Following the introduction of the Public Health (Tobacco and Other Products) Act 2023 (the Act), which consolidates various Commonwealth tobacco-related laws, the transition period from April 2024 ends and the Act comes into full effect on July 1 2025.
The transition period was designed to allow manufacturers, importers and retailers to shift to the new arrangements. A prolific black market is also in the legislators’ sights.
The Illicit Tobacco Taskforce seized and destroyed 1.4 million cigarette sticks in 2023, up from 400 million in 2018.
Simultaneously, NSW is reforming retail laws to force tobacco retailers to obtain a licence, and increase fines for those caught selling under-the-counter products to address a growing black market of illegal cigarettes.
In October 2022, CEO of VicHealth Dr Sandro Demaio told LSJ “recent seizures in Western Australia found two-thirds of products contained undeclared nicotine, and a third of them contain chemical substances that are banned by the Food and Drug Administration.”
“It is endemic to the industry that the composition of chemicals within the e-liquids is either wrongly labelled, or not labelled at all. The National Health and Medical Research Council’s communication notes that these liquids have been reported to contain harmful substances such as heavy metals, volatile organic compounds and cancer-causing chemicals.”
Demaio added, “An Australian review and toxicological analysis identified 243 unique chemicals, 38 of which were listed poisons … which have been associated with cancer, lung injury and brain damage. The lack of proper protections around these products is of extreme concern. Whether they contain nicotine or not, they contain between 200 and 300 chemicals that are associated with really concerning health outcomes.”
National action against rising smoking and vaping trend
According to Australian Institute of Health and Welfare National Drug Survey 2019, smoking remains the single most important preventable cause of ill health and death in Australia.
The Public Health (Tobacco and Other Products) (Consequential Amendments and Transitional Provisions) Act 2023 and the Public Health (Tobacco and Other Products) Consequential Amendments and Transitional Provisions) Rules 2024 commenced on April 1 2024. From April 2024 to March 31 2025, those considered compliant with the new tobacco packaging requirements in the Act will adhere to the previous legislation: Tobacco Advertising Prohibition Act 1992 and Regulations, Tobacco Plain Packaging Act 2011 and Regulations, and Competition and Consumer (Tobacco) Information Standard 2011.
From April 1 2025 to June 30 2025, retailers may sell-through stock that complies with the old legislation.
The Act modernises and simplifies the tobacco laws, introducing new measures to discourage smoking and the use of tobacco products; restrict the promotion of e‑cigarettes; and address the health risks of vaping and using e‑cigarettes. The Act replaced the Tobacco Advertising Prohibition Act 1992 and Tobacco Plain Packaging Act 2011, which were repealed on 1 April 2024.
Malcolm Baalman, Senior Policy and Advocacy Advisor at the Public Health Association of Australia (PHAA), has high praise for the way the legislation was formed, a process which PHAA was strongly involved in.
“The consultation process was excellent. It began three or four years ago under the previous government. A comprehensive review of the legislation was needed, since the previous laws were 20 years old, or more. It was a process of submissions, multiple rounds of consultation, and by late 2022, there was a major Bill to reform Australia’s tobacco laws,” he says.
“As an exercise in public policy making, it was very good.”
Baalman believes the industry has had ample time to comply with the new federal laws.
“To be fair, it’s a complex act with extensive regulatory changes. A lot of these reforms were flagged years ago, so I don’t think there’s a case for saying the industry hasn’t been given ample time to act.”
The new law demands health promotion inserts in each pack, providing a phone and website contact for Quit in addition to plain, standardised packaging. Language like “light” and “mild” will also be disallowed under reforms.
Baalman says, “We know that the presentation of marketing and product packaging can be changed fairly quickly. If that means old stock has to be sold off and new stock must meet regulations, six months or more is ample time. Why should there be further delay in regard to a product that is killing people?”
In November 2023, Health Minister, Mark Butler, announced reforms to tighten vaping regulation to be rolled out over 2024 and 2025. The Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Act 2024 took effect on 1 July 2024. The aim was to strengthen laws to address existing loopholes, counter the rising number of children and teens vaping, and to also enable those with prescriptions to still access vapes in approved retail settings.
Baalman says, “Cigarette use is clearly trending downwards. The adult daily smoking rate is below 10 per cent, close to about 8 per cent. Vaping, on the other hand, began accelerating rapidly about 5 years ago owing to heavy industry promotion and the rapid increase in worldwide supply from China.”
In October 2022, China banned all flavoured e-cigarettes and the sale of them to minors. This year Vietnam will ban all e-cigarettes, aligning its full ban approach with Brunei, Cambodia, Laos, Singapore, and Thailand.
On January 1 2024, an end to the importation of disposable, single-use vapes came into effect in Australia. From 1 March 2024, further changes were implemented, including the cessation of the personal importation of vapes; ban on the importation of non-therapeutic vapes; requirement for therapeutic vape importers and manufacturers to notify the Therapeutic Goods Administration of their product’s compliance with the relevant product standards; and a requirement for importers to obtain a licence and permit from the Australian Government’s Office of Drug Control before the products are imported.
Product standards for therapeutic vapes have also been tightened, including limiting flavours, reduced permissible nicotine concentrations, and the requirement for pharmaceutical packaging. The transition period for these measures to take effect, to allow for businesses to comply with the new requirements, will end in mid-2025.
The vaping reforms were the focus of a joint meeting of all Australian Health and Police Ministers in 2023. According to the Health Minister’s department, ministers “agreed to task officials with developing a national enforcement framework for vaping products – to stamp out unlawful vapes in the community and prevent illegal markets from emerging. It was agreed that a multi-agency National Vaping Working Group will be established to oversee development and implementation of the national enforcement framework.”
Data from the first quarter of 2023 revealed that close to one in seven 14- to 17-year-olds and one in five 18- to 24-year-olds were current vapers. There is consistent evidence young Australians who vape are around three times more likely to take up tobacco smoking compared to young Australians who have never vaped.
The Government committed an additional $25 million to Australian Border Force and $56.9 million to the Therapeutic Goods Administration over two years to enforce the new laws. Additionally, support was provided to vaping and smoking cessation support services. The 2023-24 budget provided $29.5 million in funding to improve access to Quitline services and the creation of an online cessation hub, updated clinical guidance for health practitioners and the redevelopment of the My Quit Buddy app.
The reforms were praised in a feature for the Australian and New Zealand Journal of Public Health in January 2024 entitled “Closing loopholes in Australian vaping laws: why Australia’s proposed vaping reforms are sound public health policy”, co-authored by Associate Professor Becky Freeman from the University of Sydney, Professor Tanya Buchanan, CEO, Cancer Council Australia, and Anita Dessaix, Chair of Cancer Council’s Public Health Committee.
Lead author Professor Freeman said that although it’s illegal to sell nicotine vapes since 2021, purchasing e-cigarettes remains alarmingly common and easy for young people.
“Currently, non-nicotine vapes are exempt from regulation that restricts vape access to those with a doctor’s prescription. It’s a legal loophole that allows retailers such as tobacconists, convenience stores, chicken shops and petrol stations to get away with selling vapes under the guise that they don’t contain or aren’t labelled as containing nicotine. The reality is that most of these e-cigarettes do contain nicotine, and even non-nicotine vapes are harmful.”
Freeman tells LSJ, “Vaping rates skyrocketed because we failed to close legislative loopholes that emboldened retailers to sell illegal products to children. Without effective monitoring of how the industry responds to the new pharmacy-only sales laws, we could jeopardise Australia’s history of successful tobacco control. Globally, the tobacco industry is already pushing nicotine pouches in yet another attempt to hook in young people.”
Baalman reflects, “At this point, we have had very few prosecutions. I think what we’ll see over the next year or so is that enforcement officers will have powers to investigate reported breaches, and [both civil and criminal] prosecutions will start to increase. These processes take time.”
NSW cracks down on black market in tobacco
From 2018 to 2024, tobacco stores registered in NSW rose from 14,500 to 19,500. A lack of red tape – NSW being the last state to introduce a licensing regime – means anyone who wants to open a cigarette shop in the state simply needs an ABN before notifying NSW Health to obtain a Tobacco Retailer Notification number (TRN).
On October 24 2004, NSW Health Minister Ryan Park announced a new licensing regime for tobacco stores and an increase in fines for those caught selling under-the-counter cigarettes and vapes.
The intended reforms under the Public Health (Tobacco) Amendment Bill 2024 (passed on October 15) mean a fit-and-proper test will apply to anyone wanting to open a tobacco shop, and they will pay an annual licence fee; penalties for trading without a licence will increase to $44,000 for individuals and $220,000 for corporations; penalties for selling illegal cigarettes will more than double to $22,000 for individuals and $110,000 for corporations; and the number of NSW health enforcement officers will double to 28.
Baalman says, “On the ground, states have been in a race to claim they’ve got the highest penalties. NSW still doesn’t have a registration system for tobacco laws, since the NSW-specific Bill only emerged in recent weeks, and we can assume it will take a year to get up and running.”
He recalls, “NSW had eight people in enforcement five years ago. The more staff you employ, the better your implementation will be. If you walk down Darlinghurst Road, as I did [recently], those vaping shopfronts have largely disappeared. The available evidence is only just beginning to emerge about the impact on backroom retailing. It won’t go to zero without enforcement and prosecutions. But there’s a decline in retailing and supply, and China appears to have been taking action on disallowing products to Australia in light of the new laws.”
Importantly, bans change the public perception.
“Legislation changes the way young people think,” says Baalman. “Blokes in their 20s who can’t get the supply of vapes they want might rethink taking up the habit. We’re less than six months into the new vaping laws, and the signs are good, but our organisation is evidence-based so we are waiting and watching to assess the effects.”