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 Medicines and Poisons Act 2014.
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.
E-Liquid/E-Juice/Vape Juice and nicotine
The Western Australian Supreme Court decision does not encompass the sale of E-Liquids/E-Juice/Vape Juice.The manufacture and/or sale of E-Liquids/E-Juice/Vape Juice products currently does not require a tobacco licence. If the liquid product does not contain nicotine and complies with Customs, drugs and/or poisons legislation with regard to its composition, the sale of such liquid products would not breach the Tobacco Control Act and Regulations 2006.However, if any E-Liquids/E-Juice/Vape Juice products contain nicotine, these would be classified as a Schedule 7 poison and be illegal for sale without the necessary licence and/or permits in accordance with the Medicines and Poisons Act 2014. Schedule 7 poisons must meet labelling and packaging standards.The Australian Therapeutic Goods Administration (TGA) has deemed certain products that do contain nicotine as exempt under the above legislation. These include products that are prepared and labelled for human therapeutic use, such as nicotine replacement gum, lozenges, patches and inhalers.To date, e-cigarettes, E-Liquid, E-Juice and Vape Juice have not been assessed or approved by the 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.