E-Cigarettes R Us Australia

NSW tobacco laws could be amended to specifically outlaw electronic cigarettes after a landmark legal test case in WA led to the criminal prosecution of an online stockist.

”E-cigarettes”, or vapourisers, are battery-powered devices that simulate the effects of smoking by heating a nicotine liquid into vapour, which the user then inhales and exhales.

It has always been illegal to sell e-cigarette liquids that contain nicotine under Australian law but in a big development last week, the Supreme Court of Western Australia effectively banned e-cigarettes outright in the state, prosecuting a company, called HeavenlyVapours, which had been selling the dispensers and nicotine-free ”e-juice” through a website.

The ruling means that anyone over 18 in WA can legally smoke a cigarette containing multiple chemicals and carcinogens, but cannot buy the electronic version which many claim has assisted thousands of smokers to quit worldwide.

Last week, the owner of HeavenlyVapours, Vince van Heerden, said of the ”case law precedent” in an online forum: ”One can only imagine that the other states may now try to follow suit.”

Asked about the case, the NSW Ministry of Health confirmed it was ”continuing to monitor” the case and was waiting to see ”whether the decision may be appealed.”

In the meantime, it confirmed more than a dozen Sydney retailers were facing legal action after being caught selling illegal nicotine-laced e-liquids, late last year.

”Prosecutions are being considered for breaches of the Poisons and Therapeutic Goods Regulation 2008 and evidence has been collected,” a Health Department spokesman confirmed.

Vapourisers range from imitation cigarettes that cost as little as $20, to the Romanian built Wizard Evolved DA20 which sells for $1000.

In 2011, HeavenlyVapours’ premises were raided by the Western Australian Health Department over alleged breaches to section 106a of the Tobacco Products Control Act which prohibits the sale of anything such as food or a toy that mirrors a tobacco product. But in September last year, HeavenlyVapours was acquitted by a magistrate’s court which ruled there was insufficient evidence that the e-cigarettes in question looked anything like traditional cigarettes or cigars, pointing out the devices could just as easily resemble a ”fountain pen”.

But several weeks after the case was dismissed, the WA Health Department lodged an appeal which proved successful last week with the judge determining that any e-cigarette product that involves ”a hand to mouth action” and results in the ”expulsion of vapour” does in fact resemble a tobacco product.

Mr Van Heerden said his legal costs to date were almost $45,000 ”for something no one has ever been charged or prosecuted for before”.

But he has vowed to fight on. ”Common sense and dozens of studies demonstrate that e-juice consumed through e-juice/personal vapourisers do not contain the many thousands of deadly chemicals traditional tobacco cigarettes do,” he said online. ”We deserve the right to choose an alternative.”

Philip Morris has snapped up one of Britain’s fastest-growing electronic cigarette-makers, Nicocigs, as it warned profits from its traditional business will be lower than expected.

Nicocigs, was founded in 2008 and is based in Birmingham, is best known for its Nicolites brand.

Philip Morris, the owner of Marlboro, said the acquisition will give it “immediate access to, and a significant presence in, the growing e-vapour category in the UK market, as well as a strong retail presence”.

Nicocigs has about 27 per cent of the UK’s e-cigarette market, which has an estimated total retail value of $350 million (£206 million). The start-up employs 40 sales staff and distributes to 20,000 stores in Britain.

The purchase price for Nicocigs was undisclosed. The company reveals few financial details but it had amassed shareholder funds of £7.7 million by August 2013, according to Companies House. Nishil Nathwani, 27, is the leading shareholder.

The deal comes as Philip Morris, the world’s biggest tobacco firm, cut its profits forecast by about 4 per cent to between $4.87 and $4.97 per share on poor sales and price-cutting in Australia.

The stock fell nearly 2 per cent in trading on the German stock market. Chief executive André Calantzopoulos warned that the firm faces “significant currency headwinds … and known challenges in Asia”.

Calantzopoulos said the advent of e-cigarettes and other “reduced-risk” products means the tobacco industry is at “the early stage of a transformational process”.

Philip Morris reckons it could make $700 million of profit from “reduced-risk” products if it can reach a target of selling 30 billion units. But it also said it will run up $495 million in redundancy costs in September as it stops production in the Netherlands.

In Western Australia it is legal to sell cigarettes filled with tar and other nasties that contribute to millions of deaths each year, yet electronic cigarettes – even those designed to be used with substances made of oils and organic compounds – are now outlawed.

Isn’t this effectively sending the message that it is OK to smoke but not to pretend to smoke?

The Health Department pursued a case against a man who set up a website to sell e-cigarettes online to make some extra cash – a case that earlier this year saw the man convicted and fined for breaching the Tobacco Products Control Act 2006 (WA).

E-cigarettes cannot legally be marketed to be used in aiding quitting smoking.

It also sent a message that selling e-cigarettes is illegal in WA.

Vincent van Heerend’s conviction surrounded a section of the Act that outlaws selling products designed to resemble cigarettes.

I understand the point of the section of law, I don’t want to see my nieces sucking on toy cigarettes, imitating adult smokers but where is the common sense?

I’d have a different opinion on e-cigarettes plastered with images of tween heartthrobs One Direction on them, or musical e-ciggies that lit up and played Katy Perry’s Firework – but a product that has the possibility to help people quit an unhealthy habit and one that does not appear to be worse than the one it is imitating; at least consider regulating than banning it.

The judge in the test case specifically referred to the vapour from the e-cigarettes resembling smoke from a cigarette.

If this is the issue, I really hope the government pursues some sort of legal case or implements some sort of regulation in regard to another big offender in that same stream.

A couple of mornings earlier in the week, when the temperature got down to about 2 degrees, I walked from the car park to the office exhaling what looked like smoke – at the rate of a chain smoker, mind you – no one should have to deal with that.

My frost-breath is not likely to get me in any trouble any time soon; neither is using e-cigarettes in your own home, as their use is not illegal.

Comprehensive studies into the impact of e-cigarettes on human health have not been done.

While the jury is still out on what health effects e-cigarettes without nicotine in could have, one would assume that vegetable glycerin and propylene glycol could be a slightly healthier option than tobacco and tar.

E-cigarettes cannot legally be marketed to be used in aiding quitting smoking as they have not been assessed by the Therapeutic Goods Authority but anecdotal evidence suggests there could be something there.

I’ve come across a number of people who swear by these things as a way to reduce their nicotine intake or get off smoking completely.

I’ve been told that smokers still physically go through a similar routine that they do when they have a real cigarette, even though they might be taking in less or no nicotine.

The increasing prevalence of e-cigarettes in the community could also make smoking bans a complex issue.

A smoking ban in Perth’s Hay and Murray street malls came in to effect last year and the City of Perth confirmed local law prohibits smoking of any tobacco product in these areas.

A spokeswoman said “e-cigarettes are not a tobacco product and therefore the law does not prohibit their use” but the thing is, some of them are used to smoke tobacco.

However according to the Health Department, the use of e-cigarettes, whether they have nicotine in or not, must comply with laws on smoking in public places.

And even if the city was to allow the use of e-cigarettes without nicotine to be used within the malls, how are those who hand out fines meant to determine whether an e-cigarette has nicotine in it or not? I don’t think breathing in some of the smoke from them would be the healthiest of options.

Oddly enough, when chatting to tobacco store staff I was told that patients from Royal Perth Hospital were actually encouraged to buy e-cigarettes.

A shop worker at a different outlet backed this up, saying some customers had been to RPH or were still patients there and had been advised by staff to get an e-cigarette.

The hospital patients said they used them to aid in quitting their smoking habit altogether, or to use the nicotine-free version so they can use it on the hospital grounds where smoking is banned.

A spokeswoman for RPH said while they could not verify “third party statements or advice provided to patients or visitors, e-cigarettes and other personal vaporisers for delivery of nicotine or other substances are not permitted” at the hospital.

However, if e-cigarettes are useful in helping people quit smoking and if smokers spend their cash on e-cigarettes and not so much on the traditional product, how would the federal government cope without its own addiction to the revenue that Big Tobacco generates?

France is preparing to place e-cigarettes on the same legal footing as tobacco smoking with draft legislation that aims to ban their use in public places.

The health minister, Marisol Touraine, intends to table a bill on 17 June bringing in anti-smoking measures, Le Figaro reported on Friday.

Not only would France become the first large European country to introduce the ban affecting e-cigarettes, but it would also follow Australia’s example by ordering plain packaging for tobacco products that display graphic pictures of diseases caused by smoking.

The proposed bill is more prohibitive than anti-smoking measures adopted by the European parliament in February. It comes at a time when e-cigarette stores have been springing up across France, which now has almost 1 million users.

The president of the French Tobacconists’ Confederation, Pascal Montredon, told the Guardian that Touraine was being unrealistic by modelling her reforms on “Anglo-Saxon” countries such as Australia and Britain where the cigarette distribution network is completely different from France.

“Tobacconists are fed up with being stigmatised at a time when instead the government should be doing something about the unemployment rate,” he said. The confederation is pressing for e-cigarettes to be sold solely in tobacconist stores, but the proposed legislation fails to address this, he said.

He also said the government needed to bring in measures to curb the parallel cigarette market which accounts for 25% of sales in France.

Other critics said that studies had shown that smokers are more influenced by family and friends in taking up smoking and that very few are influenced by packaging.

Touraine’s office did not confirm the report in Le Figaro, which was published on the eve of “world no tobacco day”. But the ministry said that a “national smoking reduction plan” was under consideration.

A total 73,000 French smokers die every year from tobacco-related cancers.

Western Australia has led the country in banning e-cigarettes, even those which do not contain nicotine.

The World Health Organisation (WHO) will hold a tobacco control meeting in Moscow in October to debate the merits of electronic cigarettes, with some doctors arguing in favour of the product.

While many users claim the e-cigarettes, which allow them to inhale a vapour without the smoke, help them to cut down their tobacco habit, Australian health experts are questioning their value.

Last month the Supreme Court of Western Australia ruled that e-cigarettes that do not contain nicotine still breached the tobacco control act which prohibits any “food, toy or other product” looking like a cigarette or cigar.

Talkback caller to 720 ABC Perth, Mohammed, said he felt that an e-cigarette had helped him with a 27-year chain-smoking habit.

“About three months ago I switched to the e-cigarette and I haven’t touched a normal cigarette since,” he said.

“My breathing has improved, my sleeping has improved. There is no smell on my clothes or car.

“I’m looking forward to giving up. I have tried all those other things like patches and chewing gum, but they never helped. This is the only thing that kept me off cigarettes.”

E-cigarettes not approved as quitting aids

Dr Tarun Weeramanthri, the executive director of public health at the WA Health Department, said that while further research is welcome, there is no evidence to date the e-cigarettes work any better that other nicotine replacements.

“E-cigarettes have been around since the 1960s but despite the claims for them, they are not registered in Australia as a quitting aid,” he said.

“Some people will say the devices helped them quit, but when we look at the evidence, many more people just keep smoking e-cigarettes and normal cigarettes.

“The long term trials haven’t been that conclusive about the effectiveness of e-cigarettes in quitting.”

What has changed, Dr Weeramanthri, is that e-cigarettes have become a bigger business, particularly in Europe, where seven million people use them.

“What has happened in the last couple of years is the big tobacco companies have been buying up e-cigarette companies.

If you look at Europe, where millions of people do use e-cigarettes, they are promoted just like old fashioned cigarettes.

“There is massive advertising and promotion around them and there is evidence that, in some countries, they are being marketed at children.

“That’s what we want to avoid at all costs.”