It is illegal in Australia to buy nicotine for vaping, either separately or in an e‑cigarette, without a prescription. The sale, supply and possession of nicotine liquid is controlled under a mixture of national, state and territory laws that regulate it as a prescription drug when used for therapeutic purposes, and otherwise as a dangerous poison available to only those authorised to handle it.
From October 1, the law will be clearer. Changes to the Poisons Standard, following a review by the TGA last year, leave no doubt that nicotine liquid for vaping will be legally available only on a doctor’s prescription.
Pressure to loosen the law has been intense yet the majority report of a Senate committee on the regulation of e-cigarettes last November held firm. As only registered pharmacists can fill prescriptions, the laws preventing convenience stores, service stations and vape shops from selling e-cigarettes containing nicotine will remain. Few Senate committee members were convinced by hand-on-heart assurances from Ampol/Caltex that their service station staff would be highly trained if allowed to sell vapes.
The committee was chaired by Liberal Hollie Hughes. Hughes and Matt Canavan were rolled by all other members for their de facto anything-goes plan to allow nicotine juice to be sold almost anywhere, with any flavouring, in any quantity or nicotine concentration. A Financial Review exposé showed Hughes socialising with and being lauded by a British American Tobacco Australia lobbyist and vaping advocates with links to Phillip Morris, despite government guidelines about interaction with tobacco companies.
In June 2020, Health Minister Greg Hunt tried to stop vapers from importing liquid nicotine for personal use. This is allowed under the Personal Importation Scheme if the buyer has a prescription from a doctor registered in Australia. Backbench pressure from Nationals and some in the Liberal’s right flank saw Hunt’s attempt quietly dropped.
No nicotine products have been approved by the TGA. This means that doctors cannot prescribe them (other than under the Personal Importation Scheme) unless they have been specially authorised. It also means that the products have not been tested for safety, quality or efficacy. For users, the message is ‘buyer beware’.
Nearly all Australian health and medical groups are united that if nicotine liquid is to be available, it should only be via prescription and not sold over the counter. They also agree that the TGA is the appropriate regulator but there are limits on its controls, the advice it can give on the use of products that it hasn’t tested or approved, and which haven’t been established to have any therapeutic benefit.
The TGA’s preferred prescription options are currently disturbingly minimalist in what they require of prescribing doctors. If things proceed as is, prescribing doctors may be exposed to potential legal liability and vapers to avoidable health risks, and the tsunami of illegal on-selling to teenagers without much stronger enforcement of the law will continue. The TGA would allow a doctor to simply write “nicotine liquid” or “nicotine salts” for three months supply. Just as no doctor would ever simply prescribe “methadone” or “codeine” without specifying a dose, so should it be equally unacceptable to do this on a prescription for nicotine.
Then let’s consider vape flavours. Some 2.3 million Australians have asthma and most regularly use inhalers for breathing relief. No nebuliser drugs anywhere in the world are sold flavoured because no regulatory agency, including the TGA, has ever declared inhaling flavouring chemicals to be safe. Those importing nicotine juice have 15,000 flavours to choose from which they inhale an average of 173 times a day – 62,780 times a year. This is a ticking chronic disease time-bomb across long-term use, unless properly regulated by the TGA with its brief of monitoring adverse reactions.
Here’s how some of these risks can be minimised.
First, Greg Hunt’s ban on personal importation of nicotine liquid should be urgently reinstated.
Second, if that fails politically, then reflecting a December 2020 recommendation of a WHO expert committee, the government should ban the importation, sale and possession of all vapable nicotine not in sealed “pod” systems which prevent users from altering the contents by boosting the nicotine dose and adding unregulated flavours.
Third, all prescriptions should be required to specify a particular product that has met minimum standards. The TGA has released for public consultation a draft standard setting out minimum requirements for labelling, packaging and contents. This should only be a starting point. Vapers importing from overseas may be unknowingly consuming products mixed in crude, unregulated “bathtub labs” by opportunist entrepreneurs. Any health problems arising may see vapers take legal action against doctors whose non-specific scripts opened the gate to use of these products.
Fourth, the TGA is putting no limit on nicotine concentration or volume of liquid: GPs can technically prescribe litres and litres of highly concentrated neurotoxin. This is a reckless loophole that could be easily closed.
Fifth, the TGA’s proposed standard for nicotine liquid should specify that the products must made with pharmaceutical grade ingredients and meet declared high product manufacturing standards.
And sixth, with federal border security staff able to inspect only a tiny fraction of incoming mail, and state health department inspectors having many other duties than checking if nicotine is being sold illegally away from pharmacies, fines for those exploiting the loophole provided by the Personal Importation Scheme to import without a prescription or sell to other people rather than use it themselves need to be set at seriously deterrent levels. The maximum penalty for illegally importing liquid nicotine products is $222,000. This maximum is likely to apply to large scale importing efforts by criminals, But fines for individuals importing without prescriptions need to be substantial too or many take their chances with what will be low risk detection rates.
Australian vaping retailers have shown widespread willingness to ignore the law and kids currently find it very easy to buy vapes like those shown below. Allowing personal importation to continue, already banned for tobacco, will see predatory on-sellers supplying and expanding this lucrative market. This seriously risks addicting hundreds of thousands of Australian teenagers to nicotine who would have never used it in any form and causing cardiorespiratory disease in years to come. Few doctors will issue nicotine prescriptions to minors.