ACAPMA is in urgent discussions with the NSW Minister for Health and the Chief Medical Officer in respect of a letter that was circulated to tobacco retailers this week. The letter has raised serious concerns about the capacity of all retailers selling vapes to rely on the accuracy of product labelling and a number of members immediately reached out to ACAPMA to seek guidance on the legality of the instruction after receiving the letter.
The letter pertains to the retail of e-cigarettes (or vapes) and appears to have been motivated by a laudable desire to remind retailers of the existing legislation banning the sale of vape products containing nicotine.
But in a move that is unprecedented in terms of national product labelling laws, the letter states that the onus is on retailers to verify the labelling claims made by vape manufacturers in respect of nicotine content.
Specifically, the letter states “You cannot rely on the labelling of e-cigarette products to know whether products contain nicotine.” The letter goes on to advise retailers that “It is your responsibility to ensure that any e-cigarette or e-liquid products your business sells do not contain nicotine (for example, by having them independently tested by an authorized facility)”.
Members were rightly concerned that this places an impractical burden on the retailer to test products purchased in good faith from manufacturers – and others questioned the legality of such a directive.
“Directing retailers to verify and certify the contents of products that they did not manufacture is far from reasonable and appears legally invalid. By default, it is an admission that Australian Governments are failing to properly enforcing labelling standards for vape products”, said ACAPMA CEO Mark McKenzie.
“Like their customers, retailers must be able to rely on the information provided on product labels and therefore all Australian governments have an absolute responsibility to ensure that manufacturers’ meet their legislative obligations in respect of product labelling – regardless of whether that relates to tobacco content, alcohol content, sugar content, fat content and so on”, added Mark.
The motivation of the NSW government appears to be a strong desire to deal with the issue of vapes containing nicotine being accessed by children in the face of rising community concern. This objective is totally supported by ACAPMA, as is the Federal Government’s proposed ban of the importation and sale of vapes other than for therapeutic purposes in the future.
“But advancing ill-considered actions that impose unreasonable obligations on retailers and appear to have no basis in law or regulation, is simply not the answer. While the existing laws impose obligations on retailers to take all reasonable steps not to sell vapes containing nicotine, testing product content is simply not a ‘reasonable’ step”, said Mark.
“The Federal Government must enact legislation banning the importation and sales of vapes other than for therapeutic use – as they announced several months ago – and then all Australian governments must provide the resources needed to ensure that these laws are rigorously and comprehensively enforced”, said Mark.
To do anything less is just paying lip service to the very real community (and industry) concerns about the growing health issues associated with the unacceptable level of child access to vape products in Australia.
ACAPMA is working with the NSW Government to address industry concerns generated by the letter sent out by NSW Health this week. Further, the Association acknowledges that both the Health Minister and the office of the Chief Medical Officer have engaged constructively with us on this issue.
Further information will be provided to members as it comes to hand. Members who continue to receive these letters should email firstname.lastname@example.org or call the Association on 1300 160 270.
Further engagement with the Department is ongoing and are encouraged to reach out to email@example.com with any concerns or commentary.