Vape retailers are ready for new regulations, say campaigners (Image: Tina Tiller)
Vape retailers are ready for new regulations, say campaigners (Image: Tina Tiller)

SocietyApril 4, 2024

How vape brands are outrunning regulation

Vape retailers are ready for new regulations, say campaigners (Image: Tina Tiller)
Vape retailers are ready for new regulations, say campaigners (Image: Tina Tiller)

In the second part of a Spinoff investigation, Stewart Sowman-Lund looks at concerns that banning disposable products may do little to curb the youth vaping epidemic.

Read part one here.

Researcher Lucy Hardie has dedicated much of her academic career to the subject of youth vaping. 

A mother of five teens, Hardie completed her PhD in vape marketing at the end of last year. It’s given her a clear understanding of how vape brands target potential consumers, including young people. And it’s got her worried about what the next generation of New Zealanders may face.

“There’s so much money in nicotine addiction because people are using them constantly,” the University of Auckland researcher told The Spinoff. “You can use vapes in places that you can’t smoke, you can be quite discreet about it. It’s a wonderful product in terms of making a profit.”

The government has recently announced a plan to totally outlaw disposable vapes. It comes after the coalition faced criticism for u-turning on planned anti-smoking legislation that would have progressively hiked the legal purchasing age for tobacco products. Announcing the new vaping regulations last month, associate health minister Casey Costello said that “too many” teenagers used the products. “They’re cheap and remain too easy to get, despite changes under the previous government,” she said. “That’s why these cheap, single use vape products will be banned outright.”

The move has been praised by some health experts, but Hardie isn’t alone in her concerns. She and other anti-vape campaigners believe the vape industry is quicker to adapt than the government is to implement law changes. “They can use strategies to get around whatever regulation has been introduced,” she said.

“I’m really happy that it’s on the agenda at all… [but] despite bringing in regulations in 2020 we’re just finding that it’s becoming more and more of a problem so what we’ve implemented is not enough to control youth vaping and uptake.”

As The Spinoff reported yesterday, some vape retailers have opted to bypass new regulations prohibiting the sale of certain products, in one instance brazenly advertising “non-compliant” products. When asked for comment, Costello acknowledged her concerns, but said that there was always going to be “teething problems” after rolling out major new regulations.

casey costello with big hair and a frown
Casey Costello is responsible for overseeing new vaping regulations (Image: Getty Images)

In announcing the government’s future plans, Costello noted that reusable vaping devices remained a “key smoking cessation device” and would still be available. According to Hardie, that’s the issue. The vape industry is already banking on a reusable vaping future, launching low cost products that provide a legal alternative – and at the same price point as most cheap disposable devices. 

Hardie highlighted a new pod-style vape being sold by one major outlet for just $10. “What the industry has done is shift their focus to reusable vapes which mean they can carry their higher levels of nicotine,” she said. “That’s a much more addictive product and the addiction is really key to continued use and continued profits.”

To reuse that $10 device, it would cost you about $20 for two pre-filled pods. The nicotine strength may be lower (new regulations limit it at 28.5mg/ml), but the price makes it as accessible as the soon-to-be-banned disposable products.

It’s not just the devices but the nicotine juices and the way they’re being sold. Those same March 21 regulations limited the flavour names able to be used, though the industry has quickly found a workaround. Examples are littered across the websites of many vape retailers. Take a vape juice that was previously called “ice cola lime”. Now, it can legally only be named “lime” – but the label contains the note that it’s the “ice cola edition”. The new regulations don’t stop this.

Then, there’s the store-within-a-store loophole. Dairies, now prohibited from selling most vaping products, have created separate mini-outlets in the same premises but with a secondary entrance, some as rudimentary as a plywood box next to the main dairy entrance. It means they can operate as a specialist vape outlet without breaking any rules.

Charyl Robinson, a spokesperson for the lobby group Vape Free Kids, told The Spinoff this ensured attractive vaping products were still visible to young people. “That’s how they can sell all of those really enticing flavours… they look like toys, they smell and taste like lollies,” she said.

Vape Free Kids is made up of five “concerned and despairing mothers” that want to try and influence lawmaking on the issue. The group has similar concerns about the proposed disposable ban, recently telling Newshub it will do little to change the “entrenched” addiction among young people. 

We’ve already seen other examples of how quickly vape outlets can plug the gaps left by new regulations, Robinson told The Spinoff. Rules enforced from December last year required new single-use vapes to come with child safety features. These are now widely available, just months after the restrictions started. “They pivoted very quickly,” said Robinson.

Last week, Robinson and her four fellow campaigners met with Casey Costello at parliament, criticising the associate health minister for delaying plans to require reusable vape devices to have removable batteries. According to Robinson, it will simply give the vape industry more time to adapt and more time to sell products.

The Vape Free Kids group outside parliament (Image: Facebook)

Robinson told The Spinoff that the announced ban on disposable products wasn’t going to be enough to curb vape use, especially among young people. “You could even outright ban the sale of disposable vapes from tomorrow, but they’d still be available everywhere our kids look,” she said.  “There are pod vapes available now that technically meet the definition of a reusable vape… and those are really cheap to come by.”

The tobacco industry was targeting “poly-users”, Robinson said, meaning people who smoked both cigarettes and vapes. “When these products were first introduced they were designed to look like cigarettes to appeal to someone who was a cigarette smoker,” she said. But now retailers were being “really quite overt” in their efforts to attract new nicotine users.

“An ideal customer [for them] is someone who will have their cigarette in the morning at home, then they’ve got the nicotine pouches and vape that they can use out and about or in the office, then in the evening they can use their cigarettes again. They’re trying to attract people to use multiple products.”

The Vuse website, for example, has a “beginner’s guide” to vaping labelled “HOW TO VAPE: 101” which describes various different products and the best way to use them. 

Both Hardie and Robinson believed there were better solutions that the government could be looking at. Hardie said that we could “effectively just roll out all the same things that we do for cigarettes”, adding that some countries had opted to treat vape products the same as tobacco products. That meant the possibility of added tax which would lift prices while still making vapes a cheaper alternative to cigarettes. Robinson said the key was to take the products out of reach from young people. “We’ve got to get them out of those shops our kids are in every day,” she said.

Costello told The Spinoff that the government remained committed to reducing smoking rates in New Zealand and said it would continue strengthening 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,” she said.

Ayesha Verrall, the former Labour health minister, acknowledged the speed in which vaping had become a major health issue. “It went from less than 2% to over 10% of young people being daily vapers between 2021 and 2022, there are very few substances that change so quickly. It does make it incredibly challenging,” she said.

“With alcohol, where I think overall there is reasonable compliance, the threat of losing a license is a good reason for not breaking the law and it doesn’t seem like the balance of enforcement and the scale of the consequences has yet got to where it’s not in the interest of vape retailers to sell these products.”

There’s no set timeframe for the government’s planned disposable vape ban, though it was teased in the coalition’s new quarterly action plan. Pledge number 35 simply reads: “Take decisions to tighten controls on youth vaping.” Late last year, OECD figures showed 8.2% of people aged 15 or older regularly vape in New Zealand, putting us in second place behind just Estonia.

By comparison, an estimated 6.8% of adult New Zealanders are daily smokers.

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