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Trying to grab hold of vapour

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New South Wales has enacted new laws to ban the sale of e-cigarettes to children in the latest move to tighten the legal noose around the supply, use and marketing of the controversial product.

The nation’s most populous state has amended its Public Health (Tobacco) Act to bring restrictions on the sale, display and promotion of e-cigarettes to young people broadly into line with those applying to other tobacco products after NSW Health Minister Jillian Skinner expressed concerns the devices might act as a “gateway” to tobacco smoking for children.

“This is a comprehensive piece of legislation which will guard against the re-normalisation of smoking among the young, as it has the potential to undermine decades of successful anti-smoking efforts in New South Wales,” Ms Skinner said.

The NSW legislation follows calls made by the AMA early this year for the marketing and advertising of e-cigarettes to be subject to the same restrictions as those that apply to tobacco products. 

An AMA Working Group on the issue found that, because e-cigarettes essentially mimic the act of smoking, there were realistic concerns that they would encourage users to move on to tobacco products.

These concerns were heightened after an investigation in NSW found a large number of e-cigarette solutions marketed as nicotine-free actually contained the drug, creating the risk is that non-smokers using them would develop an addiction to nicotine.

The new NSW laws make in an offence to sell or supply e-cigarettes to minors (including through a vending machine) or to smoke them in a car in the presence of a child. In addition, tighter restrictions have been placed on their advertising and display.

Already, it is illegal to sell or supply e-cigarettes containing nicotine anywhere in Australia, and the Therapeutic Goods Administration has not recognised them as a therapeutic aid for quitting smoking.

But regulation of the sale and supply of e-cigarettes that do not contain nicotine is much less clear-cut.

Several states, including Western Australia, Queensland and South Australia, specifically prohibit the sale of devices designed to resemble tobacco products, and the WA Health Department recently won a Supreme Court case arguing that the rule applied to e-cigarettes.

To reduce ambiguity, the Queensland Government last year specified that smoking products included personal vaporisers.

But in several states and territories – including Victoria and Tasmania – the sale and use of e-cigarettes that do not contain nicotine remains essentially unregulated, as long as there is no therapeutic claim made, and it is not marketed as a toy or food to children.

But the AMA Working Group found that much of the marketing for e-cigarettes occurred online, and was clearly designed to appeal to young consumers.

“Many e-cigarettes have a very sleek appearance, are brightly coloured, and use sweet, fruit and chocolate flavoured solutions – all features intended to appeal to younger users,” the Working Group’s report said.

Its concerns have been echoed by the Cancer Council of Victoria, which said the almost total absence of regulation regarding e-cigarettes in some states was extremely concerning, given that they were “designed to mimic the act of smoking, have not been properly evaluated for safety and are clearly promoted to young people, with their fruit, confectionary and energy drink flavours”. 

The AMA has called for national action to curb the marketing and sale of e-cigarettes, arguing that, “it would be an enormous backward step for public health if all the gains in tobacco control made in recent decades were to be undermined by increases in nicotine addiction through the use of e-cigarettes”.

Adrian Rollins