Battery powered vaporisors that mimic the effect of smoking have been steadily rising in popularity. The devices heat a liquid, producing a vapour that the user then ‘smokes’ by inhaling and exhaling. Many users utilise the devices to assist in quitting smoking, but that is not the devices sole purpose.
The industry has faced many issues as it struggles to comply with tobacco control laws across Australia.
Recently courts in Western Australia were asked to determine whether the sale of these electronic cigarettes were illegal. The Tobacco Products Control Act 2006 (WA) prohibits the sale of things that mirror a tobacco product. In 2011 authorities raided HeavenlyVapours, a company producing electronic cigarettes for sale in Western Australia. Investigators seized 9 atomisers and 60 packages of electronic cigarettes. The case was brought before the Magistrates court and dismissed, finding that there was insufficient evidence that would suggest that an electronic cigarette looks anything like a traditional cigarette or cigar, for the purpose of the Act.
In April however the Supreme Court ruled on an appeal by the WA Health Department. The Court ruled in favour of the Department, finding that a tobacco product is mimicked or mirrored if the product includes a hand to mouth action that results in the expulsion of vapour.
Whilst a decision by the Supreme Court of Western Australia is not binding on the courts of other states, it can be highly persuasive. Its potential value as precedent is increased when you consider the similarity of tobacco control laws in New South Wales, Queensland and South Australia, which all contain provisions similar to the Western Australian law.
This decision may still be appealed by HeavenlyVapours, but if the law holds it could have wide ranging consequences to retailers throughout Australia.