4 Sep 2023

Ministry of Health admits incorrectly threatening vape retailers

11:22 am on 4 September 2023
Closeup detail of Female with an Electronic Cigarette, Horizontal shot

Specialist Vape Retailer VAPO | alt. took the Ministry of Health to court in March, on the basis that its interpretation of the smokefree regulations was incorrect and unlawful. Photo: 123RF

The Ministry of Health has admitted it incorrectly threatened vape retailers for selling non-compliant products.

In October 2022, in response to an inquiry from Fair Go, the ministry took the position that the smokefree regulations prescribed a maximum nicotine salt strength of 50mg/mL (28.5mg/mL nicotine strength) and threatened to cancel all products that did not comply.

However, the regulations actually set the maximum nicotine strength limit of 50mg/mL.

Specialist vape retailer VAPO | alt. said its repeated requests to meet with the ministry were refused.

A ministry spokesperson said it was satisfied that it had responded to VAPO's queries and that it was not appropriate to meet, including with regard to its obligations under the World Health Organisation Framework Convention on Tobacco Control, which said: "Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law".

However, VAPO said it has met with the ministry on other occasions and its products do not contain tobacco, which the ministry is aware of, nor has it ever been associated with the tobacco industry.

In March, VAPO took the ministry to court, on the basis that its interpretation of the regulations was incorrect and unlawful.

VAPO director Ben Pryor was concerned the misinterpretation would adversely impact the health of people who relied on 50mg/mL nicotine products to abstain from smoking.

In August, the ministry confirmed that VAPO's interpretation of the regulations was correct, conceded the proceeding, and the Court made a declaration in favour of VAPO.

The ministry said it conceded the case because it acknowledged that there were discrepancies in the way limits on nicotine had been described in ministry documents including the ministry's consultation paper dated January 2021.

The ministry accepted that it could be interpreted that the maximum permitted nicotine concentration in nicotine salt vaping substances to be 50mg/mL rather than the ministry's position that it was 26-36mg/mL (depending on the type of salt).

The government has since amended the regulations to lower the maximum nicotine strength to 28.5 mg/mL from 21 March 2024.

Whether the ministry is able to lawfully reduce the limit is currently before the Court.

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