Vic to ban encouraging smokers to switch to e-cigs
Encouraging smokers to switch to e-cigarettes will be banned under laws being considered by the Victorian Government.
E-cigarettes do not contain tobacco and do not produce smoke. They provide nicotine for inhalation in a vapour generated by heating a solution containing water, nicotine, propylene glycol, vegetable glycerine and typically also some flavouring.
The Royal College of Physicians estimate that they are at least 95% safer than smoking tobacco and can help smokers quit. They are calling for promotion of the use of e-cigarettes, NRT and other non-tobacco nicotine products as widely as possible as a substitute for smoking.
How can Victoria possibly make this illegal?
The first step is by changing the definition of ‘smoke’ to include use of an e-cigarette.
smoke means -
(a) smoke, hold or otherwise have control
over, an ignited tobacco product; or
(b) use an e-cigarette to generate or release
an aerosol or vapour;Tobacco Amendment Bill 2016 Part 4 Clause 9
As you might imagine, promotion of smoking is illegal in Victoria. Redefining smoking to include use of an e-cig would make it illegal to encourage smokers to switch to a safer product.
TOBACCO ACT 1987 - SECT 3B
Tobacco or e-cigarette advertisements(1) Subject to this section, for the purposes of this Act, a tobacco or e-cigarette advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote—
(a) smoking; or
(b) the purchase or use of a tobacco product or e-cigarette product or a range of tobacco products or range of e-cigarette products; or …
TOBACCO ACT 1987 - SECT 3B (amendments added)
Surely this is unintended?
It’s reasonable to ask whether a ban on encouraging smokers to switch to a safer alternative was the Minister’s intention. To their credit, the Scrutiny of Acts and Regulations Committee did just that:
The Committee notes that clause 9, amending existing s.6, makes it an offence for anyone, for any pecuniary benefit, to publicly display or distribute a written, visual or audible message or image that gives publicity to, or otherwise promotes the use or purchase of e-cigarettes, or any words or designs closely associated with an e-cigarette product.
The Committee observes that clause 9 is not limited to messages that ‘mimic tobacco advertising and glamorise e-cigarette use’ but also prohibits messages (when displayed or distributed for a pecuniary benefit) that merely provide information about e-cigarettes, such as their lawfulness, availability, nature, ingredients, prevalence and effects.
The Minister’s response confirmed the ban on encouraging smokers to switch to a safer product was intended:
Question to the Minister for Health: does clause 9 permit an advertisement whose sole or principal purpose is to encourage users of tobacco products to switch to e-cigarettes?
It is intended that clause 9 of the Tobacco Amendment Bill 2016 (the bill) would prohibit the display of an advertisement whose sole or principal purpose is to encourage the users of tobacco products to switch to e-cigarettes.
Such an advertisement would be considered an e-cigarette advertisement within the meaning of the amended legislation. Clause 9 of the bill will amend section 3B of the Tobacco Act 1987 (the principal act) to insert a definition for the term e-cigarette advertisement. An advertisement whose sole or principal purpose is to encourage tobacco product users to switch to the use of e-cigarettes would not fall within the exemption provided for in the amended section 3B(7) of the principal act, as such an advertisement would encourage the use of e-cigarette products.
The rationale for not extending the exemption to such advertisements is in line with the government’s precautionary approach to mitigating the potential risks associated with the use of e-cigarette products. Evidence to date about the harms associated with e-cigarette use is limited and the Therapeutic Goods Administration has yet to approve an e-cigarette product as a smoking cessation aid.
It would be premature to allow advertising that encourages smokers to switch to e-cigarettes in these circumstances. Should the Therapeutic Goods Administration approve an e-cigarette product as a smoking cessation aid in the future, clause of the bill provides for regulations to be made to exclude that particular product from the definition of e-cigarette. An e-cigarette product which has been excluded by regulations would not be subject to the ban on advertising of e-cigarette products and could be lawfully advertised in the same way as other smoking cessation aids or quitting medications.
Advertising that discourages smokers from switching permitted
It appears the law permits advertisements whose sole or principal purpose is to discourage users of tobacco products from switching to e-cigarettes.
(7) If
(a) apart from this subsection, something ( the advertisement ) would, technically, be a tobacco advertisement or e-cigarette advertisement; and
(b) it is clear from the advertisement that its sole or principal purpose is to discourage smoking or the use of tobacco products or e-cigarette products
then, despite subsection (1), the advertisement is not a tobacco advertisement or e-cigarette advertisement for the purposes of this Act.
TOBACCO ACT 1987 - SECT 3B (amendments added)
While this opens the question of whether Tobacco companies would be free to join the fight against ecigs it’s irrelevant who pays the bill when the outcome is the same.
Contact your State MP
This aspect of the Bill will keep smokers from switching to a safer alternative.
Laws take years to remove. We need to call on our elected MPs to amend the Bill before it is passed in August 2016.
Please take the time to contact your representative in the Legislative Council.