Mon Mar 27

TGA review strengthens case for much tighter vape restrictions at the border

Written by Becky Freeman, Associate Professor, School of Public Health, University of Sydney

On Friday, the Therapeutic Goods Administration (TGA) updated ^[1] its review of proposed reforms to the regulation of nicotine vaping products. It reported the federal government is now “actively considering” the TGA’s advice.

The TGA’s advice has not been released at this time, but a top-level summary of the review consultation submissions was. It restated the review’s scope, focused on changes to border controls for nicotine vaping products, minimum quality and safety standards – including the idea of categorising nicotine vaping products as therapeutic goods.

The update’s emphasis on enforcement and safety supports the goal to ensure nicotine vaping products are available only to people using them to try to quit smoking.

Nothing is off the table

Three weeks ago, all the Australian health ministers agreed ^[2] to set up a working group to consider options to address the availability of all e-cigarettes, including nicotine and non-nicotine containing devices.

Since then, Federal Health Minister Mark Butler has been increasingly vocal ^[3] about improving border controls to enforce Australian laws that say nicotine vapes should only be available via prescription.

Butler says “nothing is off the table ^[4]” – except allowing the sale of nicotine e-cigarettes without a doctor’s prescription in retailers such as convenience stores. Currently, illicit sales of nicotine vaping products are occurring on a growing scale, with hundreds of retail outlets selling nicotine e-cigarettes in blatant breach of public health laws.

What do the consultation responses tell us?

The TGA published almost 4,000 ^[6] submissions.

They came primarily from two viewpoints. On the one hand, the majority of public health stakeholders (including non-government organisations and state and territory government health and education agencies) who called for stronger border controls. On the other, those aligned with commercial interests calling for nicotine e-cigarettes to be sold legally over the counter.

The TGA noted a large number of submissions ^[7] from “the general public” appeared to be “campaign responses” calling for vaporiser nicotine to be removed from the poisons standard so it can be sold by any retailer.

This is a well-worn tactic used by the tobacco industry and its retailer allies – orchestrate responses ^[8] to public consultations purporting to be the voice of the community. In reality, these represent the interests of commercial entities. And anyway, repealing the scheduling of vaporiser nicotine as a prescription-only substance is not within the scope ^[9] of the review.

person breathes out vapour from e-cigarette

Evidence shows few people are successfully using vapes to quit tobacco. Shutterstock ^[10]

Unresolved issues

Although state and territory government health and education agencies called unanimously for tighter border controls, there were varied views on how this could be achieved.

Some proposed the introduction of an import permit. Others suggested ^[12] amending customs regulations administered by the Department of Home Affairs, which would require Australian Border Force to seize nicotine vaping products imported without medical authority. Many submissions proposed extending this to non-nicotine vaping products as well.

Independent health groups ^[13] – particularly the Cancer Council, the National Heart Foundation and the Australian Council on Smoking and Health, who were previously involved in landmark policy achievements such as plain packaging of tobacco – all supported customs seizures.

Based on all the evidence, including the harms of vaping ^[14], patterns of use ^[15] and current policies, this option would turn the tap off at the border. State and territory governments must also end illegal retail sales in their respective jurisdictions. This would end current exemptions for non-nicotine vaping product sales, and ensure all vaping products, regardless of claimed nicotine content, are only accessed ^[16] through the prescription pathway.

The proliferation of so-called non-nicotine vaping products, many of which contain nicotine when tested ^[17], is disrupting enforcement efforts to make nicotine vaping products prescription-only.

What happens next?

It’s time for greater enforcement and regulatory reform action – not just deferral to “working groups”, “consultations” and “inquiries”. Queensland’s parliament just moved to conduct another inquiry ^[19] of e-cigarettes, at least the fourth in Australia since 2017.

Soon we’ll hear what the government plans to prioritise. If the federal response to the TGA review turns out to be an import permit instead of prohibiting imports, then it must be backed with effective enforcement. Retailers are already flouting federal laws (both the poisons standard and the Therapeutic Goods Order) and state/territory public health acts by importing and selling nicotine vaping products. Without enforcement, an import permit will be just another policy instrument to be ignored.

Nothing turns a profit like commercialised addiction. Vaping manufacturers and retailers know this and appear determined to addict as many users as possible through increasing lawbreaking, while Australian governments “consider their options”. Not since the debut of mass-marketing of cigarettes ^[20] in the 19th century has a whole population been at such risk of nicotine addiction and health harms on an industrial scale.

The evidence is clear. E-cigarettes are harmful to health ^[21], non-smoking users have a three-fold risk of smoking uptake ^[22], the largest user groups are young adults aged under 25 ^[23], and teenagers and few people ^[24] are successfully using e-cigarettes to quit smoking.

Australian governments are clear about their shared commitment to restricting nicotine vaping products to a prescription pathway. Now they need to commit to action – by seizing all imported vaping products not destined for a pharmacy, and extending the current restrictions and enforcement to all vaping products.