In 2024, Australia is implementing stringent new regulations on vaping products, marking a significant shift in the country's approach to managing vaping and its associated health risks. The new laws, enacted under the Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Act 2024, aim to tighten controls on the importation, manufacture, and supply of all vaping products, whether they contain nicotine or not. Here's a detailed look at the new regulatory framework and its implications.
Key Changes Effective 1 July 2024
Banning Non-Therapeutic Vapes The domestic manufacture, commercial possession, and sale of non-therapeutic vapes, including disposable vapes, are now banned. This applies regardless of whether the vapes contain nicotine or other controlled substances.
Pharmacy-Only Sales Therapeutic vapes that meet TGA requirements will continue to be available from pharmacies with a prescription. These vapes are intended for smoking cessation or managing nicotine dependence. Some health experts are concerned about the continued sale of vapes at pharmacies, such as Associate Professor Emily Stockings who states: “The new vaping reform bill passed in parliament today is, unfortunately, unlikely to stem this supply: adults will be able to buy vapes through pharmacies without a GP prescription, which essentially opens a door for continued supply to young people.”[1]
Advertising Restrictions A new advertising framework bans the promotion of vapes across all media platforms, including social media. Only specifically authorised advertisements are permitted.
Enforcement and Penalties New offences and civil penalties have been introduced for unlawful importation, domestic manufacture, supply, advertisement, and commercial possession of vapes.
Maximum penalties include up to 7 years in jail and fines up to $2.191 million for individuals and $21.91 million for corporations.
The TGA, in collaboration with the Australian Border Force and state and territory authorities, will enforce the new regulations. Enhanced enforcement powers include:
Seizure and Destruction of Unlawful Goods Goods can be seized and destroyed if found to be non-compliant.
Enhanced Information Gathering and Sharing Authorities have greater powers to gather and share information related to non-compliance.
Transitional Arrangements
Businesses possessing vapes lawfully imported or manufactured before 1 July 2024 must adhere to strict conditions for disposal or lawful distribution. Options include:
Export: Exporting to international markets where laws permit.
Supply to Pharmacies: Supplying remaining stock to pharmacies or authorised supply chain entities.
Surrender: Surrendering to TGA or waste disposal facilities for destruction.
Flavour Restrictions Therapeutic vapes are now limited to mint, menthol, and tobacco flavours. Transitional arrangements for other flavours have ended.
Requirements for Importers and Manufacturers
From 1 January 2024 and 1 March 2024, import controls were strengthened, requiring all vapes to meet TGA standards. The key product standards include:
Therapeutic Goods (Standard for Therapeutic Vaping Goods) (TGO 110) Order 2021
Therapeutic Goods (Medical Device Standard—Therapeutic Vaping Devices) Order 2023
These standards restrict flavours to mint, menthol, and tobacco, and set a maximum nicotine concentration limit of 100 mg/mL. Starting January 1, 2024, Australia has banned the importation of all disposable, single-use vapes. These products, which are often available in various flavours and appeal to younger demographics, will no longer enter the country. By March 1, 2024, this importation ban will extend to all other vaping products, including refillable vapes. However, importers with specific licenses and permits can still bring these products into Australia under strict regulations.
The goal of this phase is to reduce the availability of illegal and unregulated vapes, which have been easily accessible due to loopholes in the previous regulatory system. The ban targets the supply chain at its source, aiming to curtail the distribution of these products. Expected to come into effect later in 2024, the second phase will prohibit the domestic retail sale, manufacture, supply, advertising, and commercial possession of all vaping products unless they fall within a prescription framework. This change will require amendments to the Therapeutic Goods Act 1989.
This phase aims to eliminate the presence of vaping products in retail environments, making it more difficult for young people to access these items. By restricting the commercial availability of vapes, the government hopes to address the growing trend of youth vaping. In Australia, vaping rates across the population have been on the rise since 2018, with a significant jump between 2020 and March 2023.[2]
People aged between 18 and 24 recorded the highest increase in vaping rates in recent years, reaching nearly 20 per cent earlier this year. The 25- to 34-year-olds had the second highest prevalence of vaping in 2023, followed by those aged between 14 to 17. For the youngest cohort (14 to 17), less than one per cent vaped in 2018 but it climbed to nearly more than 14 per cent by March 2023. However, rates of vaping in people aged over 50 remained low, at less than three per cent.[3]
Changes Effective 1 October 2024
From 1 October 2024, certain therapeutic vapes containing nicotine (up to 20 mg/mL) or zero-nicotine substances will be available from pharmacies to patients aged 18 years or over without a prescription, provided a pharmacist deems it clinically appropriate.
Penalties for Non-Compliance
The new laws impose severe penalties for non-compliance:
Importation offenses:
For individuals: Up to 5 years imprisonment and/or 2,000 penalty units (approximately $666,000)
For corporations: Up to 10,000 penalty units (approximately $3.33 million)
Manufacturing offenses:
For individuals: Up to 5 years imprisonment and/or 2,000 penalty units
For corporations: Up to 10,000 penalty units
Supply offenses:
For individuals: Up to 5 years imprisonment and/or 2,000 penalty units
For corporations: Up to 10,000 penalty units
Possession offenses:
For individuals: Up to 2 years imprisonment and/or 500 penalty units (approximately $166,500)
For corporations: Up to 2,500 penalty units (approximately $832,500)
Commercial quantity offenses (for importation, manufacture, or supply):
For individuals: Up to 7 years imprisonment and/or 3,000 penalty units (approximately $999,000)
For corporations: Up to 15,000 penalty units (approximately $4.995 million)
Civil penalties:
For individuals: Up to 5,000 penalty units (approximately $1.665 million)
For corporations: Up to 50,000 penalty units (approximately $16.65 million)
Commercial Possession
Possessing commercial quantities of vapes (defined as 14 devices, 90 accessories, or 600 mL of liquid) is unlawful outside the legitimate pharmacy supply chain.
Personal Use
The changes do not penalise individuals possessing small quantities of vapes for personal use. Individuals, including people under 18 years, who have a vape on them for personal use will not be targeted under changes to the law. However, some states and territories may have additional restrictions on unprescribed nicotine vapes.
Previously, the regulatory landscape allowed the sale of nicotine-free vapes, while nicotine-containing vapes required a prescription. However, enforcement proved challenging due to the difficulty in distinguishing between nicotine and non-nicotine products without extensive testing. The new laws aim to streamline enforcement and close these gaps.
Industry and Public Response
The vaping industry and some public groups have expressed concerns about the new regulations, arguing that they could drive vapers back to smoking traditional cigarettes or push the market underground.
The government's approach reflects a growing trend globally, where many countries are implementing stricter controls on vaping products to balance the benefits of harm reduction for smokers with the need to protect public health.
As Australia navigates these regulatory changes, the focus remains on balancing harm reduction for smokers with the protection of the broader population. The effectiveness of these regulations will be closely monitored and will likely contribute to global discussions on managing vaping and its associated health implications.
Conclusion: What Happens When You Get Caught With a Vape?
The Act specifies that the possession of vaping products is only lawful if the products are approved by the Therapeutic Goods Administration (TGA) and obtained with a prescription from a registered medical practitioner. Unauthorised possession of vaping products, however, will not result in criminal sanctions for personal possession. The focus is on regulating the distribution and sale of these products rather than penalising individuals for possession.
At Carter Dickens Lawyers, we understand that navigating the complexities of these new vaping laws can be challenging. We are here to assist you in understanding and complying with the regulations, ensuring that your rights and interests are protected. Whether you are a business owner, healthcare provider, or consumer, our team is ready to provide expert legal guidance and support.
Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it is important to seek professional advice for your specific situation.
[1] Ivy Shih, New Vaping Reforms to end vape sales from general retailers: experts explain” University of Sydney (Online, 25 June 2024) < https://www.sydney.edu.au/news-opinion/news/2024/06/25/new-vaping-reforms-to-end-vape-sales-from-general-retailers-expe.html>.
[2] Stephanie Borys, ‘Over 3.5 million Australians aged 14 or over vape or smoke, new data has revealed’ ABC News (Online, 2 June 2023) < https://www.abc.net.au/news/2023-06-02/smoking-vaping-on-the-rise-in-young-australians/102425832>.
[3] Ibid.
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