Imagine the consequences if a huge pharmacy chain, in intense competition with its rivals for the multi-billion dollar prescription drug market was to say “Ahh bugger it, let’s just ignore the need for a prescription and supply prescription-only medicines to anyone asking for anything.” Anyone wanting antibiotics, codeine, statins, steroids, anti-hypertensive drugs … you name it … could walk in, hand over their money and walk out with whatever drugs they wanted.

The reaction would be swift and iron-fisted, as shown here and here in cases where pharmacists were investigated and disciplined over missing scheduled drugs.

Yet this is in effect what has been happening in Australia since Oct 1, 2021, the date when the only local legal access to nicotine vaping products (NVPs) became via a prescription legally needing to be dispensed at pharmacies.  But as is by now blindingly obvious, only a tiny proportion of people who vape – estimates put this at below 4% — are today getting their vapes in this way. The rest are still buying them openly online, from shops brazenly signed with “Vapes sold here” or from many hundreds of market stalls. Corner shops, petrol stations and an army of on-line sellers are openly defying the law.

So how did we get to this point?

On the tenth anniversary of the eve of the introduction of the implementation of plain packs (Nov 30 2022) health and aged care minister Mark Butler held a press conference in parliament house to announce plans to introduce a raft of reforms to Australia’s already stellar tobacco control policies.

Symbolically, the room purposefully chosen was that used by former health minister in the Rudd government, Nicola Roxon, when launching Australia’s pioneering plain packs implementation, since adopted by 28 countries.

Butler was junior health minister to Roxon for two and a half  years. She attended the Nov 30 press conference. The centrepiece of Butler’s announcement focussed on the exponential rise of vaping in children and teenagers. Butler gave credit to his predecessor Greg Hunt in the Morrison government for trying to take bold action on vapes. Hunt announced  that the government was considering a weapons-grade pincer movement that would simultaneously see (1) nicotine vapes continue being only legally available through pharmacies to those issued with a prescription (2) a ban on personal importation of all nicotine vaping products including liquids.

Within days of Hunt’s announcement, a letter signed by 28 LNP backbenchers opposing Hunt’s plan saw it scuppered in the party room. The initiative was led by the coal lobby’s favourite senator Matt Canavan and signatories included luminaries like Hollie Hughes (“[British America Tobacco] They’re a cigarette company. They don’t define themselves as Big Tobacco. They’re a cigarette company and a tobacco company.”), Tim Wilson. Eric Abetz, George Christensen, Alex Antic, Andrew Laming, Bridget McKenzie, James Paterson, Gerrard Rennick, Amanda Stoker, Dave Sharma and Barnaby Joyce.

Many of the 28 are no longer in parliament. And those who are, are political eunuchs unable to block any bill or gut any policy that has support of the Labor government, the Greens and progressive independents.  These 28 are the people who allowed the floodgates to open on vaping in Australia. If your child vaping today, these people collectively bear huge responsibility for making it so much easier for them.

Enter Big Tobacco

Every transnational tobacco company is now heavily invested in vaping in addition to cigarettes. British American Tobacco (Australia) is backing an initiative called Responsible  Vaping Australia, although you will struggle hard to find its name on the RVA website.

The National Party is the only major political party in the parliament which still accepts tobacco industry funding ($55,000 in 2022 from Philip Morris Limited). Many of the 28 signatories who garroted Hunt’s plan were Nationals, but today they are politically neutered and can only fly their tattered flag of gestured support to Philip Morris.

Under threat of resignation, Greg Hunt was allowed to implement the prescription access side of his plan. But without closing the gate on the ability of people to easily access NVPs almost anywhere, the plan was bound to fail. Why bother getting a prescription if you can walk into a convenience store, a petrol station or make a few clicks on Facebook marketplace after searching for “fruit” and get whatever cheap, sickly sweet flavoured, throw-away vapes you want? The Canavan-led backbench revolt was large enough to sink one entire side of Hunt’s plan while leaving the prescription side’s viability with the gaping hole of removing the ban on imports.

Convenience stores: not the problem, the solution!

Today, the vested interests which loathe and despise the prescription scheme are now in full blown panic mode that they are about to lose their lucrative brazen illegal trade.  They have decided their best bet is to appropriate the caring, concerned, faux outraged narrative of how terrible it is that kids can so easily buy vapes from the heinous “black market”; vapes that are dangerous to kids because they might come from seedy bathtub and kitchen sink chemical workshops in China! Not like the nice clean ones from Big Tobacco.

They have tried to characterise the evil black market as those retailers which have been selling illegal vapes, including to kids. They contrast those retailers with legitimate, law-abiding retailers who would no sooner sell vapes to children as sell their grandmothers for pet food. They are now standing in their sanctimonious ill-fitting white knight hats in the front line of reform advocacy which would see any retailer who puts their hand up to be a “licensed vape retailer” able to sell.

Holding loud hailers, they are chorusing “the prescription model has been a huge failure! It’s now time to properly regulate vapes as a legitimate consumer good and let it be sold  … well, everywhere by responsible retailers just like us.”

The sheer, galactic gall in all of this is, of course, that many of these white hats have been openly breaking the law for years. They now want everyone to have massive amnesia about this and see convenience stores as not the problem, but the solution. They have openly broken the law at industrial levels but are now wanting governments to believe that there could be no better candidates for responsible, law-abiding vape retailing than them. We would just never sell to children, they chorus.

Big Tobacco wrote the playbook for all of this. For years it ran massive PR campaigns expressing how terrible it was that some bad apple retailers sold cigarettes to kids. But did it ever hand back all that unwanted profit it earned from underage smoking? Ermm … no. (see case study here)

The retail nirvanas of those wanting open availability of vapes are nations which have declared vapes to be ordinary “consumer goods”  The UK usually stands on the winner’s podium when vaping advocates want to point to the best model for vaping policy. But today its parliament is voting on a bill to ban all flavoured disposable vapes as vaping by kids goes up and up. There’s a similar story in New Zealand.

Legal threat

In February, lawyers acting for the Australian Association of Convenience Stores tried to intimidate me with the threat of legal action because I had the temerity to point out all this in a Melbourne breakfast radio interview. I stated what anyone who’d not been asleep in a cave for five years knows, that a huge number convenience stores and tobacconists openly sell illegal vapes, including those containing nicotine falsely labelled as being nicotine free.

The next day the head of the AACS, Theo Foukarre, was interviewed by James Valentine on ABC Sydney radio. At one point this exchange occurred:

Valentine: Do you or your association get support from tobacco companies?

Foukkare: So, we represent retailers who sell tobacco …. We have over 100 manufacturers, suppliers of which of three [presumably tobacco manufacturers] are members. They just pay a membership fee and that’s it!

Valentine: You don’t receive any extra funding from tobacco suppliers to put this line that you’re putting?

Foukkare: No. We are representing legitimate retailers like 711, Ampol, Caltex, EG, you name it. All of the reputable retailers. We do not represent the interests of the tobacco industry. We do not represent all of the dodgy retailers that are selling these products illegally. [My italics for emphasis]

After the interview I tweeted “Head of Australian Association of Convenience Stores just told @abcsydney James Valentine that they are not supported by tobacco industry. NOT true.

Tobacco Tactics is a highly regarded research project located at the University of Bath, UK. Since 2011, it has provided fully referenced profiles of individuals and bodies around the world which work with the tobacco industry to further its interests. Its page on the AACS was published in 2022 and last updated on Nov 18, 2022.

The Tobacco Tactics link contains details of the history of tobacco industry support of the AACS beyond their payment of membership fees, so was entirely relevant to the italicised sections of the interview above. So it is indeed not true that the only funding support AACS receives from the tobacco industry is their annual membership fees. Foukkare explicitly denied this (“No.”) in the interview when asked and then had his lawyers demand that I delete the tweet and apologise. I of course refused.

Nationals and NSW Greens adopt tobacco industry friendly policy

Being the only political party still taking tobacco industry donations, the dinosaurs in the National Party have predictably adopted a policy that would see “responsible” retailers allowed to sell vapes. Amazingly, the NSW Greens have also adopted a similar policy, thereby lining up with the company shown on the right of the table below.

BATA is currently looking for a head of business communications who will have the duties  shown below. Understandably, tobacco companies have long struggled to attract top quality staff. The NSW Greens would do well to think about how aligned their new policy is with BAT’s objectives.

Mark Butler requested the Therapeutic Goods Administration to consult with the public over options for reform of the prescription access scheme. Their report on this consultation is now with the government. Butler said publicly in late February

“At the end of the day the Commonwealth will have to act, including potentially on the borders. My predecessor Greg Hunt tried to put an important control regulation in place on this but a range of his colleagues in his party room overturned that regulation within a couple of weeks. So, we have to consider controls at the borders, we have to consider health regulations. I know my state and territory colleagues realise there’s going to have to be some policing resources put into this as well because it is just rampant through the community.”

What needs to happen

First, the federal government can quickly and easily declare all nicotine vaping products prohibited imports. This could be done without legislation in the way that this list of prohibited imports is regularly amended. Significantly, tobacco is included on that list unless imported by those licensed to do so such as tobacco companies.

The government should also add non-nicotine vapes to the list on the grounds that they are being widely used a Trojan horse for nicotine vapes to be retailed by nudge-nudge-wink-wink  “I had no idea” retailers. So-called non-nicotine vapes are widely sold with deceptive labelling that they are nicotine free. But many do contain nicotine. The costs involved in widespread testing for nicotine is one factor inhibiting prosecutions by state health departments. This ruse could therefore be easily avoided by declaring all vapes prohibited.

Second, fines for selling illegal vapes are derisory. This is a emphatically state responsibility, which can similarly be rapidly amended. For example In NSW, the maximum penalty for illegally selling NVPs is 6 months in prison and/or  a maximum of $1600. In the 11 quarters from Jan 1, 2020 to Sept 30, 2022 NSW Health seized 220,322 vapes after inspecting retail outlets and completed just 25 successful prosecutions. Fifty two percent of all illegal vapes seized were removed in the three quarters since Jan 1, 2022.

Any retailer offering illegal vapes for sale today has an almost homeopathically small chance of being prosecuted, and if they were, they would wear even the maximum fine knowing it was just an occasional minor irritating cost in making lots of money from openly breaking the law.

But if fines were significantly ramped up to levels that would give major pause to even the largest tobacconist and convenience franchises selling vapes, many smaller operators would hoist the white flag. 

The TGA has fines that are definitely in that ballpark with fines as high as $106,560 having been issued for alleged illegal advertising of vapes. In November 2022, the TGA fined a NSW medical practitioner $2664 for alleged unlawful advertising of a nicotine vaping product on social media. Now, I wonder who that might have been!

Taiwan last week banned vapes and set fines for selling US$330,000 – US$1.65 million. Such fines would see a stampede out of the market by players across all levels.

Today anyone can text any one of a huge number  of on-line suppliers, pay and have vapes delivered or given a pick-up address. Suppliers phone numbers could be traced, the delivery couriers questioned and  bank accounts used to trace those involved. If kids find it childs’ play to buy vapes, Health Department investigators should have little trouble either. Reserve armies of parents and school principals who know who are supplying kids will fast track this information.

It cannot be emphasised enough that both the commonwealth and state governments need to work in concert on all this. If any state is glacial in significantly upping fines and failing to blitz retailers (and publicise these prosecutions) there will be many players who will continue to sell illegally.

Labor governments have nearly always been in the forefront of Australia’s world-renowned tobacco control policies. The Whitlam government introduced the bill to ban direct tobacco advertising in broadcast media that was implemented in 1976. The Rudd and Gillard governments were global pioneers in plain packaging legislation.

Many said these things and other policies like smokefree workplaces, bars, restaurants and airlines were la la land ideas. But they have been normal now for decades in many countries.

If the Albanese government is the first to ensure that a workable prescription access scheme for vapes is allowed to work by declaring vapes a prohibited import, it will again lead the way globally on a path that Greg Hunt conceived but was thwarted. Many countries which are  being flooded with vapes and seeing a new generation of nicotine dependent kids growing by the month, are very interested in what may happen in the next few months.

Other blogs in this series

Vaping theology: 1 The Cancer Council Australia takes huge donations from cigarette retailers. WordPress  30 Jul, 2020

Vaping theology: 2 Tobacco control advocates help Big Tobacco. WordPress 12 Aug, 2020

Vaping theology: 3 Australia’s prescribed vaping model “privileges” Big Tobacco WordPress Feb 15, 2020

Vaping theology: 4 Many in tobacco control do not support open access to vapes because they are just protecting their jobs. WordPress 27 Feb 2021

Vaping theology: 5 I take money from China and Bloomberg to conduct bogus studies. WordPress 6 Mar, 2021

Vaping theology: 6 There’s nicotine in potatoes and tomatoes so should we restrict or ban them too? WordPress 9 Mar, 2021

Vaping theology: 7 Vaping prohibitionists have been punished, hurt, suffered and damaged by Big Tobacco WordPress 2 Jun, 2021

Vaping theology: 8 I hide behind troll account. WordPress 29 Jun, 2021

Vaping theology: 9 “Won’t somebody please think of the children”. WordPress 6 Sep, 2021

Vaping theology: 10: Almost all young people who vape regularly are already smokers before they tried vaping. WordPress 10 Sep, 2021

Vaping theology: 11 The sky is about to fall in as nicotine vaping starts to require a prescription in Australia. WordPress 28 Sep, 2021

Vaping theology: 12 Nicotine is not very addictive WordPress 3 Jan 2022

Vaping theology 13: Kids who try vaping and then start smoking,would have started smoking regardless. WordPress 20 Jan, 2023

Vaping theology 14: Policies that strictly regulate vaping will drive huge numbers of vapers back to smoking, causing many deaths. WordPress 13 Feb, 2023

Vaping theology 15: The government’s prescription vape access scheme has failed, so let’s regulate and reward illegal sellers for what they’ve been doing. WordPress 27 Mar 2023