What are electronic cigarettes?
Electronic cigarettes (e-cigarettes) are battery-powered devices which heat a cartridge containing nicotine, flavouring and other chemicals into a mist which is inhaled through a mouthpiece, and then exhaled by the user as a visible vapour.
They have typically mimicked traditional tobacco cigarettes, cigars or pipes in appearance, but are increasingly available in other styles.
Cartridges which do not contain nicotine are also available.
In Western Australia, provisions that relate to e-cigarettes are within the Tobacco Products Control Act 2006 and the Poisons Act 1964.
Products that resemble tobacco products
In accordance with the Tobacco Products Control Act 2006, a person must not sell any food, toy or other product that is not a tobacco product but is designed to resemble a tobacco product or package.
Manufacturers of e-cigarettes are increasingly making products which diverge from the usual appearance of cigarettes.
However, 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 application to the Supreme Court to appeal the decision. The matter was heard by the Court of Appeal of the Supreme Court of Western Australia on 23 November 2015 and the appeal was unanimously dismissed in a decision handed down on 10 March 2016.
The Court decision highlights that products that resemble tobacco products, regardless of whether they contain nicotine or not, cannot be sold in WA and it is an offence under the Tobacco Products Control Act to sell these products.
Electronic cigarettes, nicotine and quitting smoking
The Poisons Act 1964 provides that nicotine in liquid form, as used in e-cigarettes, is classified as a Schedule 7 poison. Schedule 7 poisons must meet labelling and packaging standards. They may only be sold by a retailer with a licence, and may only be purchased by persons with a valid permit.
Products that are prepared and labelled for human therapeutic use, such as nicotine replacement gum, lozenges, patches and inhalers are exempt from these requirements.
To date, e-cigarettes have not been assessed or approved by the Australian Therapeutic Goods Administration (TGA) as a safe and effective aid to quitting smoking.
Electronic cigarettes in public areas
E-cigarettes have recently been the cause of disputes in some public places due to the confusion they may cause if used in areas where smoking is not allowed.
Owners/managers may choose to implement a policy applying to their premises which prohibits the use of e-cigarettes wherever smoking is prohibited.
Possible wording for such a policy:
- Electronic cigarettes (e-cigarettes) and other personal vaporisers for delivery of nicotine or other substances are not permitted to be used in any area where smoking is restricted.