Vaping framework essential to Government achieving SmokeFree 2025 goal

Dr Eric Crampton
27 January, 2020

The cogs of government and regulation can grind slowly. And, sometimes, that can be for the best.

Legislating in a hurry can be a problem. And proposing legislation in the middle of a moral panic can be a disaster.

So we should be thankful that the Government last year seemed to hit the pause button on its regulatory framework for vaping.

Let's take a step back. The sale of vaping and other novel reduced-harm nicotine products was considered banned until a March 2018 judicial decision.

Where the Ministry of Health had asserted that the SmokeFree Environments Act banned a broad assortment of products, the court ruled that the law only banned those products that involved chewing or activities similar to chewing.

Neither vaping nor heated tobacco products are anything like chewing.

So vaping and heated tobacco products were made legal through a rather unique route: a court finding that they had never really been illegal. 

In the leadup to that decision, the ministry had been considering options for legalisation, recognising that vaping is far safer than smoking. But the judicial decision came before that framework was ready.

By the middle of last year, everyone expected that legislation would soon be tabled.

But then the furore began to build.

Nicotine vaping in America has been widespread for years. But states that had not legalised cannabis also have black markets in vape cartridges containing THC, cannabis' psychoactive component.

Quality control in black markets can be a problem. Cannabis oil is fairly expensive, but diluting it makes the product less viscous.

Users could shake a cartridge to get a feel for whether they were being sold something that had been watered down.

Some manufacturers of illicit THC cartridges started using thicker Vitamin E acetate as a cutting agent instead. Unfortunately, it was also really really dangerous to vape.

The heated oil coats lung cells, sending users to hospital and, as of early this year, killing 57 people. 

It was obvious from the start that these illnesses were not due to normal nicotine vaping. Vaping had been prevalent for years; why would hundreds of people suddenly start showing up at hospital?

Nicotine vaping is prevalent internationally; why would the cases all be concentrated in the United States?

It looked far more like poisoning than like a delayed reaction to years of vaping.

And while some users claimed that they had only ever vaped nicotine, youths using illegal cannabis products might not always confess to having done so.

Sensational American media played up fears, and the Centres for Disease Control did not clear up confusion quickly.

An article published in Drug and Alcohol Review early this year highlighted poor reporting conflating illicit THC products with nicotine vaping. The ensuing panic resulted in bans on various flavours of nicotine-based vaping; illegal THC-based products could continue to carry whatever flavours users wanted.

Unfortunately, New Zealand news reporting on the outbreak also leaned heavily to the sensational side. Headlines referred to "vaping related" illness and death in the United States, with mention of illicit THC cartridges and Vitamin E acetate relegated to paragraphs much further down the article.

Few here would associate vaping with illicit cannabis products; vaping really means nicotine-based alternatives to smoking cigarettes. The headlines misled.

None of it made for a sober environment for considering vaping regulation. Some regulation would be helpful. A notification regime requiring manufacturers to list their ingredients would make it much easier to identify the problem should any strange health outbreak ever here emerge.

But had Associate Health Minister Jenny Salesa tabled a regulatory framework for nicotine vaping, it would have been in the middle of a media panic about killer vapes, and a parallel panic about youth vaping.

There would have been strong pressure for that framework to chase ghosts.

Too many people thought flavourings in nicotine vapes were killing people, so the Government would have been under even more pressure to ban a wide variety of flavours, even though many ex-smokers report that those vape flavourings were important in helping them quit.

Banning those flavours could wind up doing harm.

The new year brings, I hope, an opportunity for more tempered consideration of the regulatory framework.

During last year's media panic, the Government announced a few measures it intended to include in vaping regulations, including restrictions on allowed flavours; restrictions on advertising that could make it harder to tell smokers about alternatives; and, bans on vaping in bars, cafes, restaurants and workplaces rather than letting those places set the rules that best suit the people in those spaces.

And last year's panic about youth vaping should be tempered by Action on Smoking and Health's survey, released last week, showing that youth vaping rates are low.

Getting the framework right matters if the Government wants to hit its SmokeFree 2025 goal. Letting the gears grind just a little longer could be well worth it.


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