Australia Senate inquiry – new anti-vaping legislation

A response to Australia’s Senate inquiry into the Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024. The inquiry page is here.

Download from the Senate website: Submission 173 or open from here: Clive Bates: comment to Senate Standing Committees on Community Affairs.

Summary arguments

  • There is excellent potential to exploit low-risk alternatives to cigarettes to reduce the disease, welfare, and economic burdens caused by smoking. Australia is currently benefitting from that opportunity despite, rather than because of, its regulatory regime for tobacco and nicotine. We are in the uncomfortably paradoxical situation of relying on criminal activity to allow Australians to improve their own health and welfare, on their own initiative and at their own expense. New legislation should regularise harm reduction and place it on a pragmatic and sound legal footing.
  • The result of following the authoritarian reflexes of Australia’s tobacco control establishment has been the creation of an uncontrolled and unregulated illicit market for recreational nicotine products. The government proposes to address this by taking more advice from the people whose poor advice caused the problem in the first place and by doubling down on bans and restrictions on vape products. This will not work for the same reasons the existing regime has failed – there is no evidence that full or de facto prohibitions function in the ways their advocates hope or expect.
  • The result of prohibitions and the design of inexplicably complicated ways to access vaping and other safer products has not been the hoped-for control of the consumption of these products or the protection of young people. It has led to the nourishment of criminal networks that will ultimately supply anything to anyone with money, no matter how young, and engage young people in the lower tiers of illicit supply chains.
  • There is little to be gained by providing a critique of the clauses of the proposed legislation because the underlying regulatory and public health philosophy behind the Bill is at fault. The conceptual foundations will need to change before a more rational pro-health regime can be restored. It makes no sense at all for regulators to make it far harder to lawfully access much safer nicotine products, given that cigarettes are ubiquitously and easily available. The challenge is now to regularise and regulate the trade in safer nicotine products using risk-proportionate regulation.
  • An effective and realistic approach to vaping and young people is essential for the credibility of such a regime. Such a regime should be built on insights into youth risk behaviours and realistic expectations about adolescent life. It needs to be balanced with the public health imperative to address smoking in both adults and youth.  Young people have a stake in adult life through the welfare of their family and friends, through role-modelling by adults, through secondhand smoke exposure, and because they will grow up to be adults.
  • The approach to youth vaping should be based on the following insights:
    • Significant illicit trade in vapes and tobacco is a threat to youth through the supply of unregulated nicotine products (including cigarettes), the supply of other illegal goods and services, and the incorporation of young people into criminal networks as suppliers.  It is essential, therefore, to regularise the commerce in vaping products as part of a strategy to protect youth from the broader harms of criminalisation.
    • In the absence of vaping, some youth would have become smokers. The demand for nicotine is underpinned by multiple psychosocial risk factors and cannot be legislated away.  A diversion from smoking to vaping is beneficial in public health terms. For young people who still smoke, the option to switch later to vaping is a benefit. It may be uncomfortable for some, but youth vaping addresses youth smoking. Measures to prevent youth vaping can have the effect of increasing youth smoking. It is essential to avoid this.
    • There will be some who take up vaping who would not otherwise have smoked. This use will be largely experimental and likely transient as it will be mainly among those who did not have a propensity to become smokers. Adolescence is the period between childhood and graduation to adulthood; some degree of adolescent experimentation with novel products in widespread use by adults is inevitable.  However, there are policies that can limit this:
    • Responsible retailing. There must be robust enforcement of age restrictions and a licensing scheme for retailers of all tobacco and nicotine products.  Sanctions should be meaningful, with significant fines and loss of license. License conditions could include mandatory training, controls on product display, and a duty to keep CCTV footage at the point of sale.
    • Responsible marketing. Advertising of vape products functions in practice as anti-smoking advertising, and it is important for adults. However, the themes and placement must be limited to those consistent with an adult harm reduction focus. This also requires that the packaging, branding, and trademarks of vaping products become more sedate and do not appeal to youth. Control should be placed on flavour descriptors [the name given to flavours] rather than on product characteristics or chemical recipes.
    • Responsible supply. The authorities must ensure the market is dominated by responsible, lawful, and regulated suppliers – not criminal networks. This means meeting the reasonable expectations of Australian adult nicotine users to have convenient and lawful access to low-risk products that are appealing and effective alternatives to cigarettes. This can only work via retailing, not via physicians and pharmacies. The answer to illicit trade is lawful trade in the products adults wish to use for their own benefit. Calls for “more enforcement” grounded in war-on-drugs rhetoric are unlikely to work without a credible alternative.

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