This is my response to the Government’s Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024, which aims to ban vaping in Australia.
As a result of the measures already taken by the Government to ban vaping, organised crime is now moving into illegal tobacco and vape markets with horrific consequences.
This is not about selling our children a bergamot herbal vape; rather, it’s so they can sell vapes laced with hard drugs to get our youth addicted and reclaim the market share that vaping has cost them.
I’ve always maintained that the safety of vapes depends on the quality of the device and the liquid it contains. A more effective regulatory approach would have been to support a future Made in Australia by allowing Australian companies to produce legal, quality-tested and regulated vapes. This should include measures to keep these products out of the hands of children and to impose the same usage restrictions as those applied to smoking.
Instead, the Government is doing the bidding of the pharmaceutical industry, which views vaping—and medical cannabis which vapes often hold—as a threat to their profits and power.
This Bill will backfire badly.
Transcript
I’m speaking to the Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Bill 2024. I note the government circulated 11 pages of amendments just an hour or so ago. The large number of amendments indicate the process of consultation was flawed, and concerns from senators have caused fundamental changes to this bill. Is it in, out, in or out? I hope the government learns a lesson from this and in future honours the spirit of genuine consultation. I hope it honours the committee process to produce a bill that doesn’t need last-minute, wholesale changes.
I note the bill amends the poison schedule, to downgrade vapes from schedule 4 to schedule 3, and adds conditions to their use in that listing. When I tried to do exactly the same thing—to downgrade medical cannabis and add conditions to that listing—I was told, ‘That’s a very strange thing to do,’ and my bill was not supported, in part because of that. Now they’re doing the very same thing that they said was very strange.
In Queensland, vaping products with or without nicotine are illegal unless on prescription. Vapes are subject to the same laws as cigarettes or tobacco products as to where they can be used and the circumstances in which they can be purchased. Queensland law right now prevents children under 16 accessing or using a vape. Personal health and child welfare are rightly the responsibility of the states. Yet, once again, this government seeks to increase its powers in areas where it has no Constitutional authority.
This bill amends the Therapeutic Goods Act 1989 and the Customs Act 1901 to limit the importation, domestic manufacture, supply, commercial and private possession, and advertising of non-therapeutic and disposable vaping goods. Over-the-counter sales at chemists will be permitted, and access to children under 18 will be via the Special Access Scheme. There are substantial differences in how possession for personal use and commercial use are handled, yet the bill does not specify this threshold, which will come later in regulation that we haven’t seen. Too much of this bill will come later in regulations. The government is asking us to trust their judgement on a bill that is a litany of bad judgement. The bill defines a vape as ‘anything that’s held out to be a vape’. It explicitly excludes the need for a lab analysis to prove that the item is in fact a vape. Much of the bill goes into the licensing arrangements for importation, manufacture, distribution and possession.
The bill was developed after supposed consultation, yet the government’s reaching out to selected friends in the health industry who share the same commercial interests as informed this bill is not consultation. It’s an echo chamber of self-interest, as the substantial last-minute amendments now prove. Everyday Australians were not permitted to make a confidential submission. Their submissions had to be public and accompanied by a declaration of interests—something very few witnesses felt comfortable doing. In particular, this prevented personal stories of how vaping helped defeat a smoking or other addiction and weighted submissions towards self-interested corporate health providers and charities.
The evidentiary burden of proof in the offences under the bill are reversed. This removes the common law protection that fault must be found before an offence has been committed. While the government may find contesting charges in a court of law tiresome, 800 years of common law rights should not be so lightly dismissed and disposed of. There’s no justification for reversing the burden of proof. For this reason I have submitted an amendment to this bill in the committee stage to restore the presumption of innocence enjoyed by all Australians since our country’s settlement. At section 41P(1), ‘vaping substance’ is defined as ‘any liquid or other substance for use in, or with, a vaping device’. There’s no nuance in the penalties. Possessing a vaping substance carries the same penalty as possessing a vape itself.
People who make cakes, fudges, chocolates, lollies and similar products use the same flavourings as can be used in vape manufacture. Those flavourings shouldn’t be used in vapes. They may be considered safe for stomachs, but not for lungs. Yet they are used in illegal vaping solutions, and I’ve received complaints from bakers that, for this reason, Border Force are seizing shipments of flavourings. Under this legislation, a baker or confectionary manufacturer importing a food flavouring that can be used in vaping must first have it approved for use, despite its being in use for generations, and then obtain a licence to import or possess commercial quantities—of cake flavouring! The importer and probably their largest customers will need to keep records of their use of these potentially illicit food flavourings to ensure that organised crime is not supplied out the back door, with penalties of up to $3.8 million and/or imprisonment for seven years. This is serious business.
I appreciate that this is not the intention of the bill. Yet it is the wording of the bill. I point out that the bill and the explanatory memorandum provide no guidance as to which goods should be permitted and which should not. The minister has complete power to make this decision. So far job losses from vaping prohibition are around 2,000, with 500 vaping stores already closed. The trade in vaping has now moved into the hands of organised crime, with a gang war breaking out in our capital cities to control the illicit vaping trade, as well as the illicit tobacco trade now that tobacco has been taxed to the point of idiocy. The bombings, ramraids, murders and violence so far in this underworld war are on the government, for breaking the government’s social licence to act fairly, honestly and reasonably towards the public. The best interest of the public has been replaced with the best interest of crony capitalist stakeholders.
The last-minute deal with the Greens to add over-the-counter sales at chemists may serve to head off that outcome. Time will tell. The Pharmaceutical Benefits Scheme 2022 post-market review of medicines for smoking cessation found that 550,000 prescriptions were written for smoking cessation products in 2022. And get a load of this: these included varenicline, from Pfizer, costing $194 a prescription, which in the various formulations was responsible for 2,042 Australian adverse event notifications, including 55 deaths. And there is bupropion, from Aspen pharmaceuticals, which has had 2,100 adverse event notifications, including 22 deaths. The incompetence—does it stop? The post-market review says, ‘The mechanism by which bupropion enhances the ability of patients to abstain from smoking is unknown.’ So, we don’t know why it works. It’s killed 22 people—yet, prescribe it anyway! Just don’t let people buy their own vapes. We can’t have smokers quitting on their own, can we?
The explanatory memorandum for this bill cites data from the Australian secondary school students’ use of tobacco and e-cigarettes report, which states that the proliferation of vaping across the community represents a severe public health concern. Vaping has been associated with severe public health effects relating to adolescent brain development, worsened pregnancy outcomes, cardiovascular disease, respiratory disease and cancer. Vaping also carries other health effects such as burns, seizures and poisoning.
Let me deal with the last one first. Yes, illicit vapes do cause internal burns and cause external burns if they explode. They cause poisoning and seizures as a reaction to that poisoning. A poorly made vape will burn and put toxic chemicals into the user’s lungs. Unregulated vaping in the USA caused 28 deaths coming from the use of ethylene glycol, a popular substance in commercial baking. It’s considered safe to be eaten but not safe to be vaporised into the lungs. This illegal use of a legal substance is what caused the popcorn lung syndrome. Illegal vapes can contain thousands of substances we call ‘compounds’ when in legal products and ‘chemicals’ when not in legal products. There are, however, 7,000 chemicals in cigarette smoke—more than are found in a quality vape, not an illicit vape. Telling one side of the story never communicates an honest picture of the truth. It condemns you. It used to be possible to import quality vapes from New Zealand. The Labor government stopped this. Now we have unsafe, illegal vapes. Who knows what’s in them? The TGA’s tweets against vaping were community noted with a comprehensive bibliography of good science that counters their scare stories. I will reproduce those community notes with citations on my website for anyone who wants to educate themselves on legal, safe vaping.
Is vaping a gateway behaviour to smoking or drug-taking? Actually, no; it’s not. On page 8 of the secondary school report, smoking rates amongst schoolchildren have fallen over the last five years. ‘Ever smoked’ is down from 17.5 per cent to 13.5 per cent. ‘Smoked in the past week’ is down from 4.9 per cent to 2.1 per cent—more than halved. This was in a period when vapes were readily available. Vaping is clearly working to reduce smoking rates. This is what has the quit smoking industry worried.
The UK government’s periodic data review titled Nicotine vaping in England: 2022 evidence update found that 98.3 per cent of children who had not tried smoking did not try vaping. This means any increase in vaping rates is either in replacement of smoking or in conjunction with smoking. This data is in contrast to the secondary schools report which found that past month vaping alone was at 15 per cent. Let’s have a look at that. The study covered vaping as a generic class, including e-cigarettes and herbal vapes, which are a large part of the vaping market. Despite the effort put into this study, no attempt was made to analyse the vapes consumers were actually using, and no firm conclusion can be drawn as to the presence of nicotine or any other regulated substance.
The other study the government cited, Australian secondary school students’ use of alcohol and other substances, is alarming. It showed that 22 per cent of secondary school students had used alcohol in the past month, 10 per cent had used alcohol in the past week, and four per cent were engaging in risky drinking. Why aren’t we worried about that? What hypocrisy to introduce the world’s harshest legislation on vaping and ignore the elephant in the room: teenage drinking. Other drug use is down. Figures for ‘used in the last month’ show black market cannabis use down from 8.1 per cent to 6.6 per cent, hallucinogen use down from 1.1 per cent to 0.8 per cent, MDMA use down from 2.1 per cent to 1.1 per cent, pharmaceutical opioid use down from 1.9 per cent to 1.4 per cent, and cocaine use down from 0.8 per cent to 0.6 per cent. These small reductions are more significant than they appear. With 1.5 million Australians in the secondary school age group, every 0.1 per cent of reduction in hard drug consumption means 1,500 young Australians are not getting addicted to hard drugs. Across all types of hard drugs, the figure is over 50,000 lives saved from the misery of hard drug addiction.
The scare campaign that vaping is a gateway to smoking and to hard drugs is fraudulent and designed to cover up the reverse, because the reverse is true. The committee did look at the use of vaping as a smoking cessation tool and concluded the evidence was inconclusive. So there is no reason to save vaping on that account. Poor judgement indeed.
In their deliberations, the committee gave a thought of time to the quit smoking industry, which is funded at $500 million across forward estimates—half a billion dollars! This does not include the financial benefit of fundraising. That half a billion dollars is just the government’s contribution, yet quit smoking rates have been stagnating across the Western world. Firstly, that’s because the few people who still smoke have the money to afford smoking, want to smoke and will continue to smoke. Secondly, there are people for whom the current industry of gums, patches and financial blackmail is just not working. Some people have found that, where these other measures did not work, vaping did work. These are the people who will, no doubt, be forced back to smoking as a result of this bill. Imagine all those extra smokers to keep government revenue rolling in—all those extra smokers to keep the ‘quit smoking’ industry and taxpayer money for years to come. The financial impact statement for this bill doesn’t mention the increase in revenue from smokers being forced back to smoking. I imagine it will be substantial.
Another failure in this bill is forfeiture. The easiest way to control vaping in schools is to allow teachers to seize vapes when they see them. That provision is not in this bill. Seizure is limited to commercial quantities seized with a court order or any good ‘seized by the control of customers at the border’. The one thing this bill could do to help control adolescent vaping is to allow teachers to seize vapes, and it doesn’t do that. I foreshadow my second reading amendment calling on the federal and state governments to sort out jurisdictional issues and give teachers the power to confiscate and destroy vapes brought into schools without a prescription.
As a result of measures to ban vaping, organised crime is moving into the illegal tobacco and vape market with horrific consequences. This is not so they can sell our children a nice bergamot herbal vape; it’s so they can sell vapes laced with hard drugs to get our children hooked and to take back the market share vaping has cost them. I have said all along that vapes are as safe as the vape and the liquid inside. A better idea is to provide for a future made in Australia and allow Australian companies to produce legal, quality tested, regulated vapes and then ensure these are, firstly, kept out of the hands of children and, secondly, subject to the same restrictions on use as smoking.
I look forward to the government monitoring the outcome of this hasty, incomplete bill closely and acting quickly if the outcome is not as expected. I think the outcome will bring horrific consequences, so please monitor this for the sake of our children.
