Is Vaping a Criminal Offence in New South Wales?

Australian laws that apply to e-cigarettes, commonly known as ‘vapes’, have undergone significant change in recent times, leaving users understandably confused about whether their favourite habit is still legal in the country.

And while it’s true the regulation of vapes has been tightening, culminating in the prohibition on the importation of all single-use e-cigarettes regardless of whether or not they contain nicotine, the bottom line is that the simple act of vaping remains legal across the nation.

That said, the law in the area is indeed quite convoluted and complex, with several pieces of both Commonwealth and State legislation applying.

These laws prohibit a number of acts relating to vaping, including manufacturing or supplying a vape without the required approvals.

And there are more laws on the horizon, which it is important for users to be aware of.

So, here’s a rundown of the current and forthcoming laws that apply to vaping products.

Vapes: the road to regulation

The regulation of vapes in Australia commenced more than three years ago as a response to the potentially harmful effects of unregulated products being sold under the table.

The first major change in vaping regulation came into effect on 1 October 2021, which made vaping products which contain nicotine (as well as nicotine ‘juice’) a prescription-only medicine. This means that only pharmacies can supply vaping products that contain nicotine, and it is illegal to get these products from local tobacco or other retailers.

More recent legal changes in 2023 have substantially restricted the type of vaping products accessible to consumers as well as the mentioned crackdown on vaping imports.

As of  1 January 2024, disposable vapes  (whether or not they contain nicotine) have become prohibited products. This means that you will not be able to purchase a disposable vape from a retailer or import one from overseas, even if you have a prescription from your doctor.

The Therapeutics Goods Administration defines disposal vapes as products ‘that are pre-filled with a vaping product, cannot be refilled and are disposed of once the battery or vaping product runs out’. These products are banned throughout Australia.

Further changes are set to come into effect on 1 March 2024, and include major restricts on the importation of vaping products.

From March this year:

• the importation of reusable vapes, irrespective of nicotine content or therapeutic claims, will be banned, unless an import licence and permit is obtained.
• the importation of all vapes under the personal importation scheme will end. Patients will no longer be able to order any vapes, including reusable vapes, directly from overseas, even if they have a prescription.
• travellers entering Australia will be banned from bringing vapes into the country, other than for their treatment or the treatment of someone they are caring for, subject to very strict quantity limits.

These reforms heavily restrict the availability of both nicotine-containing and general vaping products, throughout Australia. Once in full effect, consumers will be limited to access vaping products via their doctor and a valid prescription.

Is it a crime to import prohibited vapes into Australia?

It may be tempting to flout these laws and access your vaping product of choice by importing it from overseas. However, this is a criminal offence which carries harsh penalties.

A number of offences could be committed by importing prohibited vaping products into Australia. These prohibited vaping products currently include:

• Nicotine containing vaping products;
• Nicotine ‘juice’; and
• Disposable vaping products.

However, as of 1 March 2024, all vaping products including reusable vaping devices (whether or not they contain nicotine) will be prohibited imports into Australia.

Section 9L of the Therapeutic Goods Act 1989 (Cth) makes it an offence to import, as well as to export, manufacture or supply a prohibited therapeutic good. This offence carries a maximum penalty of $93,900 with harsher penalties apply to corporations importing prohibited therapeutic goods for sale.

Similarly, section 233 of the Customs Act 1901 (Cth) outlines an offence where a person:

• Smuggles any goods; or
• Imports any prohibited imports; or
• Exports any prohibited exports; or
• Unlawfully conveys or has in his or her possession any smuggled goods or prohibited imports or prohibited exports.

The maximum penalty for importing or dealing with a prohibited import under this section is a fine of up to three times the value of the goods, or up to $275,000 (whichever is greater).

Vaping products may also constitute a ‘tier 1 good’ under section 233BAA of the Act which applies to non-narcotic drugs intentionally imported contrary to the Customs Act. This offence carries a maximum penalty of 5 years imprisonment, or a fine of $275,000 or both.

I’m travelling to Australia, can I bring my vape?

Good news for tourists. A traveller’s exemption under the recent legal changes allowing a person to bring prohibited vaping products into the country whilst visiting, however strict quantity limits apply. The maximum allowable quantity is:

• 2 vapes,
• 20 vape accessories (including cartridges, capsules or pods), and
• 200mL of vape substance in liquid form.

So, is it illegal to vape in New South Wales?

Despite the above restrictions, there is no explicit criminal offence related to the use or possession of vapes.

There are, however, substantial restrictions on where a person can use a vaping product in NSW, as they cannot be used in ‘smoke-free areas’.  Smoke-free areas include:

• all indoor public places
• outdoor public places:
  • within 10 metres of children’s play equipment in outdoor public places
  • public swimming pools
  • spectator areas at sports grounds or other recreational areas used for organised sporting events
  • public transport stops and platforms, including ferry wharves and taxi ranks
  • within 4 metres of a pedestrian access point to a public building
  • commercial outdoor dining areas
• in a car with a child under 16 years of age in the vehicle
• on public transport vehicles such as trains, buses, light rail, ferries is also banned under the Passenger Transport (General) Regulation 2017.

Vaping within a smoke-free area will result in an on-the-spot fine of $300.

Going to court over a vaping offence?

If you are you going to court to contest a vaping offence, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will assess the case, advise you of your options and the best way forward, and fight for the optimal outcome.