KEY TAKEAWAYS
Since 1 October 2021, all nicotine vaping products are prescription only medicines across all Australian States and Territories. It is illegal to import, buy or sell vape or e-liquid without a valid permit or prescription. Heavy penalties, including fines and imprisonments apply. This articles outlines the laws around vaping and electronic cigarettes in Australia.
Despite 1 in 10 smokers utilising vape devices or 'e-cigarettes' to smoke, it would surprise many Australians to know that a doctor's prescription is required to purchase nicotine vaping products.
Electronic cigarettes, also known as 'e-cigarettes' or 'vapes' heat liquid, which usually contains nicotine, into vapour, which is inhaled.
For specific tailored advice, speak to our criminal lawyers Sydney team.
IS IT ILLEGAL TO IMPORT VAPE, E-LIQUID OR ELECTRONIC CIGARETTES INTO AUSTRALIA?
On 1 October 2021, the definition of nicotine in Schedule 4 of the Poisons Standard, was amended to include all nicotine vaping products as prescription only medicines.
This means that it is illegal for consumers to import vaping products, including by purchasing from an overseas website, without a valid prescription from an Australian doctor.
The Australian Border Force now has the power to intercept packages of nicotine vapes, nicotine pods and liquid nicotine.
Any imports which are not supported by a valid prescription, or which are in excess of the prescribed amount, may be assessed by the TGA to be unlawful under the Therapeutic Goods Act 1989 (Cth).
The products can thus be seized as prohibited imports under the Customs Act 1901 (Cth).
Importing, attempting to import, and possessing nicotine vaping products, without a prescription, classifies them as a 'prohibited import'.
A maximum penalty of a $222,000 fine is applicable, as per section 50 of the Customs Act 1901 (Cth).
Consumers with a prescription are able to legally import e-cigarettes containing vaporiser nicotine from overseas to aide in smoking cessation, in accordance with the Therapeutic Goods Administration (TGA) Personal Importation Scheme.
Under the scheme, patients can order a maximum of three months' supply at one time and a maximum of 15 months' supply in a 12-month period, for personal use.
Alternatively, patients with valid prescriptions may purchase the products at an Australian pharmacy.
The Federal Government and the Therapeutic Goods Administration justified the change based on the significant increase in the use of nicotine e-cigarettes and other nicotine vaping products by young people, and the associated health dangers.
The amendments to importation legislation bring Commonwealth legislation in line with the states and territories, noting it is illegal to sell e-cigarettes containing vaporiser nicotine across the country.
The absence of penalties for importing nicotine vaping products from overseas, without a prescription, previously presented a 'loophole'.
Across Australia, it was and remains illegal for retailers, including tobacconists, vape shops and convenience stores, to sell nicotine vaping products to consumers, even if they have a valid doctor's prescription.
Here is more on the offences of importing prohibited drugs into Australia.
IS IT ILLEGAL TO BUY OR SELL VAPE, E-LIQUID OR ELECTRONIC CIGARETTES IN AUSTRALIA?
The below explains the laws and penalties for buying e-liquid online in Australia illegally. Let's delve into the laws in each of Australia's States and Territories concerning the legality of vapes, e-liquid and e-cigarettes.
Vaping, E-Cigarettes and E-Liquid in New South Wales
In NSW, substances contained within Schedule 4 of the Poisons List are considered 'restricted substances' pursuant to Poisons and Therapeutic Goods Act 1966 (NSW).
It is an offence to attempt to obtain, or have a restricted substance, such as nicotine vaping liquid, in one's possession without a prescription.
The maximum penalty applicable for a restricted substance, such as nicotine vaping liquid, is a $2,200 fine and/or 6 months imprisonment, pursuant to section 16.
It is illegal for retailers, other than pharmacies, to sell e-cigarettes or e-liquids that contain nicotine, as per section 9.
A maximum penalty of a $1,650 fine and/or 6 months imprisonment is applicable.
Offences are also applicable under the Public Health (Tobacco) Act 2008 (NSW).
It is illegal to sell e-cigarettes or e-cigarette accessories to a person under 18 years of age, pursuant to section 22.
In the case of an individual, a maximum penalty of an $11,000 fine is applicable for a first offence, whereas a $55,000 fine is applicable for a second or subsequent offence.
In the case of a corporation, a $55,000 fine is applicable for a first offence, whereas a $110,000 fine is applicable for a second or subsequent offence.
NSW Health inspectors are able to seize and destroy nicotine vaping products, as well as prosecute retailers.
Inspectors undertake compliance and enforcement action and visit tobacco and vaping retailers to check if products containing liquid nicotine are being sold, including to people under 18 years of age.
Since the beginning of 2022, NSW Health has seized more than $1 million worth of e-cigarettes and liquids containing nicotine.
This figure contributes to the $3 million worth of illegal vaping products seized in NSW, since July 2020.
Vaping, E-Cigarettes and E-Liquid in Victoria
In Victoria, it is illegal to sell, possess or use liquid containing nicotine in an e-cigarette, without a prescription.
Substances contacted within Schedule 4 of the Poisons List are considered a 'poison or controlled substance', as outlined in the Drugs, Poisons and Controlled Substances Act 1981 (VIC).
It is an offence to possess nicotine vaping liquid, without authorization such as a prescription, pursuant to section 36B(2).
A maximum penalty of $1,817.40 is applicable.
The Drugs, Poisons and Controlled Substances Regulations 2017 (VIC) prohibits the sale of nicotine vaping liquid, without authorisation.
A maximum penalty of a $18,174 fine is applicable.
It is an offence to sell e-cigarettes to any person aged under 18 years whether or not the e-cigarettes contain nicotine, pursuant to section 12 of the Tobacco Act 1987 (VIC).
A maximum penalty of a $21,808.80 fine is applicable for an individual, or a $109,044 fine for a corporation.
Buying e-cigarettes products for the use of a person aged under 18 years carries a maximum penalty of $3,634.80 for an individual, and $18,174 for a corporation.
Vaping, E-Cigarettes and E-Liquid in Queensland
In Queensland, it is prohibited to purchase, possess nicotine vaping liquid without a prescription, or to sell or supply, without lawful authority.
Substances contacted within Schedule 4 of the Poisons List are considered a 's4 medicine' as outlined in the Medicines and Poisons Act 2019 (QLD).
A person who buys or possesses nicotine vaping liquid, without a prescription or reasonable excuse, faces a maximum penalty of a $27,570 fine, pursuant to section 34.
As per section 35, it is an offence to supply or nicotine vaping liquid, without authorisation or a reasonable excuse.
A maximum penalty of a $68,925 fine is applicable, as outlined in section 35.
A supplier must not sell or provide, or let their employees sell or provide, e-cigarettes or accessories to any person aged under 18 years, pursuant to sections 10 and 11 of the Tobacco and Other Smoking Products Act 1998 (QLD).
A maximum penalty of a $19,299 fine is applicable for a first offence, $38,598 for a second offence, and $57,897 for a third or later offence.
Suppliers can be banned from selling all or stated smoking products by the court, if found guilty.
A supplier will not be taken to have committed an offence if they took prevention measures to ensure thar employees would not supply such products to a child.
Where a supplier has taken such preventative measures, and the employee persists to supply prohibited products to children, the employee faces maximum penalties of a $2,757 fine for a first offence or a $5,514 fine for a second or later offence.
Vaping, E-Cigarettes and E-Liquid in ACT
It is illegal to purchase, sell and possess nicotine vaping liquid in the ACT, without a prescription or lawful authority.
Supplying vaping products containing nicotine, without authorisation, carries a maximum penalty of an $80,000 fine and/or 5 years imprisonment, pursuant to section 26 of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT).
A maximum penalty of a $405,000 fine is applicable for a corporation.
Possessing nicotine vaping liquid, without having authorisation to, carries a maximum penalty of a $32,000 fine and/or 2 years imprisonment, as per section 36.
E-cigarette devices and liquids that don't contain nicotine can be sold and bought in the ACT, but only through retailers which hold a tobacco licence.
Pursuant to section 14 of the Tobacco and Other Smoking Products Act 1927 (ACT), it is an offence to supply a smoking product to a person who is under 18 years old.
This includes devices, and liquids that don't contain nicotine.
A maximum penalty of a $32,000 fine is applicable for an individual, and a $162,000 fine is applicable for a corporation.
A defence may be provided where identification was shown to the supplier, and the seller had no reasonable grounds for believing that the document was not genuine.
Purchasing an e-cigarette or liquid, on behalf of someone under 18 years old carries a maximum penalty of a $8,000 fine.
Vaping, E-Cigarettes and E-Liquid in South Australia
In South Australia, it is illegal to sell nicotine vaping liquid or possess it, without a prescription, as outlined in the Controlled Substances Act 1984 (SA).
A maximum penalty of $10,000 applies for those who use, sell, supply, prescribe, or purchase nicotine vaping liquid, without proper authorisation, as per section 27.
As across Australian jurisdictions, it is permissible for retailers to sell e-cigarettes without nicotine.
However, it is an offence under section 38A of the Tobacco and E-Cigarette Products Act 1997 (SA), to sell or supply e-cigarette products to a person under the age of 18 years.
A maximum penalty for a proprietor of a business is a $20,000 fine for a first offence and up to $40,000 for a second and subsequent offence.
In any other case, such as an individual vendor, the maximum penalty is a $5,000 fine.
The fine amounts for these sections were recently increased, with the state government aiming to reduce the likelihood of children accessing e-cigarette devices.
Vaping, E-Cigarettes and E-Liquid in Western Australia
In Western Australia, it is illegal to sell, supply or possess an e-cigarette or any liquid that contains nicotine, without a doctor's prescription.
As per section 14(1) of the Medicines and Poisons Act 2014 (WA), a person commits an offence if they supply nicotine vaping liquid, without authorisation.
Section 14(4) criminalises possession, without proper authorisation, such as a prescription.
A maximum penalty of a $45,000 fine is applicable to these offences, as per section 115.
Western Australian retailers are unable to sell e-cigarettes, even without nicotine, in accordance with the Tobacco Products Control Act 2006 (WA).
As per section 106, must not sell any food, toy or other product that is not a tobacco product but is designed to resemble one.
A decision by the Court of Appeal of the Supreme Court of Western Australia in 2016 confirmed that this includes e-cigarettes that do not contain nicotine.
The maximum penalty applicable for selling such products for an individual is a $10,00 fine for a first offence, and a $20,000 fine for a second or subsequent offence.
For a corporation, a maximum penalty of $40,000 is applicable for a first offence, and $80,000 for a second or subsequent offence.
The Western Australian Health Department has seized more than 16,000 nicotine vaping products over the past three years.
Vaping, E-Cigarettes and E-Liquid in Northern Territory
In the Northern Territory, it is illegal to sell, supply or possess an e-cigarette or any liquid that contains nicotine, without a doctor's prescription.
Using or possessing nicotine vaping liquid, without a doctor's prescription, carries a maximum penalty of a $15,700 fine or 12 months imprisonment, as per section 39 of the Medicines, Poisons and Therapeutic Goods Act 2012 (NT).
Supplying nicotine vaping liquid, without registration as a pharmacy, carries a maximum penalty of a $31,400 fine or 2-years imprisonment.
The Northern Territory has the highest rates of cigarette smoking in Australia, with many advocates arguing that more lenient vaping laws could help aide this issue.
Nonetheless, adults are able to purchase e-cigarette products that do not contain nicotine, without a prescription.
It is an offence to sell an e-cigarette product to a person under 18 years of age, as per section 42 of the Tobacco Control Act 2002 (NT).
A maximum penalty of a $31,400 fine is applicable.
Supplying, offering to supply, or gifting or buying for a person under 18 years of age, also carries the same maximum penalty, as per section 43.
Vaping, E-Cigarettes and E-Liquid in Tasmania
Whilst the Tasmanian Health Department 'strongly advises' against the use of nicotine vaping, it is permissible with a prescription.
Tasmania is the only national jurisdiction that requires pharmacies to hold a license to stock nicotine vaping products.
Schedule 4 substances are referred to as 'restricted substances' as per the Poisons Act 1971 (TAS).
It is illegal for a person to have a nicotine vaping product in ones' possession, without a prescription, as per section 36.
A maximum penalty of a $6,850 fine or 2-years imprisonment is applicable.
Furthermore, a person must not sell or supply nicotine vaping liquid, unless authorised to, as outlined in section 26, which provides a maximum penalty of a $2,740 fine.
E-cigarettes without nicotine are legal in Tasmania, however, businesses must retain a 'smoking product licence'.
The sale of e-cigarettes and related accessories is illegal to those under 18 years of age, as per section 64 of the Public Health Act 1997 (TAS).
The maximum penalties applicable include a $20,760 fine for a first offence, a $41,520 fine for a second offence and a $62,280 fine for a third and subsequent offence.
