Hong Kong: Regulation & Control Of Electronic Cigarettes & Other New Tobacco Products In Hong Kong

For some years Hong Kong has been moving towards strict regulation of e-cigarettes and related non-tobacco products.

In June 2018 the Legislative Council panel on health services issued a Discussion Paper giving the background of the tobacco control policy of the government as seeking to safeguard public health by discouraging smoking, containing the proliferation of tobacco use and minimizing the impact of the passive smoking on the public.

The Paper records that the multi-pronged approach extending from legislation through publicity, education, smoking cessation services and taxation has reduced the smoking prevalence rate of Hong Kong from 23.3% in early 1982 to 10.0% in 2017.

However, in a sort of counterbalancing movement up when controls on tobacco are moving consumption down the new phenomena of e-cigarettes and related products has been found to be moving up.

At present 13 countries including Singapore, Thailand and Brazil have legislated a complete ban on e-cigarettes.

The Consultation Paper properly addresses the following three principal products :-

1.         E-CIGARETTES

There are two kinds which are :-

1.1       Electronic Nicotine Delivery Systems ("ENDS").

1.2       Electronic Non-Nicotine Delivery Systems ("ENNDS").

Each of these is constituted in a battery-powered device that heats a solution in a cartridge with a metallic coil to deliver an aerosol that users inhale through a mouthpiece in a way that simulates the act of cigarette smoking. 

These related products look like conventional tobacco products but there is a distinction in that the e-liquid solution is a chemical mixture composed of propylene glycol, glycerin, flavorings and other attitudes.

E-cigarettes do not contain tobacco but ENDS do contain nicotine whereas ENNDS do not.

2.         When the propylene glycol and glycerin products are heated they form formaldehyde and related products in the aerosol which are carcinogenetic.  E-cigarettes that contain nicotine are addictive and increase cardiovascular risks.  There is a researched finding that nicotine exposure to a fetus can  adversely affect intra-uterine growth and brain development.

3.         The findings along these lines are vigorously contested by the tobacco industry but the general trend is to counter any such argument where e-cigarettes are concerned because one additional factor apart from possible health impact is perceived strong likelihood that familiarization with the act of smoking even if not with a nicotine product may by association lead young people into conventional cigarette smoking.

4.         The present nicotine content of a e-cigarette makes it a pharmaceutical product which under the Pharmacy and Poisons Ordinance ("PPO") must be registered with the Pharmacy and Poisons Board before they can be sold in Hong Kong.

5.         Additionally, nicotine is a listed Part 1 poison under PPO which can only be legally possessed or sold in accordance with the PPO i.e. by authorised sellers of poisons.

There are financial and imprisonment penalties for illegal possession or sale of unregistered pharmaceutical products or Part 1 poisons.  Although the sale of ENDS is technically illegal, the prohibition has not been enforced.

6.         The government has tested e-cigarettes and the Hong Kong Baptist University has conducted tests all of which show that e-cigarettes are harmful to health.  The general finding is that e-cigarette aerosol is not merely "water vapour" and e-cigarettes are unlikely to be harmless.

7.         Accordingly, the World Health Organization framework convention on tobacco control has invited parties to consider taking measures in accordance with national law to prevent the initiation of ENDS/ENNDS by non-smokers and youth with special attention to vulnerable groups and to minimize as far as possible potential health risks to their users and prevent health claims being made about them which are not proved.

8.         Currently, 83 countries have national/federal laws regulating e-cigarettes.

9.         HEAT-NOT-BURN ("HNB") PRODUCTS

In parallel with the development of e-cigarettes, major tobacco companies have developed tobacco like sticks for insertion into a neutral looking cylinder and so for consumption of real tobacco but using an internal special battery powered cigarette electronic heating device to heat the tobacco up to 35ºC but not to burn – as opposed to the 600ºC which forms the tip of a conventional cigarette.  The perceived intention is that the presence of tobacco in these HNB Products should be more appealing than existing c-cigarettes as an alternative to nicotine products while retaining the addictive effect of nicotine. 

Studies have been made to find that HNB Products contain many harmful substances of a generally carcinogenic nature and all HNB Products tested at the Hong Kong government laboratory in 2017 were found to contain nicotine and tar.

These results show that HNB Products are harmful to health.

There is an additional finding of passive inhalation of HNB Products initions which can have damaging effects on bystanders.

10.       WHO considers that HNB Products are a form of tobacco use which is harmful and that they should be subject to the same regulatory measures as all other tobacco products.

11.       HERBAL CIGARETTES

A third product has become available in the market which look exactly like conventional cigarettes but are made with plants, herbs or fruits with no tobacco.

There is researched evidence showing that even if herbal cigarettes do not contain tobacco or nicotine they may still produce toxic substances and carcinogens.  One leading research report has concluded that DNA damage cause to human lung cells can be as hazardous as smoking conventional cigarettes with the same passive bystander consequences as are communicated by the other products.

12.       The government accordingly proposes a regulatory regime aimed at preventing youth and non-smokers from picking up the smoking habit and to remind smokers and ex-smokers that these new products are harmful.

The proposal is to amend the Smoking (Public Health) Ordinance ("the Smoking Ordinance") to provide for the definition of e-cigarettes, HNB Products and herbal cigarettes suitably adjusting the regulatory regime under the Ordinance not at this stage to ban but to cater specifically to these new products.

13.       The proposed regulatory regime would include the following :-

  1.             prohibition of sale to minors;
  2.            prohibition of advertisement, promotion and sponsorship;
  3.             prohibition of sale unless in retail package bearing health warning;
  4.            prohibition of sale from vending machines;
  5.             a ban on use in no smoking areas;
  6.             relevant explicit health warning labelling requirements, including indication of the presence of tar and nicotine, and a ban on any claims or suggestions that are not backed by scientific evidence;
  7.            a ban on certain additives (such as vitamins) in e-cigarettes which may create an impression that such products have health benefits or present reduced health risks, and any promotion that suggests that the products may contain any appealing flavour; and
  8.            taxation on any tobacco component.

14.       The proposal further notes that the present requirement under the Ordinance to display on packages and retail containers of cigarettes the numerical yields of tar and nicotine together with the new requirement to display descriptive information about the presence of these chemicals and about the emissions of the tobacco product clearly to state the specific potential harm which the consumption of the product concerned may inflict.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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