Intouch Public Health

Malcolm Baalman, PHAA

This week Parliament finally concluded its approval of the “Vaping Reforms” package of amendments to the Therapeutic Goods Act.

The Bill is the final component of several months of moves to settle Australia’s ‘world-leading’ model of control of e-cigarette supply into our community.

Many elements of the model – the general prohibition of nicotine e-cigarettes, advertising controls, retail sale controls, and regulations for product content for ‘therapeutic’ e-cigarettes – were already in place.

This final Bill completes the package by greatly strengthening the laws on enforcement of the regime, including offences and large penalties for importation, manufacture in Australia, retail sale and possession of commercial quantities of products.

The most obvious visible impact of these changes is that the ‘retail model’ where tobacconist-style vape stores sell products to anyone (despite many aspects of such sale of nicotine products being in fact already illegal) is now more clearly, comprehensively and effectively prohibited.

This form of sale will cease from next Tuesday. Retailers have had many months of notice.

It will be replaced with a model where e-cigarette products, tightly regulated as to content and packaging, will only be available through pharmacies, as a ‘therapeutic good’ intended for the sole purpose of quitting smoking.

The politics surrounding the passage of the Bill has, however, forced the Government to compromise on an important element of the regime.

Instead of pharmacy supply of cessation-purpose e-cigarettes requiring a GP’s prescription, together with the general advice and support of a GP, products will instead be purchasable by any adult, with only the non-obligatory intention that pharmacists will query buyers as to whether they are genuine smokers seeking to quit smoking.

The Government’s proposal certainly did not have plain sailing through Parliament. There is an old saying that people shouldn’t watch how legislation is made, and that’s certainly true of this case.

A very abbreviated summary of what happened is:

• The Government, acting in collaboration with the eight state and territory governments, devised the scheme over the past 18 months, put in place various import and product controls through other means over the past year, and then brought the enforcement Bill to Parliament in March.
• Since March, a key Senate Committee has held an inquiry into the Bill, which received hundreds of written contributions, and hosted several public hearings.
• The Opposition Coalition parties did not support the Bill, but they were split however into two camps: the National Party stridently opposed the Bill and still seeks to continue the ‘retail model’ which presently exists. Meanwhile the Liberal Party remained undecided and silent throughout the debate, finally publicly joining the National Party position only in the past few days.
• The Greens, with a key bloc of numbers in the Senate, were divided. They debated the Bill extensively internally, and just days before the vote was due in the Senate they decided to oppose the GP-prescription regime, instead insisting on general availability of e-cigarettes through pharmacies to any adult. The Greens also felt that the original Bill risked criminalising acts of e-cigarette use and possession, which was a very debated point, but it led the party to insist on amendments relating to the offences of use and possession by individual consumers.
• Several of the crossbench independents disagreed with the Greens demands, noting that the decision to make e-cigarettes more easily purchased, and without any pharmacy record-keeping, will allow buyers to make multiple purchases and immediately engage in on selling.

The resulting compromise model is certainly not the best regime that public health advice would have wanted.

But the big picture – the comprehensive prohibition of a highly unreliable and illegally-operating retail market that has existed for the past decade – should lock in the overall policy as primarily health-focussed for many years to come.

Arguments are already underway about details. The pharmacist sector is arguing that they do not want to engage in the sale of products without the involvement of GP’s, because that involvement at least gave pharmacists the comfort that they were engaged in health-promoting activity.

Without the GP’s being involved, pharmacists are rightly worried about what they are really being asked to do. It is probable that many pharmacies will simply not stock e-cigarette products under the model that has now passed Parliament. Many will also be concerned by heightened risk of burglary of their premises, with consequential issues for insurance and employee safety.

Concerns continue to be raised about the ability of purchasers to buy from multiple local pharmacies without any record-keeping – a policy demanded by the Greens as part of their package of changes – potentially facilitating re-supply of large amounts of products, including to children. That reality may need to be addressed by the Government very soon.

An important addition to the Bill, also added by the Greens, is that a review of the impact of the legislation will be conducted in 2027.

This will require data capture and monitoring of the key outcomes, primarily uptake of vaping by children.  The report from this review will be presented to the Parliament, and may be a trigger point for further improvements.

Overall, what has happened over the past year or so has given Australia a much more health-focussed policy model, but one with remaining policy flaws, some of them self-induced by the political process.

It’s hard to imagine that the ongoing debate will not see more improvements sought, including by the various elements of the health sector. GPs, pharmacists, and many others are unsatisfied with the outcome.

The public health community will continue to examine the outcomes of the regime and seek further improvements in both driving down demand for all nicotine products, as well as supporting those who have become addicted to nicotine, through whatever product.

Malcolm Baalman is Senior Policy and Advocacy Adviser at the Public Health Association of Australia.