Source: Hiberliu- Pixabay
On July 1 2024, the Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024 came into effect across Australia, following its rapid passage through both houses of parliament. The Greens party negotiated their needed support for the government’s bill by requiring pod system vapes with 20mg/ML of nicotine concentration to be sold in pharmacies. This put an end to the plan whereby all vapes would need a doctor’s prescription. Prescription access will still be available for vapes with nicotine concentration of 21-100mg/ML.
The main provisions of the Bill are to:
- Make it illegal for anyone other than a registered pharmacy to dispense or sell any vaping product, whether or not it contains nicotine
- Allow pharmacies to sell vapes “behind the counter” with a maximum nicotine content of 20mg/ML to anyone aged 18 or above. Vapes are classified as S3 products, meaning that they cannot be displayed or in any way advertised or promoted to the public, must be stored in a dispensary and each transaction must involve provision of evidence that the purchaser is aged 18 or over and the provision of advice on use by the dispensing pharmacist. There are no limits on how many vapes a purchaser may buy and no records will be kept on the name or contact details of the purchaser, as occurs (for example) with sales of the cough medicine pseudoephedrine to facilitate individual surveillance of possible multi-pharmacy purchasing.
- The only permitted flavours to be sold are mint, menthol and “tobacco” (I argued in my submission to the Senate enquiry that “tobacco” was an unfortunate inclusion as it may trigger thoughts of tobacco smoking in vapers trying to stop smoking. I suggested some anodyne flavour names like “standard”, “classic”, “basic” or “regular”. Nicorette NRT gum uses “classic”. I do not believe any NRT products are flavoured with “tobacco”. Opportunity may arise to amend this provision down-the-track).
- Vapes will be sold in “plain packs”, in the same manner that all S3 or above drugs are sold. To me, this provision is of minor importance because unlike smokers, vapers do not carry their vapes around in the packaging in which it was sold. These are immediately discarded by vapers, so any efforts to glamourise vapes via packaging is moot – quite different to cigarette packs which are taken out and displayed each time a new cigarette is taken from the pack.
- The vape itself will also be required to conform to a standard appropriate to their S3 pharmaceutical status. Just as we do not see people with asthma using brightly coloured and uniquely shaped puffers, vapes will also look like a dull therapeutic good rather than act as a “look-at-mine!” identity signalling fashion accessory. School epidemics of nicotine patch wearing are unknown because patches have zero cachet as cool items to display and compare.
- Maximum penalties for importing or supplying vapes intended sale outside of the registered pharmacy channel are severe: for individuals importing this is 5,000 penalty points` (ie: $330 x 5,000 = $1,650,000) and 7,000 penalty points (ie: $330 x 7,000 = $2,310,000) for corporations. For corporations selling it is 70,000 penalty points (ie $330 x 70,000 =$23,100,000) and 7,000 for individuals (ie: $330 x 7,000 = $2,310,000). These penalties can also involve up to 7 years in prison.
These high penalties reflect the large scale criminal importation, distribution and sale of illegal vapes that has occurred since the importing floodgates were held way open by a Liberal/National Party backbench revolt that gutted former health minister Greg Hunt’s prescription access/import ban in 2022. Previous maximum fines were treated with contempt, barely skimming the petty cash box in the unlikely event of a prosecution.
The bottom line in all this is that the confusing mess that in the past characterised illegal vaping sales and derisory levels of investigation and prosecution is now over. Any sale of any vapes outside of pharmacies is prohibited with those concerned facing very serious penalties.
So this is a very powerful law, the first where any nation has limited vape access to pharmacies. This seems highly likely to greatly reduce children’s access to vapes because the professional commercial culture of pharmacies differs radically from that in convenience and vape stores. Pharmacies are ubiquitous across the country, with online provisions for those living in remote areas.
Chinese vape exports to Australia have continued to plummet since January 2024, following the ban. Many reports are being received about the price of illicit vapes skyrocketing, putting them out of reach of kids’ pocket money limits.
Reporting illegal vape sales
Illicit drugs never disappear entirely from communities in spite of being banned. But their access is incomparably harder than tobacco and now vapes. This is reflected in drug use statistics in minors, where regular illicit drug use is far less common than that for nicotine products and alcohol.
The new laws promise greatly reduced vape access by kids, but research efforts will now be important to understand the routes that will still be supplying vapes to school children.
Schools across Australia are in the frontline of the vaping epidemic in children. Research indicates that the most common ways that kids obtain vapes have been via friends, followed by purchasing vapes from retailers. On-line purchasing has been uncommon, with platforms like Snapchat being used to arrange pick-ups. “Secret” or pseudo shopper methods have often been used to determine shops which sold cigarettes to children. These will undoubtedly be reprised with vape surveillance.
When children are found to have vapes at school, these are invariably confiscated and parents informed. During this process, children frequently tell all about where they have obtained the confiscated vapes. So schools have been and will continue to be invaluable sources of information about retailers who continue to sell illegal vapes to minors. This information can be then used by agencies empowered to investigate and prosecute illegal selling.
The TGA
The Therapeutic Goods Administration (TGA) is empowered to investigate and prosecute illegal supply (sales), promotion and importation of vapes. Its website provides summaries of such prosecutions and the penalties that have been imposed (see this example where fines of $5m were imposed).
You can report illegal selling or promotion of vapes to the TGA via this form (note that at the time of writing, the form does not make explicit mention of vapes, but is a general form for reporting concerns about the sale and promotion of any therapeutic good. This is however, the correct form for reporting about illegal vape sales).
States and territory health departments are also charged with investigating prosecuting illegal vape sales (see contacts below). At the time of writing, some have not yet harmonised their penalties with those applying at the Commonwealth level. The TGA is working closely with state governments, so until state penalties are aligned with those of the TGA, notifying the TGA as well will be sensible.
NSW or phone your local Public Health Unit on 1300 066 055
Northern Territory 08 89992691 ask for the tobacco compliance officer
Queensland: phone 13 74 68
Tasmania phone 1800 671 738
Victoria: Report cases to your local police station
Always keep a record of` your report, including the date you made it and the name of the person you spoke with if you phoned your report in.
Simon Chapman AO 