General policy statement
This Bill amends the Smoke-free Environments Act 1990 (the Act) to bring the provisions of the Act up-to-date and to ensure that all regulated products (tobacco smoking products, herbal smoking products, smokeless tobacco products, and vaping products) are adequately covered.
The concept of a “regulated product”
is introduced to incorporate the broader scope of products regulated under the Act. It is intended to provide flexibility so that the amended Act can more readily incorporate reduced-harm products that may come along in future, including those which may not be anticipated at present (in contrast to the significant amendments that have been necessary to incorporate vaping and vaping products).
The Bill aims to take a balanced approach to the regulation of vaping and smokeless tobacco products. It acknowledges that vaping and smokeless tobacco products are less harmful than smoking and that they may help some people to quit smoking. At the same time, it reflects concerns about children’s and young people’s access to and use of these products.
To protect children and young people from the risks associated with vaping and using smokeless tobacco products, the Bill extends many of the existing provisions of the Act to vaping products and heated tobacco devices (the tobacco component of smokeless tobacco is already regulated).
Part 1 of the principal Act is amended to prohibit vaping and the use of heated tobacco products in legislated smokefree areas (ie, indoor workplaces, early childhood centres, and schools).
New Part 2 of the principal Act extends, to the extent applicable, the existing restrictions on the advertising, promotion, sale, and distribution of tobacco products to all regulated products. This includes placing restrictions on—
the sale, and supply in a public place, of vaping products and heated tobacco devices to people under the age of 18 years:
inducements and rewards associated with vaping products and heated tobacco devices, for example, discounts and loyalty points (with some exemptions for specialist vape retailers).
However, the Bill also recognises that smokers need support and advice to successfully switch to a much less harmful product. It, therefore, exempts vaping products from some of the provisions that apply to tobacco products. It enables all retailers to display products in-store, in contrast to requirements that require tobacco products to be out of the public’s sight.
In addition, the Bill makes a distinction between specialist vape retailers and generic retailers, such as dairies, supermarkets, and service stations. The Bill enables specialist vape stores to be approved as such by the Director-General of Health. The Bill allows an employee of an approved vape store to give advice and recommendations about vaping products to a customer within that place of business. It also enables approved vape stores to—
allow customers to vape within the store for the purpose of sampling products before purchase:
give discounts, loyalty points, etc:
sell vaping products without any restrictions on flavours:
use the words “vape”
and “vaping”
in their trading name.
In addition, the Bill allows—
public health messages approved by the Director-General of Health:
registered health practitioners and other specified health workers to give advice and recommendations about vaping products to patients or clients to support them to switch, thereby reducing the harm to their health caused by smoking.
New Part 3 of the principal Act applies provisions enabling standardised packaging requirements to be set in regulations for all regulated products. The intent is to set tailored requirements for different product types that acknowledge their different risk profiles.
This Part also retains the existing prohibitions on the import for sale, distribution, etc, of tobacco products suitable for chewing or any other oral use (eg, snus).
New Part 4 of the principal Act sets out new provisions to regulate the safety of vaping products and smokeless tobacco products. This recognises that, while they are less harmful than smoking, they are not risk-free. This Part is intended to also be suitable for regulating the safety of any products that may be newly regulated in future.
The Bill requires manufacturers and importers to notify a vaping or smokeless tobacco product to the Ministry of Health before marketing it and to certify that the product meets any applicable standards. The notification system is to support rapid follow-up and remedial action should any safety issues arise with a product or product part.
Other provisions in the Bill enable product safety requirements to be set by regulations, require manufacturers and importers to report adverse reactions, and enable the Director-General of Health to issue product recalls, suspend and cancel product notifications, and issue warning statements about products.
Flavours may be used to attract children and young people to vape or use smokeless tobacco products, however, they also seem to be an important factor in supporting smokers to switch. The Bill allows generic retailers to sell only the flavours that are set out in Part 1 of new Schedule 2 (ie, tobacco, menthol, and mint). There are no flavour restrictions on approved specialist vape retailers (other than any prohibited flavour). The list of flavours in the schedule will be able to be amended over time by regulations. The Bill also prohibits the use of colouring substances in vaping liquid as data does not support their safe use.
The product safety regime set out in new Part 4 will be cost recovered from the regulated industry, consistent with Treasury’s Guidelines for Setting Charges in the Public Sector. The Bill enables fees and levies payable to be prescribed by regulations.
In addition to provisions related to the regulation of vaping products and smokeless tobacco products, the Bill—
allows for an assessment tool to be provided in regulations to support a determination of whether a space within a premise, such as a bar, is an open area (where smoking is allowed) or an internal area (where smoking is prohibited). This aims to provide clarity to business owners and enforcement officers:
enables allowable content for manufacturers’ price lists to be set out in regulations to prevent price lists from being used for promotional purposes:
repeals the provision that allows an exemption from the Act’s advertising and sponsorship prohibitions for multi-national sporting events—a provision that is out-of-date.
The Bill is drafted to commence on the day after the date that it receives the Royal assent. Transitional provisions are provided to give time for existing businesses to adjust, as follows:
6 months from Royal assent for the prohibition on sale by a generic retailer of a vaping product or smokeless tobacco product containing a flavour other than a permitted flavour:
6 months from Royal assent for a manufacturer or importer to notify a vaping or smokeless tobacco product.