The man whose small business selling e-cigarettes sparked a case which lead to the product being banned from sale in Western Australia has failed in his bid to overturn the landmark decision.
The prosecution of Vince van Heerden by the WA Health Department made WA the first jurisdiction in the world to outlaw the sale of e-cigarettes.
After a judge found it was illegal to sell e-cigarettes containing no nicotine, because they merely resemble a cigarette or cigar, the court imposed a fine of $1750.
An appeal against the decision was resolved today, with the Court of Appeal finding there were no errors of law in the original judgment.
Justice Robert Mazza commented it was not the court’s job to decide whether e-cigarettes were being sold for the purpose of helping smokers quit nicotine products.
“For the sake of clarity, this court should not be understood as having considered whether e-cigarettes are therapeutic and ought be available for sale. These are matters for Parliament,” he wrote.
Outside court, Mr van Heerden said he was shocked by the decision – which he claimed could send him bankrupt, and lead to other sellers facing legal action.
“I don’t think that selling them is a good idea from a legal point of view, from a moral point of view they’re heroes making a real difference to real people’s lives,” van Heerden said.
A test case against the Duncraig company selling e-cigarettes online, under the banner Heavenly Vapours, had brought about the landmark ruling.
The battery-powered devices do not burn tobacco but turn nicotine or fruit flavours into vapour which is inhaled and exhaled.
A magistrate originally ruled there was not enough evidence to prove the two types of e-cigarettes sold looked like real cigarettes.
But after an appeal from WA health bosses, the Supreme Court ruled selling e-cigarettes in WA should result in a trader being prosecuted.
The ruling provoked vociferous debate around the world, with proponents claiming e-cigarettes were an effective smoking cessation aid, while health campaigners fear the devices will encourage young people to smoke the real thing.
Australian Council on Smoking and Health president Mike Daube said the judgment was an important step in the continuing battle against smoking.
The Cancer Council said they welcomed today’s decision.
“There is growing concern about the possible harms of e-cigarette use, as well as the ways in which they are promoted. The evidence from overseas around the safety of e-cigarettes and their efficacy as a smoking cessation aid are not encouraging,” a spokeswoman said.
“The best thing smokers can do for their health is to quit, and there are good supports around.”