Last updated: December 2018
Suggested citation: Suggested citation: Greenhalgh, EM, Grace, C & Scollo, MM. InDepth 18B: Electronic cigarettes (e-cigarettes). In Scollo, MM and Winstanley, MH [editors]. Tobacco in Australia: Facts and issues. Melbourne: Cancer Council Victoria; 2018. Available from: http://www.tobaccoinaustralia.org.au/chapter-18-harm-reduction/indepth-18b-e-cigarettes
In Australia, the regulation of e-cigarettes is encompassed by a number of laws relating to tobacco control, therapeutic goods, poisons and consumer protection laws, and is shared between the Commonwealth and the states and territories. Their current status in Australia is as follows:
Under the Standard for the Uniform Scheduling of Poisons (Cth) (‘the Poisions Standard’), nicotine is classed as a schedule 7 ‘dangerous poison ’, except where it occurs (1) in tobacco products prepared and packed for smoking or (2) in preparations for human therapeutic use.
When in preparations for human therapeutic use, nicotine is considered a schedule 4 ‘prescription only medicine’.i Generally speaking, in order to be legally supplied as a ‘prescription only medicine’, an e-cigarette containing nicotine would first need to be approved by the Therapeutic Goods Administration (TGA) for use as an aid to smoking cessation. To date, no e-cigarette has been TGA approved as a cessation aid.1 Therefore, as a general rule, the retail sale of e-cigarettes containing nicotine is illegal in every Australian state and territory.
There are, however, some very limited exceptions to the general requirement that nicotine e-cigarettes would first need to be approved by the TGA for therapeutic use before they could be supplied in Australia. In particular, individual users may be able to lawfully buy and use e-cigarettes that contain nicotine by importing them (or nicotine refill capsules) for personal use under the TGA personal importation scheme, subject to certain restrictions (including that they must be for personal/family use, adhere to quantity limitations, and meet restrictions on prohibited imports). Personal importation requires a medical prescription from an Australian doctor. Even if imported under this scheme, however, consumers still need to comply with the poisons laws that operate in their particular state or territory,1 which would require them to be granted the appropriate permit to purchase and/or use the nicotine. The extent (if at all) to which Australian doctors have prescribed nicotine is not known. Given that there are already a number of TGA-approved nicotine-containing therapeutic products available without restriction for smoking cessation, it may well be that in practice, Australian doctors would not choose to prescribe an unapproved and untested product for this purpose. It is also of significant concern that nicotine sourced from overseas may not be produced to a consistent standard (strength, consistency, purity, quality), be appropriately packaged and labelled, and that use of these products may therefore expose the user to additional unknown risks.
E-cigarettes that do not contain nicotine can be sold by retailers in Australia in some jurisdictions as long as the manufacturers do not make therapeutic claims (i.e., they cannot claim that the product is a cessation aid). Non-nicotine e-cigarettes may be possessed in all jurisdictions. Individuals can also import non-nicotine e-cigarettes for personal use without a prescription. However, if the products are marketed as a cessation aid (and are therefore classed as a therapeutic good), their importation is subject to the restrictions outlined above under the TGA Personal Importation Scheme.
It is worth noting that there is no way to determine whether or not an e-cigarette contains nicotine, short of subjecting it to laboratory analysis. This may have implications for effective law enforcement.
In the ACT, the sale of electronic cigarettes that do not contain nicotine is currently allowed provided the business holds a tobacco licence, the person purchasing the product is over 18 years, and no therapeutic claim is made about the product. Use of e-cigarettes is also banned in smokefree areas, and the advertising, display, and marketing of products is strictly regulated.2
In Western Australia, the Tobacco Products Control Act 2006 (s. 106) states that a person must not sell any food, toy or other product that is designed to resemble a tobacco product or package. In a Western Australian Supreme Court decision on 10 April 2014, e-cigarettes were found to resemble a tobacco product and the seller of these e-cigarettes was convicted of this offence. The seller subsequently made an application to appeal the decision of the Supreme Court, and have the matter heard before the WA Court of Appeal. The matter was heard by the Court of Appeal in November 2015 and the appeal was unanimously dismissed in a decision handed down on 10 March 2016.3
In NSW, the Public Health (Tobacco) Act 2008 prohibits the sale or supply of e-cigarettes and accessories to minors; restricts vending machine locations for e-cigarettes; and provides NSW police with powers to seize e-cigarettes from minors. It also restricts the display of e-cigarettes and accessories and bans the use of electronic cigarettes in cars carrying children. The use of e-cigarettes is also prohibited in smoke-free areas.4, 5
Queensland’s Tobacco and Other Smoking Products Act 1998 was extended from 1 January 2015 to apply to e-cigarettes (referred to in the Act as personal vaporisers). These products may not be sold to minors, used in smokefree areas, or advertised, promoted or displayed at retail outlets.6
In South Australia, the Tobacco Products Regulation Act 1997 (s. 36) states that ‘A person must not sell by retail any product (other than a tobacco product) that is designed to resemble a tobacco product.’ In 2015 the SA Government established a Select Committee to investigate and report on e-cigarettes and any legislative and regulatory controls that should be applied to their advertising, sale and use. The Select Committee’s final report was tabled in February 2016, and recommended a regulatory approach that would see the products regulated in much the same way as tobacco products.7 The Tobacco Products Regulation (E-cigarettes and Review) Amendment Bill 2018 (SA) was introduced into parliament in July 2018, and was passed on 27 November 20188 The Bill amends the Tobacco Products Regulation Act 1997 (SA) to prohibit the sale or supply of e-cigarettes to minors, the retail sale of e-cigarettes without a license, the use of e-cigarettes in legislated smokefree areas and the sale of e-cigarettes from temporary outlets and vending machines. In addition, retail advertising for e-cigarettes will be regulated in a similar way to retail advertising for tobacco products. At the time of writing, the Bill was awaiting royal assent and had not yet come into effect.
In November 2017, the Public Health Amendment (Healthy Tasmania) Act 2017 (TAS) was passed.9 The Act came into operation on 29 November 2017, and amended the Public Health Act 1997 (TAS) to prohibit the sale of e-cigarettes to minors, the use of e-cigarettes in legislated smoke-free areas, the sale of e-cigarettes without a license and the sale of e-cigarettes in specialist tobacconist stores. In addition, retail advertising of e-cigarettes is now regulated in much the same way as for tobacco products.
In Victoria, new laws were passed on 13 October 2016 which amended the Tobacco Act 1987 (Vic) to regulate e-cigarettes.10 The new laws came into effect on 1 August 2017 and include a ban on the sale of e-cigarettes to minors, a ban on the use of e-cigarettes in legislated smoke-free areas, a ban on the sale of e-cigarettes from vending machines, and restrictions on advertising and promotion of e-cigarettes products in retail stores.
There is currently no legislation in the Northern Territory which specifically relates to e-cigarettes. However, in August 2018 the Tobacco Control Legislation Amendment Bill was introduced into the Legislative Assembly by the Minister for Health, the Hon Natasha Fyles MLA.11 If passed, the Bill would amend the Tobacco Control Act (NT) and Tobacco Control Regulations (NT) to regulate e-cigarettes.
On 23 August 2018, the Legislative Assembly referred the Bill to the Economic Policy Scrutiny Committee for inquiry and report by 27 November 2018. The Committee’s report has been tabled, and recommends passage of the Bill by the Legislative Assembly.12 At the time of writing, the Bill had not yet been passed by the Legislative Assembly. However, the Northern Territory Department of Health has indicated that if the Bill is passed, the new laws are expected to come into effect in early 2019.13
The new laws would include a ban on the sale of e-cigarettes to minors, a ban on the sale of e-cigarettes by minors to customers in retail outlets, and a ban on the use of e-cigarettes in smoke-free areas. The retail advertising and promotion of e-cigarettes would also be regulated in the same way as for tobacco products.
i. Except when used as an aid for withdrawal from smoking in preparations for oromucosal or transdermal use (e.g., nicotine patches or inhalers). Such products fall outside of the Poisons Standard altogether and are therefore available without a prescription.
1. Therapeutic Goods Administration. Electronic cigarettes. Department of Health, 2015. Available from: https://www.tga.gov.au/community-qa/electronic-cigarettes
2. ACT Government. Regulations on e-cigarettes come into effect today. 2016. Available from: https://www.cmtedd.act.gov.au/open_government/inform/act_government_media_releases/meegan-fitzharris-mla-media-releases/2016/regulations-on-e-cigarettes-come-into-effect-today
3. Government of Western Australia Department of Health. Electronic cigarettes in western Australia. 2016. Available from: http://ww2.health.wa.gov.au/Articles/A_E/Electronic-cigarettes-in-Western-Australia
4. Smoke-free environment act 2000 (NSW). Available from: https://www.legislation.nsw.gov.au/#/view/act/2000/69/full.
5. Passenger transport (general) regulation 2017: (NSW). Available from: https://www.legislation.nsw.gov.au/#/view/regulation/2017/473.
6. Queensland Government. Electronic cigarettes. 2016. Available from: http://www.qld.gov.au/health/staying-healthy/atods/smoking/devices/
7. Parliament of South Australia. E-cigarettes. 2016. Available from: https://www.parliament.sa.gov.au/Committees/Pages/Committees.aspx?CTId=3&CId=323
8. Tobacco products regulation (e-cigarette regulation) amendment bill 2017 (sa). Available from: https://www.legislation.sa.gov.au/LZ/B/CURRENT/TOBACCO%20PRODUCTS%20REGULATION%20(E-CIGARETTE%20REGULATION)%20AMENDMENT%20BILL%202017/B_AS%20INTRODUCED%20IN%20HA/TOBACCO%20REGULATION%20AMENDMENT%20BILL%202017.UN.PDF
9. Public health amendment (healthy tasmania) act 2017: (TAS). Available from: https://www.legislation.tas.gov.au/view/html/asmade/act-2017-042.
10. Tobacco amendment act 2016 (vic). Available from: http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/51dea49770555ea6ca256da4001b90cd/096B85B9948C101DCA2580500009EAE9/$FILE/16-055aa%20authorised.pdf.
<11. Tobacco control legislation amendment bill 2018: (NT). Available from: https://legislation.nt.gov.au/en/LegislationPortal/Bills/~/link.aspx?_id=2EE8FE5D5AD840F7950D220F64FD56DA&_z=z.
12. Legislative assembly of the northern territory, economic policy scrutiny committee. Inquiry into the tobacco control legislation amendment bill 2018. (NT) Available from: https://parliament.nt.gov.au/__data/assets/pdf_file/0015/600315/56-18-Report-for-Tobacco-Legislation-Control-Amendment-Bill-2018.pdf.
13. Alcohol and other drugs. Northern Territory Department of Health, 2018. Available from: https://health.nt.gov.au/professionals/alcohol-and-other-drugs-health-professionals/tobacco