So you decided to go into a convenience store. As you enter through the automatic sliding doors, you see under the cash register a class cabinet with a strange handheld device. You ask the cashier what it is. He tells you it is a handheld device containing an atomiser filled with flavoured liquid and inhaling then exhaling vapour that looks like smoke. He hands you a pamphlet. It reads “e-Cigarettes”, and inside shows a list of over 7,000 flavours, such as tobacco, fruit and chocolate. In other words, it is an alternative to smoking tobacco cigarettes. You ask yourself is it legal to use e-cigarettes in NSW?

What Are E-Cigarettes?

Basically, an e-cigarette is described as battery powered device which heat liquid into an aerosol which is inhaled into a person’s lungs. The aerosol is called ‘vapour’. Unlike cigarette butts, users do not inhale smoke from burning tobacco. Instead, the user inhales an aerosol into their lungs. It mimics the process of smoking, as well as the shape and colour of cigarette butts.

For more information about whether e-cigarettes are legal in NSW, check out the NSW Government’s fact sheet.

Is It Legal To Use E-Cigarettes In NSW?

Technically it is legal to use e-cigarettes in NSW. However, there are strict regulations in place. Generally, some states and territories have addressed the issue of whether e-cigarettes are legal and/or subject to laws relating to poisons, therapeutic goods and tobacco control. In June 2015, the NSW Parliament passed the Public Health (Tobacco) Amendment (E-cigarettes) Act 2015, which distinguished e-cigarette accessories from tobacco products and the types of offences that can be committed in NSW. For example, it is an offence:

  1. to sell e-cigarettes and e-cigarette accessories to minors under the age of 18;
  2. for adults to buy e-cigarettes and e-cigarette accessories on behalf of minors;
  3. to operate or use a vending machine that dispenses e-cigarettes and/or e-cigarette accessories on behalf of a minor.

If e-cigarettes and/or e-cigarette accessories are sold to a minor, there are costly penalties that can be enforced against individuals, corporations and repeat offenders, such as a $11,000 fine for an individual and $55,000 for a corporation.

Although it is legal for a person over 18 years old to ‘smoke’ from an e-cigarette, it is actually illegal under the Poisons and Therapeutic Goods Regulation 2008 (NSW) to sell liquid nicotine, including liquids used in e-cigarettes, not listed on the Australian Register of Therapeutic goods or without the NSW Ministry of Health’s approval.

Moreover, if nicotine is not used for therapeutic use or in tobacco prepared and packed for smoking, it is considered a Schedule 7 dangerous poison. It is also an offence to sell e-cigarettes containing liquid nicotine or e-liquids containing nicotine without approval, which may result in a fine of up to $1100 for each offence. Not only are fines issued if liquid nicotine or e-liquids, a business can be prosecuted if it sells a Schedule 7 product containing nicotine that is not clearly labelled and packaged as a Schedule 7 dangerous poison. This is because retailers, suppliers and manufacturers have a responsibility to ensure all their products comply with legislation.

Display Of E-Cigarettes and Accessories

There are restrictions prohibiting where and how e-cigarettes are sold in NSW. By law, retailers cannot display e-cigarettes and accessories in a manner that can be seen or heard by the public inside or outside the premises. It is illegal for a retailer to display an e-cigarette advertisement publicly as well. Even a person cannot carry an e-cigarette or accessory in a public place if they intend to sell it there, this includes giving out free samples.

For more information about the NSW Government’s ban on the display of e-cigarettes and accessories in retail outlets and locations, check out it’s retailer factsheet.

For more information on the NSW Government’s ban on the advertising of e-cigarettes and accessories, check out it’s retailer factsheet.

Using E-Cigarettes in Public Places

Essentially, it is legal to use of e-cigarettes regardless of whether it contains nicotine or not under the Smoke-free Environment Act 2000 (NSW). A person can use e-cigarettes in indoor and outdoor public places. But this does not mean businesses and workplaces cannot ban patrons and staff using e-cigarettes on their premises.

Further, be aware it an offence to use e-cigarettes in cars with children under 16 years old. For more information about this topic, check out the NSW Government’s fact sheet.

Conclusion

It is legal to use e-cigarettes in NSW. However, there are regulations concerning the sale, distribution and display of e-cigarettes in public places. You should also be aware laws may vary between states so before you use or sell e-cigarettes and e-cigarette accessories, always check whether or not the law prohibits it.

Fiona Lu

Fiona is a Paralegal working in our content team which aims to provide free legal guides to facilitate public access to legal resources. With an interest in information, media, consumer and employment law, her primary focus is on how technology will affect the future of the legal industry.