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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
VAPORISED NICOTINE PRODUCTS BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of Senators Leyonhjelm and Roberts)
VAPORISED NICOTINE PRODUCTS BILL 2017
OUTLINE
The Vaporised Nicotine Products Bill 2017 has the effect of excluding e-cigarettes from
regulation by the Therapeutic Goods Administration, consistent with the existing exclusion of
cigarettes from such regulation. This will remove a Commonwealth barrier to the sale of
e-cigarettes in Australia.
The Bill also confirms that the regulation of smoking at airports does not affect vaping (ie use
of e-cigarettes) and that the ban on the advertising of smoking does not apply to the
advertising of vaping.
Restricting e-cigarettes more than cigarettes is perverse. There is evidence to suggest that
e-cigarettes are less harmful than cigarettes, and no evidence that e-cigarettes are more
harmful than cigarettes.
There is evidence to suggest the availability of e-cigarettes assists people to quit smoking
more than it leads people to take up smoking, and no evidence to suggest that the availability
of e-cigarettes leads people to take up smoking more than it assists people to quit smoking.
The sale of e-cigarettes is legal in a growing number of developed countries and is being
considered in others.
It is legal for Australians to import e-cigarettes for personal consumption, which makes the
current ban on the sale of e-cigarettes in Australia equivalent to reverse protectionism.
Australian businesses are prevented from making sales that foreign businesses are allowed to
make.
Adults should be allowed to make their own decisions regarding the use of e-cigarettes, even
if those decisions involve the risk of personal harm and are considered to be mistakes.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause provides for the Act, when enacted, to be cited as the Vaporised Nicotine
Products Act 2017.
Clause 2: Commencement
2. This clause provides that Schedule 1 of the Bill commences on the day after the end
of the period of 12 months beginning on the day this Act receives the Royal Assent. This
delay in commencement provides time for the Secretary to amend the current Poisons
Standard accordingly and for States and Territories to legislate for the sale of e-cigarettes.
The remainder of the Bill commences on the day this Act receives the Royal Assent.
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Clause 3 - Schedules
4. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Amendments
Airports Act 1996
Item 1 - Section 174
6. This item re-numbers section 174 -- which allows for regulations dealing with
smoking at a specified airport -- as subsection 174(1). This re-numbering facilitates item 2.
Item 2 - At the end of section 174
7. This item adds subsection 174(2) to clarify that the reference to smoking in subsection
174(1) means smoking a tobacco product using a combustion process. This confirms that the
use of electronic nicotine delivery systems and the use of tobacco prepared and packed for
heating are not to be mistaken for smoking.
Therapeutic Goods Act 1989
Item 3 - After section 52E
8. This item adds section 52EAAA. New subsection 52EAAA(1) requires the Secretary
to ensure that the Poisons Standard applies in relation to certain nicotine in electronic nicotine
delivery systems and to nicotine in tobacco prepared and packed for heating in the same way
as it applies to nicotine in tobacco prepared and packed for smoking.
9. The Poisons Standard that commenced on 1 June 2017 does not regulate nicotine in
tobacco prepared and packed for smoking. This is a long-standing exception that gives rise to
the availability for sale of cigarettes. Were this long-standing exception to continue, new
subsection 52EAAA(1) would require that the Poisons Standard not regulate certain nicotine
in electronic nicotine delivery systems and nicotine in tobacco prepared and packed for
heating.
10. The nicotine in electronic nicotine delivery systems covered by this provision is
nicotine in electronic nicotine delivery systems in concentrations no greater than 20 mg/mL.
The 20 mg/mL reference corresponds with a reference in Directive 2014/40/EU of the
European Parliament and Council, which allows nicotine-containing liquids where the
nicotine concentration does not exceed 20mg/ML.
11. New subsection 52EAAA(2) defines an electronic nicotine delivery system as a
product that can be used for the production and consumption of nicotine-containing vapour,
or a component of such a product (including a liquid, cartridge or tank).
12. Section 52E of the Therapeutic Goods Act 1989 requires, where relevant, the
Secretary, when amending the Poisons Standard, to take various matters into account. New
subsection 52EAAA(3) requires that electronic nicotine delivery systems and tobacco
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prepared and packed for heating be treated in the way required by subsection 52EAAA(1)
despite section 52E.
Tobacco Advertising Prohibition Act 1992
Item 4 - Section 8 (at the end of the definition of smoking)
13. This item changes the definition of smoking in the Tobacco Advertising Prohibition
Act 1992. The definition is changed from 'smoking a tobacco product' to 'smoking a tobacco
product using a combustion process'. This confirms that the use of electronic nicotine
delivery systems and the use of tobacco prepared and packed for heating are not to be
mistaken for smoking.
14. The Competition and Consumer Act 2010 refers to 'smoking or other use of tobacco
products' in provisions relating to claims for death or personal injury under the Australian
Consumer Law. The definition of smoking used for these provisions is the definition,
updated by this item, in the Tobacco Advertising Prohibition Act 1992.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Vaporised Nicotine Products Bill 2017
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill has the effect of excluding e-cigarettes from regulation by the Therapeutic Goods
Administration, consistent with the current exclusion of cigarettes from regulation by the
Therapeutic Goods Administration. This will remove a Commonwealth barrier to the sale of
e-cigarettes in Australia.
The Bill also confirms that the regulation of smoking at airports does not affect vaping (ie use
of e-cigarettes) and that the ban on the advertising of smoking does not affect the advertising
of vaping.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms. The Bill promotes the
right to do what you want as long as it does not harm anyone else, but this right is not
recognised in the international instruments referred to in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Conclusion
This Bill is compatible with human rights as it does not raise any issues with the human
rights recognised in the international instruments referred to in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Senators Leyonhjelm and Roberts
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