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Offences Involving Vaping or Smoking (NSW)

In the last few years, more and more people have joined the vape craze. Heralded as a healthier alternative to cigarettes, vapes or ‘e-cigarettes’ have become increasingly popular, particularly amongst young people. However, the health impacts of e-cigarettes are not widely known, and research is ongoing into the long-term health effects of vape use. Of particular concern is the risk that vaping by young people will act as a ‘gateway’ to smoking. As a result, new laws have been introduced to limit the availability of nicotine in vapes. This article outlines those laws and the various offences involving smoking and vaping that exist in NSW.

Changes To The Law From October 2021

Nicotine is currently listed as a ‘schedule 4’ substance under the Poisons Standard October 2021. The Poisons Standard is a Commonwealth (federal) legislative instrument that lists all of the different classifications of medicines and poisons. What this means is that when there Is a change to the classification of any substance listed under the Poisons Standard at a federal level, the laws in each State or Territory are also subject to change.

In relation to nicotine, the classification under the Poisons Standard changed, and as of 1 October 2021, nicotine preparations will be classified as a schedule 4 substance (that is, a substance that is available on prescription only) unless:

  1. they are for use in preparations for oromucosal (for example nicotine gum) or transdermal administration (nicotine patches etc) for human therapeutic use as an aid in withdrawal from tobacco smoking; or
  2. they are in tobacco prepared and packed for smoking.

What this means is that as liquid nicotine-containing vapes and e-cigarettes do not fall into either of the above exceptions, the use of liquid nicotine in vapes is illegal

How These Changes Affect NSW Law

In NSW the access, control and prohibition of certain poisons, restricted substances, drugs of addiction and other therapeutic goods is governed by the Poisons and Therapeutic Goods Act and the Poisons and Therapeutic Goods Regulation.

Prior to 1 October 2021, it was illegal in NSW to purchase e-cigarettes containing nicotine.

However, the difference between Commonwealth (federal) legislation and NSW legislation prior to 1 October 2021 meant that whilst residents in NSW were unable to sell or purchase liquid nicotine and e-cigarettes containing nicotine domestically, they were able to import the substance from overseas.

The change in federal legislation has now closed this loophole and access to liquid nicotine and e-cigarettes containing nicotine is now restricted to individuals with valid medical prescriptions.

Offences involving vaping or smoking: possessing liquid nicotine

Anyone who continues to possess liquid nicotine or nicotine-containing e-cigarettes and does not have a prescription may be committing an offence under NSW law. The offence of possess prescribed restricted substance under section 16 of the Poisons and Therapeutic Goods Act carries a maximum penalty of a fine of $2,200 and/or imprisonment for 6 months.

What are the other offences involving vaping or smoking?

Whilst it is illegal to possess nicotine vapes without a prescription, vapes that do not contain nicotine were and continue to be legal in NSW.

However, because of the difference between normal cigarettes and e-cigarettes, it is often easy to forget that vapes or e-cigarettes are subject to strict legislative provisions surrounding use. If you intend to use or do use vapes it is important to understand the laws that govern their use and purchase.

The laws that apply to tobacco cigarettes under the Poisons and Therapeutic Goods Regulation, are also applicable to e-cigarettes or vapes.

Sale of e-cigarettes to minors

It is illegal to sell e-cigarettes to persons under 18 years of age or to purchase e-cigarettes on behalf of a person 18 years of age. If you are caught purchasing vapes or e-cigarettes on behalf of a person who is under 18 years of age, you risk being charged with an offence under section 23 of Public Health (Tobacco) Act which carries a maximum penalty upon conviction of a fine of $2,200.

Smoking in the car with children present

It is illegal to use or smoke e-cigarettes while in a car with children under 16 years of age. Using a vape whilst in a vehicle with children under the age of 16 can result in police issuing you with a penalty notice of $250. Alternatively, police can charge you with an offence that carries a maximum penalty upon conviction of a fine of $1,100 under section 30 of the Public Health (Tobacco) Act.

Furthermore, should a passenger in a vehicle be caught using or smoking a vape in a car with children under 16, the driver will also be held liable for the offence and will be subject to the same penalties listed above.

Vaping in non-smoking areas

It is illegal to use or smoke vapes in non-smoking areas including in offices, on public transport, in restaurants or near children’s play areas. If you are caught using a vape on public transport or in an office building, or anywhere that smoking is prohibited, you are at risk of being issued with a penalty notice for $300 or being charged with an offence punishable by a maximum penalty upon conviction of a fine of $550.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Cara Maynard - Senior Associate – Canberra

This article was written by Cara Maynard - Senior Associate – Canberra

Before joining the team at Armstrong Legal, Cara worked as a DNA expert preparing and giving DNA evidence in criminal trials. In this role she liaised with police, DPP and defence practitioner regarding a variety of matters including DNA transfer, deposition and recovery. Cara has reviewed and interpreted thousands of DNA profiles that were reported as intelligence to the NSW...

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