On 21 March 2024, the second stage of Australia’s vaping reforms bill was introduced before the Australian Parliament. 

The Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024 (“the Bill”) proposes to outlaw the domestic manufacture, sale, supply, commercial possession, and advertising of non-therapeutic and disposable single use vapes in Australia.  Once the legislation commences, tobacconists, vape shops and convenience stores will no longer be able to lawfully supply any type of vape. 

The Bill introduces Chapter 4A into the Therapeutic Goods Act 1989 (Cth).  This chapter addresses offences relating to vaping goods, including vaping accessories, devices and substances.  The Bill proposes the inclusion of the following penalties:

• Importation of vapes (section 41Q): seven years’ imprisonment and fines of up to AU $2.2 million;
• Manufacturing of vaping goods (section 41QA): seven years’ imprisonment and fines of up to AU $2.2 million;
• Supply of vaping goods (section 41QB): seven years’ imprisonment and fines of up to AU $2.2 million;
• Possession of vaping goods (section 41QC):
  • Possession of at least a commercial quantity, but less than 100 times the commercial quantity: two years’  imprisonment and fines of up to AU $440,000:
  • Possession of at least 100 times the commercial quantity, but less than 1,000 times the commercial quantity: four years’ imprisonment and fines of up to AU $1.32 million;
  • Possession of at least 1,000 times the commercial quantity, or more: seven years’ imprisonment and fines of up to AU $2.2 million;

The quantity of vaping goods that comprises a ‘commercial quantity’ is not defined in the draft bill. However, the draft bill states that the quantity of vaping goods which comprises a ‘commercial quantity’ will be prescribed in the Regulations, that are yet to be published.

The severe penalties that are proposed to be introduced are reflective of the concerns that the Australian Government has about recreational vaping in the community, especially with respect to usage by young people.  This is due to the further concerns identified by the House of Representatives, including:

• the existence and strength of the $1 billion black market vape trade in Australia, which is fuelled by the importation of more than 100 million illicit disposable devices each year; 
• concerns that the current prescription-only model for therapeutic vaping goods is failing, with only approximately 10 per cent of vapers purchasing their product legally through prescriptions; and
• insufficient enforcement measures to date.

At the press conference, the Minister for Health and Aged Care, Mark Butler, reiterated that the Bill does not seek to prohibit the use of vapes, but rather returns vapes to the therapeutic goods pathway (rather than being used as a recreational product).  Under the Bill, therapeutic vapes would remain available for patients to access through a pharmacy for smoking cessation or nicotine dependence, on prescription by a medical practitioner.

Earlier this year, the Australian Government commenced the first stage of Australia’s vaping reforms (see our article on the first stage of Australia’s vaping reforms).  These reforms included putting in place an import ban on disposable vapes from 1 January 2024, and an import ban on all non-therapeutic vapes from 1 March 2024.  Since the commencement of these import bans, hundreds of thousands of illegal vapes have been seized by the Australian Border Force at Australia’s national border. The Minister hopes that the two stages of the vaping reforms together can “choke off supply progressively”. In terms of the timeframe, if the Bill is passed, the legislation is expected to commence on 1 July 2024.