Department of Home Affairs commented that:
The intent of the Bill will support the strong collaborative compliance and enforcement approach being undertaken by the NVWG to deliver an end-to-end compliance model that closes regulatory and legislative gaps. This will be achieved by preventing the importation, domestic manufacture, supply, commercial possession and advertisement of non-therapeutic and disposable vaping goods, irrespective of nicotine content or therapeutic claims, across all levels of the supply chain. The appointment of Australia’s first Illicit Tobacco and E-cigarette Commissioner will also complement these efforts.
2.118Secretary Susan Pearce, in her capacity as co-chair of the National Vaping Working Group, further elaborated on the importance of this mechanism for coordination:
… part of the work that we're doing through the working group is very much about clarifying roles and responsibilities between health departments and other agencies. Not all states and territories look the same in respect of who does the compliance and enforcement work on the ground. It's really about the partnering, as I mentioned before, and sharing information—for example, the MOU that New South Wales Health is establishing with New South Wales Police. We're able to share that information with other jurisdictions so that they can look at how that applies to their own jurisdiction. As Commissioner Outram has already mentioned, we are looking at the issues around the disposal and transport of vape seizures. We're really keen to make sure that all of our states and territories have this framework but also that there is flexibility within it that allows them to apply it to their own local jurisdiction so that it meets their needs.
Committee view
2.119Australia has long been regarded as a world leader in tobacco control, from the original reforms to tobacco advertising, through to tobacco plain packaging reforms. The proposed reforms outlined in this bill are an opportunity to continue Australia’s role as a global leader in tobacco control. It is especially important to ensure that the progress achieved to date is not lost through complacency about the threat posed by vaping, especially to young Australians.
2.120The committee undertook this inquiry in accordance with its obligations under the World Health Organization Framework Convention on Tobacco Control and reaffirms its commitment to its work in assessing this legislation in a transparent and accountable manner.
2.121Throughout the inquiry, the committee heard of the extent of the public health harms that are already attributable to the use of vaping products. Now is the time for action, as intervention must occur before the harms caused by vaping are allowed to continue and the harms of nicotine addiction are perpetuated for another generation. These harms are already visible and alarming, notwithstanding that it is not currently possible to know the full extent of the health harms caused by vaping.
2.122The committee was particularly disturbed to hear of the prevalence of illicit vaping use amongst children and young people. The evidence shows a new generation of Australians are becoming addicted to nicotine through these products. The committee heard of the significant impacts of such addiction on the physical and mental health of young people. The committee is deeply concerned that these products are being intentionally targeted at children through their design, advertisements and the deliberate location of retailers selling these vapes near schools and high traffic areas.
2.123The committee acknowledges the intention of vaping products may have been as smoking cessation devices but is of the view that the current situation without effective regulation or enforcement mechanisms represents a significant danger to the Australian community - especially young Australians - and the nation’s progress to date in tobacco and nicotine product reforms. While vapes have been shown to provide smoking cessation support in some instances, it is clear that the most widespread use of these devices currently is not for these purposes.
2.124The proposed pathway for accessing vaping devices as a therapeutic product ensures the vaping products are provided in a safer and regulated manner that is in accordance with all other therapeutic goods in Australia. The committee notes the views of some inquiry participants, mostly adults who have quit smoking through vaping products, who believe that the proposed model will make it difficult for them to access vapes and are fearing that it will lead them to smoke cigarettes again. However, the committee is of the view that the proposed model will enable them to access the vaping products they need in a therapeutic way similar to other Nicotine Replacement Therapies. The Committee notes suggestions from some witnesses that pharmacists could play a greater role in providing access to therapeutic vaping goods that may warrant further consideration. The Committee further notes that this suggestion could improve ease of access to therapeutic goods.
2.125The Committee acknowledges concerns raised by some participants regarding the potential for individuals accessing vaping products to be inadvertently captured by offence provisions in the bill. The Committee notes, however, evidence from a range of witnesses regarding personal possession defences provided in the Bill and the objectives of the bill outlined by the Minister and Department of Health and Aged Care.
2.126Moreover, the committee acknowledges the concerns that were raised across the inquiry about the emergence of the illicit market and the increase of unregulated and harmful products that make false claims about nicotine content. It is concerning to the committee that there is a legal loophole which enables this illicit market to function, with limited enforcement remedies available to law enforcement and health agencies. The committee recognises the bill as an effective mechanism to address these legal loopholes and is reassured to hear from enforcement agencies that the legislation will “significantly enhance” the ability of law enforcement and health authorities to crack down on imported vaping goods and illicit operators who seek to profit from these harmful devices.
2.127Evidence the committee received crystalised the utmost importance of action being taken to address the widespread issue of illicit vapes to protect Australia’s progress in tobacco control and harm reduction and to ensure future generations continue to minimise their consumption of tobacco products.
2.128The legislation will also enact mechanisms that ensure comprehensive coordination across the Commonwealth, state and territory governments. Having an established national coordination framework will ensure the responsiveness and effectiveness of enforcement and detection efforts in relation to these illicit products that cause so much harm.
2.129Importantly, the commitment from the government to deliver a comprehensive public health awareness campaign and further funding for smoking cessation support services complements the measures in the bill and ensures that there will be effective support for those who need it to access support to help them quit nicotine products.
2.130The committee acknowledges the concerns expressed by some submitters and the Scrutiny Committee about lack of definition of what constitutes a commercial quantity of vaping goods as this will be set out in regulations. However, the committee accepts the evidence regarding the importance of giving the Minister flexibility to set a commercial quantity to ensure an effective response to industry attempts to subvert enforcement.
2.131The proposed legislation represents a comprehensive and considered approach to address all facets of the issue, complementing Australia’s National Tobacco Strategy: providing appropriate enforcement mechanisms to address illicit vaping products, targeting those who seek to gain commercially from the vaping market and providing holistic cessation support for people addicted to nicotine products.
2.132Ultimately, this bill is about protecting young Australians from the very real and alarming harms of vaping.As such, the committee recommends that the bill be passed.
2.133The committee recommends that the bill be passed.
Senator Marielle Smith
Chair