All states and territories in Australia have adopted tobacco control policies that make the possession of nicotine e-cigarettes or vaporisers, a criminal offence. A vaper in Western Australia could face a fine of $45,000 while another could be imprisoned for up to two years in the Australian Capital Territory or Tasmania for possessing nicotine e-cigarettes.
Australia has a complex system of laws around vaping. Under Commonwealth law it is illegal to possess or use liquid nicotine in Australia for vaping without a prescription. The states and territories regulate nicotine vaping products as tobacco products and regulate issues such as sale, use in public places, age limits on sale, display and promotion of vaporisers.
As a result, the aggressive regulatory position of the federal government and the states against e-cigarettes denies Australians access to safer nicotine products as an additional strategy in reducing the smoking rate.
As a country, Australia is renowned the world over for its strict tobacco control laws. Australia has the highest cigarette prices in the world, due to aggressive, annual taxation increases. But, the overall implementation of the National Tobacco Strategy over the past several years seems not to be as successful as there are still nearly three million smokers and the decline in smoking rates has stalled since 2013.
Due to the creation of a legal environment that promotes a “quit or die” approach to tobacco control, the criminalisation of safer nicotine products like nicotine-containing e-cigarettes threatens public health and human rights.
First off, the Therapeutic Goods Administration (TGA) continues to irrationally classify nicotine as a Schedule 7 dangerous poison under the agency’s Poisons Standard, officially the Standard for the Uniform Scheduling of Medicines and Poisons (SUSMP). Per the Poisons Standard, placing nicotine under Schedule 7 is an insinuation that nicotine is as harmful arsenic or strychnine. In fact, although nicotine is addictive, it is a relatively benign chemical with very few significant adverse effects in humans. Almost all the harm to health from smoking is caused by the other 7,000 chemicals produced by burning tobacco.
The Poisons Standard provides for exceptions but only if the nicotine is utilised medicinally (nicotine replacement therapy) or in combustible tobacco cigarettes. Based on this standard, liquid nicotine found in e-juices or e-cigarettes is considered a dangerous poison. This remains the legal standard unless TGA reschedules nicotine so that it can be used as a consumer product, as is the case in most western high-income countries.
An appropriate risk-proportional regulatory framework would allow access for smokers wishing to quit while reducing potential risks, such as uptake by young people. No such actions have occurred to date, and liquid nicotine remains virtually outlawed under the TGA’s de facto ban.
From there, states and territories are empowered to create legislation and regulatory frameworks that reflect the national government’s position on e-cigarettes. As highlighted in the first paragraphs of this editorial, the ban is built on criminal and civil penalties that further marginalise broader harm-minimisation efforts. As a consequence of these complexities found in state and Commonwealth law, consumers who wish to access less harmful products containing nicotine are ultimately marginalised and stigmatised.
To complicate matters, this overcriminalisation also speaks to Australia’s history with drug harm reduction in general. But, for the case of tobacco harm reduction, governments at all levels in Australia are complicit in forcing human rights violations under existing international treaty frameworks, in my opinion. It is irrational and immoral to allow the sale of combustible tobacco products while effectively banning a far less harmful alternative.
The Framework Convention on Tobacco Control, developed on the backs of the United Nation’s Universal Declaration on Human Rights and the International Covenant on Economic Social and Cultural Rights, has room to improve.
If signatories, like Australia, can adopt a position that values a human’s right to health, then there is much to work with. The right to health, in this case, includes expanded access to less harmful nicotine products like electronic nicotine delivery systems and access to all information regarding the pros and cons of such products. This empowers consumers to make informed decisions. Further, repealing the existing criminal aspects of state and national law will destigmatise tobacco harm reduction.
Adopting legal structures that promote the sale, possession and use of safer alternatives to smoking can go a long way. A recent study published in the journal Epidemiology found that the legalization of the domestic sale of vaporised nicotine products in New Zealand produced a “net health gain and cost-savings.” The researchers concluded that while a series of uncertainties abound, a responsible regulatory framework can ensure the successful sale of vaporisers and e-cigarettes. Apply these findings, Australia could potentially benefit from a legal but regulated market that sells nicotine-containing e-cigarettes and e-juices.
These findings, among the ever-growing body of academic work, suggest a case of government overreach with impunity. State and national governments all over the world have to develop policies that are informed by the science and not built on ideology and emotion.
Andrew Laming MP, a Coalition member of the seemingly pointless federal inquiry into nicotine vaping, said it best: “Life is short and shorter for smokers. Just legalise vaping.”
Michael McGrady is an international journalist and researcher. His most recent work focuses on the intersections of tobacco harm reduction and economics on a global scale.
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