Make vaping regulation too strict and it'll be easier to just keep smoking

Dr Eric Crampton
9 August, 2019

Eighties glam-metal band Cinderella taught us we don't know what we've got until it's gone. But it can be harder to know what you could have had if you never had it at all.

We can thus be thankful the regulatory framework for vaping and reduced-harm tobacco alternatives is coming only after a lot of Kiwis have been able to stop smoking thanks to vaping. But those vapers will need to step up to ensure they do not lose what they now have.

Regulatory expert Peter Huber distinguishes between two types of regulatory agencies. Some are charged with regulating existing risks. Others act more as gatekeepers, assessing whether new and potentially risky products should be allowed to enter the market at all. Onerous regulations mean few can benefit from, or be harmed by, the regulated product. Appropriate regulation strikes a balance between benefits and costs.

Huber says agencies regulating existing risks do a better balancing act because established consumers of regulated products push back against excessive regulation.

But "gatekeeper" agencies can easily be too precautionary. Regulate too heavily against a new pharmaceutical product, and most prospective beneficiaries will never know what they have missed. Regulate too lightly, and there will be front-page headlines if anything goes wrong, and the officials who signed the approval may find themselves in trouble with the press, the public, and the minister.

For a long time, vaping products in New Zealand existed in a grey market. Consumers could legally import nicotine-containing vaping fluids from abroad. But the Ministry of Health said vaping products whose nicotine derived from tobacco plants was banned under the SmokeFree Environment Act's prohibition on the sale of oral tobacco products.

Still, vaping picked up in New Zealand as it became obvious that the government saw vaping as an attractive alternative to smoking. A regulatory framework would come. And grey market trading in vaping products became more open. More people successfully quit smoking by switching to vaping – an activity Public Health England assessed as at least 95 per cent safer than smoking. And ex-smokers became vocal advocates helping others with finding vaping products, mixing vaping fluids, and switching to safer alternatives.

Because the vaping community established itself without a government-provided regulatory framework, but under the obvious threat of regulation if things got out of hand, it developed for itself good practices.

Some smokers needed high nicotine concentrations in vaping fluids to make the switch; others found some flavours more palatable than others. The vaping community was able to help them. Vendors were careful not to draw unwanted attention and worked to prevent sales to minors. And the vaping community of ex-smokers grew.

During much of this period, the government took criticism for failing to legalise vaping. The ban on vaping meant communities that most needed less harmful alternatives could not easily access vaping.

But a 2018 court decision found the SmokeFree Environments Act did not prohibit the sale of oral tobacco products unless those products involved chewing. Neither vaping nor the heated-tobacco product IQOS, which was the direct subject of the ruling, involved anything like chewing.

So vaping went from banned to legal rather quickly – and without a clear regulatory framework.

After the ruling, vaping community pressure for the speedy establishment of a regulatory framework was risky. A regulatory framework established before the vaping community more fully established itself could too easily be too strict.

The Ministry of Health and the more enlightened parts of the tobacco harm reduction research community understood the need for regulation that helped smokers find the right alternatives for themselves. But American scare-stories about youth experimentation with e-cigarettes generated substantial public and political concern.

Those stories ignored how very few took up vaping more regularly. They also ignored that while youth vaping is bad, youth smoking is worse.

British work, and especially by Action on Smoking and Health, was more balanced: while just under 20 per cent of 18-year-olds had ever tried e-cigarettes, only about 2 per cent of those 18-year-olds used them regularly – and youth experimentation with smoking dropped.

Scare stories built demand for tight regulations to protect youths, like limits on nicotine concentrations and bans on flavours. A March Cabinet Paper foreshadowed those kinds of regulations are in the offing. Continued delay in producing legislation suggests Cabinet has been asking for more restrictive redraftings.

But strict regulations can too easily hinder adults wanting to switch. Many vapers were able to quit smoking thanks to the products likely to be banned under the coming regulations.

Making sure what the vaping community has now isn't gone, but is there for those smokers who want to follow in their footsteps, is necessary both for vapers and the government's SmokeFree 2025 goal. The vaping community has an important role in making sure the coming regulation is sensible.

Dr Eric Crampton is chief economist with the New Zealand Initiative. The initiative's work is funded by membership subscriptions of over fifty of the country's top companies, including some from the tobacco industry. The initiative's work remains independent; its prior reports on vaping are available on its website.

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