PoliticsApril 3, 2024

Vape retailers openly selling banned products after law change


Vapes with appealing flavours were banned on March 21. But as Stewart Sowman-Lund reports, some outlets have continued to sell them – and at reduced prices.

Some vape retailers appear to be openly flouting new regulations first enforced on March 21 by continuing to advertise and sell products that are now outlawed, concerning the minister in charge of the sector.

The new rules, first announced by the Labour administration over a year ago but endorsed by the coalition government, included restrictions on nicotine levels and new requirements for disposable products. 

According to the Ministry of Health, vaping substances – meaning vape juices for reusable devices – that contain nicotine only in salt form must now have no more than 28.5 milligrams of the substance per millilitre. And, also from March 21, retailers were only allowed to sell juices that complied with updated name restrictions – effectively outlawing more appealing or child-friendly flavours.

Vaping retailers were informed of the changes mid-2023 and given six months to sell off stock that would be illegal after March 21. But The Spinoff found more than one vape retailer continuing to advertise and sell products with banned flavour names. 

One online retailer, The Vaping Kiwi, was holding a “non-compliant” vape product sale last week, advertising banned products at reduced prices a week after the regulations came into force. While the sale referenced that the regulations would be in place from March 21, The Spinoff purchased a vape product – “apple acai strawberry” – on March 27. The new regulations state that vape products can only be labelled with one or two flavours from an approved list. “Acai” is not on the approved list of flavours.

After The Spinoff questioned the decision to advertise a “non-compliant” sale, the banner on the store’s website was removed. However, the products were still available if you searched for them. The retailer did not respond to a request for comment.

The ‘non-compliant’ vape sale was still running as of March 27 (Image: Screenshot)

Ayesha Verrall, Labour’s health spokesperson and the former minister that launched the overhaul of vaping rules, laughed when told of the non-compliant vape sale. “That’s unbelievable,” she told The Spinoff. “Those items should be less accessible, in fact not accessible at all – not discounted to incentivise their purchase, for goodness sake.”

It wasn’t an isolated case. At a Shosha store visited by The Spinoff, numerous products with outdated flavours were prominently displayed. The Spinoff purchased a flavour described as “ice cola wild cherry”. The shop assistant said they were unaware of any government regulations limiting the sale of these products.

“Ice”, “cola” and “wild” were all banned descriptors as of March 21. On its website, that same chain of vape stores was marketing the ice cola wild cherry flavour under the now-approved name of just “cherry” – but with the added note that it was the “ice cola edition”. While sneaky, this is within the rules. Shosha did not responded to The Spinoff’s request for comment.

Vape retailers were warned of the new requirements on nicotine strength and flavours in the middle of last year and given a “sell through” period of about six months to get rid of stock. That period ended on March 21. Other new regulations, such as those around reusable vaping products having removable batteries and child safety mechanisms, have been deferred until October, but this did not apply to the rules around nicotine content and labelling.

The Ministry of Health told The Spinoff it was aware of some potentially non-compliant products still being sold. “We are taking compliance action in those instances, which may include an educational approach in the first instance,” a spokesperson said.

There are currently 39 designated Smokefree Enforcement Officers, and The Spinoff was told a further 16 will soon be recruited, five of whom have already been appointed.

Associate health minister Casey Costello, who is responsible for the government’s smokefree initiatives, told The Spinoff she was concerned that some retailers may still be selling banned products. “A week on from the regulations changing, I could understand if there were some teething issues around the adjustment, but that’s not an excuse for ignoring the regulations,” she said. 

“This also points to why we are going to strengthen the regulatory, compliance and enforcement regime around vaping and tobacco sales. We need clear rules around what’s allowed including products, displays and packaging, stronger penalties – especially for sales to under-18s – and an enforcement regime that ensures stiffer penalties and far greater compliance.”

Costello told The Spinoff she had asked the Ministry of Health and Health New Zealand for a “greater focus” on compliance and for regular reporting on their enforcement activity while legislative changes were put in place.

The Ministry of Health urged anyone concerned about non-compliant products being sold to make a complaint.

As RNZ reported last year, fewer than 100 infringement notices had been issued to vape retailers since enforcement of vaping regulations began in 2022. The coalition government has pledged to increase the infringement penalties for vape retailers up to $2,000 for businesses. The maximum fine for retailers caught selling vapes to under-18s is set to increase from $10,000 to $100,000.

Verrall told The Spinoff that she was disappointed to learn some outlets had not been following the rules, and believed it reflected the ongoing challenge to both progress stronger regulations and have them enforced. “The rules are highly publicised and have been the subject of multiple back and forth with the vaping industry and the regulatory authority,” she said. “Industry should know by now what [they have] to comply with.”

The coalition government has pledged to take further action to curb vape rates in New Zealand, particularly among under-18s. This includes a future ban on all disposable vaping products, though a date for this has not been announced.

*An earlier version of this article said the products being sold were also above the new legal nicotine limit. The Ministry of Health rules refer to nicotine, not nicotine salt. We apologise for the error. However, labelling of vape products is often inconsistent and confusing. Subsequent to publication the Ministry of Health told The Spinoff that vape “packaging needs to state the level of nicotine in the product not the level of nicotine salt” and confirmed the Vaping Regulatory Authority would be looking into the products mentioned in this article.

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