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vape shops oftenuse colourful packaging and marketing which is shown in the picture
A vape store display in the US (Photo: Getty Images. Design: Archi Banal)

SocietyOctober 10, 2022

Steep nationwide rise in vape stores fuelling a youth vaping ‘epidemic’

vape shops oftenuse colourful packaging and marketing which is shown in the picture
A vape store display in the US (Photo: Getty Images. Design: Archi Banal)

A 40% increase in the number of specialty vape stores is fueling what advocates maintain is an epidemic of youth vaping, reports Don Rowe.

In February of this year there were 666 registered vape retailers in Aotearoa. Today that number has reached more than 950. Letitia Harding, the Asthma and Respiratory Foundation’s chief executive, says the booming market is outstripping growth in other areas traditionally considered a public health concern.

“To put that into perspective there is a combined total of 267 KFCs and McDonald’s restaurants across New Zealand. We are hearing firsthand from communities who are saying they are sick and tired of vape stores popping up all over the place, with their products showcased in store front windows.”

Under existing legislation, only specialty vape stores are able to sell flavoured juices and disposable vaping devices, with dairies and service stations limited to tobacco or mint flavours less appealing to young non-smokers. But Harding says retailers are exploiting ambiguous regulations by partitioning existing premises into two separate stores. Research from September last year found that around 15% of specialty vape stores are such conversions.

“This is a loophole that many retailers have been using to enable them to sell more vape products. And as far as people going in and checking their registration and so on, we’re not seeing it.”

Jonette Bartlett at her vape store B’arch Wear in Dargaville. (Photo: RNZ / Katie Todd)

There is widespread alarm at the density of retailers. In Dargaville, local health agencies identified 15 retailers within a 1km radius, reported RNZ. Kaipara District Mayor Jason Smith said the council was concerned about a lack of national guidelines to control the “epidemic”. In April, vape retailer Shosha opened its 100th store, becoming one of New Zealand’s largest retailers. Globally, the vape industry is set to reach $43b USD by 2023.

Harding says the proliferation is directly linked to the number of young non-smokers developing potent nicotine addictions. And researchers from the Australian National University, reviewing almost 200 international studies, found that non-smoking vapers are up to three times as likely to start smoking than those who don’t vape. In Australia, liquid nicotine is prescription-only.

According to the Ministry of Health’s most recent New Zealand Health Survey, the number of New Zealanders aged between 15 and 17 who vape daily tripled from 2 to 6% between 2018 and 2021, while those aged 18 to 24 grew from 5 to 15%.

An Action for Smokefree 2025 (ASH) survey found almost one in five Māori girls aged 14 to 15 reported vaping daily in 2021, and the number of Māori boys who vape at least once a month grew from 19% in 2019 to 30% in 2021.

A smoker is engulfed by vapours as he smokes an electronic vaping machine during his lunchtime. (Photo: AFP PHOTO / Tolga / Getty Images

Harding says the Asthma and Respiratory Foundation (ARF) regularly hears from parents concerned their teenagers are so heavily addicted they get up during the night to vape, or take their devices with them to the shower. Some schools are beginning to install detectors in the bathrooms, says Harding, and are confiscating up to 20 devices a week. And teenagers over 18 who have purchased nicotine-free vape products online have been sent complementary nicotine products by vape retailers.

“It’s like big tobacco always said: they’re not in the business of cigarettes, they’re in the business of nicotine, because that’s what keeps people coming back.”

Proponents point to vaping’s lack of harm compared to cigarettes, and the efficacy of vaping in smoking cessation. But research by Janet Hoek, professor of public health at the University of Otago, and Lindsay Robertson, senior research fellow in the department of preventive and social medicine, found the increase in youth vaping exceeds the decline in smoking, meaning there is a net gain in the number of young people using nicotine products.

The research was conducted before the rise in cheap disposable vaping products, which often contain levels of nicotine as high as 60mg/ml. A direct comparison to cigarettes is difficult due to the wide range of devices and vaping products, but one study indicated a 50mg pod delivers the equivalent nicotine of a packet of cigarettes. In the European Union, vaping products are limited to a maximum of 20mg/ml. Disposable vapes have also been criticised for creating environmental harm as thousands of depleted lithium batteries are sent to landfill or discarded in the street.

Harding says the Smokefree Environments and Regulated Products Amendment Bill, currently at the select committee stage, is an opportunity to introduce controls on the nicotine content of vape products, and to prevent streetfront displays of sleek, colourful vape devices. The aesthetics of vape products are in stark contrast to the grisly corpses and diseased lungs of cigarette packaging – all sleek surfaces, tropical fruits, candyfloss clouds. Healthcare professionals advising the ARF hope to see that banned.

Dr Stuart Jones, respiratory consultant and advisor on the ARF’s scientific advisory board, says the bill is a “game-changer” for addressing the harm caused by cigarettes, but that it must also curb the growing numbers of young people taking up vaping.

“We already have far too many of our youth addicted to nicotine from the use of vaping products. We cannot wait another few years for better regulations around Ends (Electronic Nicotine Delivery System) products, as the scale of this problem will only continue to grow. We need to get the nicotine content in vaping products reduced as a matter of urgency. We need to get the retailers out from our school surroundings. And we need better policing of these retailers.”

This is Public Interest Journalism funded through NZ On Air.

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Peter Ellis ((Photo: Paddy Dillon/Getty Images, additional design Archi Banal)
Peter Ellis ((Photo: Paddy Dillon/Getty Images, additional design Archi Banal)

SocietyOctober 7, 2022

Peter Ellis has his name cleared: child abuse convictions posthumously quashed

Peter Ellis ((Photo: Paddy Dillon/Getty Images, additional design Archi Banal)
Peter Ellis ((Photo: Paddy Dillon/Getty Images, additional design Archi Banal)

One of the most important judgments in New Zealand legal history has today been delivered. Its implications are huge.

Two years after he died, and almost 30 years since first convicted, Peter Ellis has today had his name cleared and all convictions overturned. 

It brings to an end one of the most scrutinised and publicised cases in New Zealand jurisprudence – and the legal and moral ripples will be felt for years.

So what just happened?

In a 152-page ruling released this afternoon, New Zealand’s highest court, the Supreme Court, has unanimously agreed to quash all of Ellis’s 1993 convictions for child sexual abuse. 

“We have found that the evidence before the jury in relation to both [section] 23G of the 1908 Act [the now outdated legislation dealing with evidence] and contamination was incorrect or misleading and, in the case of the former, some of it should not have been admitted,” ruled the court. “Those two issues are the principal focus of the judgment. Having addressed all the issues raised with us, we have stood back and considered the case in the round. We have concluded that a miscarriage of justice has occurred and accordingly we allow the appeal and quash the appellant’s convictions.”

Where did this all begin?

This lengthy legal battle started back in 1991 when Ellis was first accused of abusing children at the Christchurch Civic Childcare Centre, where he had been a teacher. Ellis was popular with both children and parents at the creche during his time as a teacher.

In 1993, Ellis was convicted of 16 counts of sexual offending against seven children who had been in Ellis’s care at the childcare centre. 

A year later, in 1994, he went to the Court of Appeal in an effort to have his sentence dismissed. The court upheld his sentence, though quashed three of the charges. It is those 13 remaining charges that persisted until being ultimately overturned by the Supreme Court today.

Did Ellis always maintain his innocence?

Yes. He refused to attend parole hearings that would have allowed him to leave prison early because that would involve admitting to the crimes. 

One of the alleged victims retracted their claims against Ellis following his conviction, admitting they had said what their mother told them to say.

What happened after the 1994 appeal failed?

Ellis appealed again in 1999, though this was dismissed. While the court was not convinced a miscarriage of justice had taken place, they admitted a Royal Commission of Inquiry could perhaps provide a better examination of the issues raised in Ellis’s plea.

He was released in 2000, having served seven years of his initial sentence, but continued to proclaim his innocence and sought a way to clear his name. A ministerial inquiry in 2001 by Sir Thomas Eichelbaum concluded there was no miscarriage of justice. There were also unsuccessful petitions to parliament for a Royal Commission in 2003, 2008 and 2014.

In 2019, almost two decades after leaving prison, the Supreme Court agreed to look back on Ellis’s convictions. At the time, Ellis was terminally ill with cancer. The wheels of the law turn incredibly slowly and Ellis died before his appeal could be heard. However, in a rare turn, the Supreme Court, relying in part on arguments embedded in tikanga Māori, permitted the appeal to continue posthumously. 

Tell me more about this tikanga claim.

The defence had claimed that all people have mana in death, so Ellis had a right to re-establish his mana by clearing his name and that therefore his case should still be heard.

Along with ruling on Ellis’s convictions, the Supreme Court has also today provided reasoning for why it allowed a posthumous appeal. “The court holds unanimously that the appropriate test for deciding whether the discretion to allow an appeal to continue despite the death of the appellant is whether this would be in the interests of justice,” today’s judgment said.

A majority decision in today’s ruling – three judges to two – determined that “the colonial tests for incorporation of tikanga in the common law should no longer apply”. Instead, the relationship between tikanga and the common law will “evolve contextually and as required on a case by case basis”.

Justice Glazebrook, in her majority statement, noted that a posthumous appeal would have been allowed “without considering tikanga”. However she added: “the addition of the tikanga considerations of mana, whanaungatanga, whakapapa, hara and utu supported and strengthened my conclusion on the factors where they were relevant and, in particular, when considering the interests of Mr Ellis and his family and those of the complainants and their families.”

The two dissenting judges “do not consider this a suitable case for the court to make any pronouncements of a general nature about the place of tikanga in the law” but agreed that “tikanga has been and will continue to be recognised in the development of the common law of Aotearoa/New Zealand in cases where it is relevant”.

Regardless, it’s likely that today’s ruling will set in motion potential shifts in New Zealand’s legal future around the possibility of posthumous court proceedings and the role of tikanga in allowing these to take place.

So the court has determined this was a miscarriage of justice?

Yes – and a “substantial” one at that. The court has concluded that, given the extent of inadmissible material and the extent to which certain evidence departed from “appropriate standards”, evidence may well have affected the verdicts and thereby caused a miscarriage of justice. Part of this focused on the risk that the complainants’ evidence – that is evidence provided at the time by very young alleged victims – was contaminated because of “suggestive parental questioning” prior to giving interviews.

There was also concern about the evidence provided by an expert, Dr Karen Zelas, a specialist psychiatrist. The court has determined that her evidence “lacked balance”, suffered from circular reasoning and commented on the credibility and reliability of the complainants’ evidence, which was not permitted under the law.

What else has the court said about today’s judgment?

In final comments released as part of the court’s summary, it was noted that today “marks the end of a long and painful journey through the courts for the many people involved in this case”. 

The court said that the judgment should not be read as a criticism of the parents, the complainants or those involved in the investigation and trial. “The Supreme Court’s focus in this appeal was solely on conducting a careful analysis to evaluate whether a miscarriage of justice had occurred. With the benefit of hindsight, the court considered that the special care and attention required for a case of such unprecedented complexity was underestimated at the time of the investigation and trial and this resulted in a miscarriage of justice.”

Is this the end of the matter?

Yep. “As the appellant has died, the issue of a retrial does not arise,” concluded the court.