Explanatory note
This Supplementary Order Paper amends the Smokefree Environments and Regulated Products (Vaping) Amendment Bill. In summary, the amendments would—
require the Bill to commence 3 months after the date of Royal assent (except for new clause 30):
include heated tobacco device in the definition of regulated product and revise the definition of heated tobacco product:
prohibit retailers from making oral communications to their customers in their retail premises that are similar in nature to advertising of regulated products (however, certain communications are exempted from this prohibition):
enable retailers for whom vaping products account or will account for at least 60% of their total sales to seek approval to be a specialist vape retailer (In addition, the Director-General must be satisfied that the lower threshold is appropriate after having regard to specified criteria):
require the notification of a notifiable product to expire after 12 months (unless earlier renewed or cancelled):
align the infringement offences and fees regime in the Bill with the Ministry of Justice Policy Framework for New Infringement Schemes:
prohibit vaping in vehicles carrying children by amending the Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Act 2020.
Heated tobacco devices
Heated tobacco devices are included in the definition of regulated product. The definition of heated tobacco product is revised to distinguish the device from the product which is used with the device. This demarcation clarifies that devices used with heated tobacco products are not vaping products.
A heated tobacco product is redefined to mean a smokeless tobacco product that is intended to be used in a heated tobacco device. A heated tobacco device is defined as a device that is intended to be used with a heated tobacco product to vaporise or aerosolise nicotine from tobacco. The definition of vaping device is amended to exclude heated tobacco devices.
In addition, the term heated tobacco device is included in the definition of notifiable product. This means that a heated tobacco device must be notified in accordance with Part 4 before they are to be sold in New Zealand.
Prohibited oral communications
New section 26A would prohibit a retailer from making oral communications to a customer in the retailer’s premises that would have the effect of—
encouraging the use of a regulated product:
notifying the availability of a regulated product:
promoting the sale of a regulated product:
promoting smoking or vaping behaviour.
However, the prohibition against those kinds of oral communications would not apply to—
communications made in response to a product request that do no more than identify the regulated products available for purchase in that place and indicate their price:
communications encouraging smokers to switch to a product that is less harmful than smoking:
communications about vaping products made, in accordance with any regulations, by specialist vape retailers to customers in their approved vaping premises:
the provision, in accordance with any regulations, of information relating to the safe use of regulated products available for purchase in any approved vaping premises:
communications made by a retailer who is a suitably qualified health worker for the purpose of supporting customers to switch from smoking to vaping.
The description of prohibited oral communications is based on the definition of regulated product advertisement. A retailer who contravenes new section 26A (without reasonable excuse) is liable to a penalty on par with the offence of publishing a regulated product advertisement.
Application for approval to be specialist vape retailer
A retailer applying for approval to be a specialist vape retailer must meet the criteria in new section 14A(2). One of those criteria requires that at least 70% of a retailer’s total sales from their retail premises are or will be from sale of vaping products. New section 14A(2)(b) is amended to specify an alternative threshold of 60% which applies if the Director-General is satisfied that the lower threshold is appropriate in the circumstances after having regard to—
the geographic location of the retail premises; and
the population in relation to which the retailer carries out their business; and
New section 14A(3B) requires that it is a condition of an approval that the applicable sales threshold be maintained or, if it was not attained when approval was given, that it be maintained on and from a date specified in the approval.
New section 14A does not apply until the date that is 9 months after the commencement date.
Expiry of notifiable products
New section 62A is inserted to state that a notification of a notifiable product expires 12 months after the date of notification (unless earlier cancelled or renewed). A product whose notification has expired must not be sold by its notifier. A retailer must not sell a product whose notification has expired for more than 3 months past its expiry date.
Infringement fees
New section 81 is amended by replacing the maximum infringement amounts (to be set by regulations) with fixed fees that align with the Ministry of Justice Policy Framework for New Infringement Schemes. An infringement fee of $200 is fixed for offences against any of new sections 37(3), 38(3), 41(2), 42(3), 43(4), 46(4), and 52(4) or new section 40(2) (in relation to non-tobacco products). For offences against any of new sections 33(4), 34(5), 36(4), 39(2), 45(3), 52(4), and 53(3) or new section 40(2) (in relation to tobacco products), an infringement fee is fixed at—
$1,000, in the case of a manufacturer, an importer, or a distributor; or
Smoking and vaping in cars prohibited
On 28 November 2021, the Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Act 2020 will come into force. Clause 30 would amend that Act to prohibit vaping in motor vehicles carrying children. Note that vaping is defined by the Bill to mean inhaling using a vaping device or heated tobacco device.
Other changes
This Supplementary Order Paper makes the following changes which are worth noting:
the definition of additive in section 2 is amended to provide that in relation to a vaping substance, additive means a substance that is not propylene glycol or vegetable glycerin:
a new definition of internal area is inserted and the proposed amendment to the definition of open area is removed. An internal area, in relation to any premises or vehicle, means the area determined in accordance with any criteria or means prescribed in regulations, but if none are prescribed, the current definition of internal area in the Act will apply:
new section 32, which prohibits the distribution or supply of a regulated product for free or at a reduced rate, is amended to exempt vaping products that are part of a smoking cessation programme:
new section 63 is amended to prohibit retailers from selling notifiable products that have been recalled:
new section 63(2) to (3A), which specifies a retailer’s obligations regarding vaping products that contain flavours, do not apply to vaping products that are part of a smoking cessation programme:
the regulation making powers in new sections 75, 76, 77, and 78 are amended to include additional powers expressly contemplated by provisions in the Bill and remove regulation making powers that are not needed:
the regulation making powers in new sections 79 and 80, which relate to fees and levies, are amended to enable fees and levies to apply to retailers.
This Supplementary Order Paper also makes minor, technical, and consequential changes to the Bill.
Departmental disclosure statement
The Ministry of Health considers that a departmental disclosure statement is not required to be prepared for this Supplementary Order Paper.