Govt v. Tobacco: The Tale of the Vape

Dr Eric Crampton
17 March, 2021

In the classic Simpsons’ episode “The Old Man and the Lisa”, young environmentalist Lisa Simpson finally convinced the rather evil Mr Burns of the merits of recycling.

Of course, it did not go well.

And it reminds me, just a little, of the Ministry of Health’s conversion to supporting vaping as a way of reducing smoking. Like Burns, the government took on the message but utterly missed the point.

Mr Burns’ new recycling plant, powered by old newspapers, with machinery made of used cans, produced a new product: Li’l Lisa’s Slurry. The slurry had many uses: high-protein feed for farm animals, insulation for low-income housing, a powerful explosive, and a top-notch engine coolant.

But, to Lisa’s horror, the factory dragged giant recycled nets through the ocean and scooped up, well, everything. The slurry was made of 100% recycled sea life. It certainly was not very environmentally friendly.

The Ministry of Health released its proposed regulatory framework for vaping in February; submissions closed this week. The regulations follow from amendments to the SmokeFree Environments Act passed last year.

If the regulations are enacted unamended, they will be about as consistent with the harm-reduction purposes of the SmokeFree Environments Act as Li’l Lisa’s Slurry was with real environmentalism. They will make it harder for smokers to quit.

To begin with, it will be harder for smokers to find the help they need to make the shift.

Before the court decision that confirmed that reduced-harm alternatives to smoking were legal, communities of ex-smoking vapers organised themselves to help other smokers quit. Real expertise in helping smokers to shift to less harmful alternatives came from the vaping community itself.

Ex-smokers’ lived experience helped others to follow their paths.

The Ministry’s proposed regulations would ban anyone without an NZQA qualification from providing that kind of assistance, regardless of how many smokers they had already helped. Specialist vape shops will be allowed to provide advice, as will those with a government-approved qualification. But the culturally-relevant expertise developed by the community itself is being cast aside.

It will also be harder for would-be ex-smokers to find the products that suit their needs.

The legislation distinguishes specialist vape retailers, who would be allowed to sell a broader range of products and who would be allowed to provide more advice to customers, from others that would be allowed to sell only a limited range of vaping products.

Non-specialist retailers would be forbidden from telling customers much of anything about the products they have on offer. A dairy owner could tell customers the names of the products, but would be not be able to explain the differences between vape pens and heated tobacco products, or the differences between different brands. If a customer who wanted to quit smoking asked whether they should start with a higher or lower nicotine product, the dairy owner would not be able to provide advice. And neither could the dairy owner simply hand the smoker a pamphlet about the different options: that would also be banned.

Specialist retailers would be able to provide advice, and to offer a broader range of flavours. But under the regulations, specialist vape shops would be banned from earning too much from non-vape products, which could pose problems for vape shops in smaller communities.

Worse, the proposed regulations would also ban most flavours, even for specialist retailers. Kiwi vape company VAPO warns that over 95% of their flavour concentrates include sweetening agents, and the regulations would ban sweeteners. It is harder to encourage smokers to switch, or to keep people from switching back to smoking, if the vaping flavours they prefer are forbidden.

The regulations also set size limits on vape fluid containers, as well as concentration limits. Vapers would need to purchase larger numbers of smaller containers. Waste vape materials can be difficult to recycle. But proposed packaging regulations also forbid listing potential environmental benefits on any product’s label – and that would include notifications about any recycling scheme offered by the manufacturer.

Some parts of government encourage waste minimisation. But the Ministry’s regulatory framework will ensure greater amounts of packaging waste while forbidding advertising any recycling schemes on the packaging.

Suppose that the would-be ex-smoker finds a product that works, despite those problems.

The legislation also bans vaping in indoor areas at places like bars and restaurants.

The ban is a bad enough idea on its own: bars and restaurants should be able to choose the rules that work for them and for their patrons. But because the legislation bans indoor vaping, the regulations must decide what counts as indoors.

It seems simple enough, but policy has not dealt well with the problem. Many bars and restaurants have outdoor seating areas. Some of those areas are in enclosed courtyards. Some are shielded from the wind by roll-down awnings. Others have partial roofs, protecting patrons from the rain while leaving them exposed to wind. If a bar sets up a marquee tent over its outdoor area, is it still outdoors? What if one wall is kept open?

The Ministry proposes cutting this knot with a simple rule: if an area has any overhead covering, whether partial or total, whether temporary or permanent, that area would be part of the great indoors. A windy balcony with partial covering against the rain would be considered indoors. It would seem ludicrous, but a strict interpretation of the proposed regulation would imply that a large umbrella at a picnic table could create an indoor area.

Smokers and vapers alike will be pushed off the premises, into potentially unsafe night-time environments.

Lisa Simpson despaired at what Mr Burns’ take on environmentalism had wrought. Seeing the slurry plant, and its recycling of all of the ocean’s creatures, she told Burns, “You haven’t changed at all. You’re still evil. And when you’re trying to be good, you’re even more evil.”

The Ministry of Health is not evil. Officials there sincerely want people to be able to switch to less harmful alternatives to smoking. And there are some laudable parts of the regulations. The ingredient notification regime will help if any ingredients in vaping products cause adverse reactions.

But even when the Ministry is trying to do good, it still has a hard time getting things right. May the final regulations be a bit more sensible than the Ministry’s first draft.

Stay in the loop: Subscribe to updates