On the Case: Issue 5

Landmark Decision on The Sale of Electronic Cigarettes without Nicotine in Western Australia

In this fifth edition of On the Case Marilyn Krawitz, a lecturer at the University of Notre Dame Australia, Fremantle Campus and a practising lawyer, discusses a landmark Western Australian case regarding the sale of Electronic Cigarettes (E-cigarettes) without nicotine.

Introduction

E-cigarettes contain a tube, battery and a solution. When a person uses an E-cigarette, the solution becomes a vapour that they inhale. The solution may contain nicotine or non-nicotine flavours.¹ People who use E-cigarettes find that it feels similar to using traditional cigarettes.² E-cigarettes do not have tar or many of the toxins found in traditional cigarettes. Consequently, some experts believe that using E-cigarettes is not as harmful to people’s health as smoking traditional cigarettes.³ Hawkins v Van Heerden [2014] WASC 127 is a recent landmark decision about the sale of E-cigarettes without nicotine in Western Australia.

In brief

This case appears to set a precedent that selling E-cigarettes without nicotine is illegal in Western Australia.

The facts

In December 2011, the appellant, a compliance officer with the Department of Health, seized various items from the respondent’s house that he sold in his online store. Some of the items were: 60 E-cigarettes and E-cigarette solution (without nicotine).⁴ The respondent was charged with breaching s 106(a) of the Tobacco Products Control Act 2006 (WA), which states that ‘a person must not sell any food, toy or other product that is not a tobacco product but is (a) designed to resemble a tobacco product’. ⁵

The respondent entered a plea of not guilty. He was acquitted after a trial. The Magistrate decided that E-cigarettes were not ‘designed to resemble a tobacco product’.

This case – the Appeal

On appeal Pritchard J stated that when the Magistrate decided that the E-cigarettes were not ‘designed to resemble a tobacco product’, she only considered E-cigarette’s physical appearance.⁶ Her Honour decided that whilst physical appearance should be considered, other factors should also be taken into account, such as whether E-cigarettes have ‘features in common with’ a tobacco product⁷ and whether people use them similarly. ⁸ Her Honour stated that E-cigarettes are ‘designed to resemble a tobacco product’ because they permit a user to inhale vapour. This is similar to inhaling smoke from a traditional cigarette. She also considered the manufacturer’s description, the E-cigarette’s appearance and the respondent’s submissions.⁹

Her Honour added that the Magistrate did not consider certain relevant evidence, such as information in a Statement of Admitted Facts. The Statement of Admitted Facts listed an E-cigarette’s parts and how to use them.¹⁰

Her Honour set aside the Magistrate’s decision and convicted the respondent.¹¹

Why this case is important

This case appears to set a precedent that selling E-cigarettes without nicotine is illegal in Western Australia. It may also be illegal to sell E-cigarettes without nicotine in Queensland as, in that State, it is also an offence to sell an item that is ‘not a tobacco product but resembles a tobacco product’.¹² The Governments of other States may consider amending their smoking legislation to make selling E-cigarettes without nicotine illegal. If people cannot sell E-cigarettes without nicotine in certain States, then Australians may increase the amount of E-cigarettes without nicotine that they import from overseas and further reform may be required if this practice is to be prevented.

¹ E Sutfin et al, ‘Electronic Cigarette Use by College Students’ (2013) 131(3) Drug and Alcohol Dependence 214, 214.

² Ibid.

³ L E Odum,  K A O’Dell and JS Schepers, ‘Electronic Cigarettes: Do They Have a Role in Smoking Cessation?’ (2012) 25(6) Journal of Pharmacy Practice 611, 611.

⁴ Hawkins v Van Heerden [2014] WASC 127, at [6] and [14].

⁵ At [1].

⁶ At [34].

⁷ At [39].

⁸ At [40].

⁹ At [87].

¹⁰ At [62], [63].

¹¹ At [89].

¹² Tobacco and other Smoking Products Act 1998 (Qld) s 26ZS(1).