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Electronic cigarettes

By David Leyonhjelm - posted Tuesday, 29 July 2014

It seems everything is illegal in Australia unless a bureaucrat gives permission. What's worse, you have to go to the trouble and expense of asking the bureaucrat for permission, because if bureaucrats were proactive they would run the risk of serving the public.

A good example is the case of e-cigarettes. These little inhalers can deliver a warm puff of nicotine, without the carcinogenic tar and industrial solvents of cigarette smoke. Alternatively, they can deliver a puff of anything else you could wish for, such as the flavour of mint, chocolate or whiskey.

In Australia, it is illegal to sell e-cigarettes to deliver nicotine. Not because a bureaucrat has made a decision to ban them, but because no one has yet asked the right bureaucrat for permission.


What Australia is missing is an Oliver Twist – a poor wretched soul who draws the short straw and has to ask the bureaucrats at the Therapeutic Goods Administration (TGA): "Please, sir, I want some more".

If anyone gets around to asking the TGA for permission, they will have to jump through the right bureaucratic hoops. They will need to put their hand on their heart and say that the only purpose of an e-cigarette is as an aid to giving up smoking. They will have to swear that no one would ever use them for enjoyment. And the onus will be on them to prove (at considerable expense) that e-cigarettes are effective quitting devices.

The ban-by-default of e-cigarettes containing nicotine suits zealous public health advocates just fine. They argue that something should be banned until it is clearly demonstrated to be harmless, since we are all incapable of deciding for ourselves. Such reasoning would have banned every human innovation before it could become popular, from the wheel to the internet. We would truly be in the dark ages.

They ignore their international counterparts such as the Royal College of Physicians, which concluded that e-cigarettes offer massive potential to improve public health by providing smokers with a much safer alternative to tobacco. They ignore how e-cigarettes are freely available in the EU and the United States. And they ignore Australia's history of level-headed harm minimisation, such our pioneering of the option of methadone treatment for hard-core heroin addicts.

It is hard to avoid the conclusion that their primary goal is to achieve a puritanical victory against nicotine rather than to save lives. It's not really about the smokers, it's about them. Like Marie Antoinette, they say to the smokers who could benefit from e-cigarettes: "Let them go cold turkey".

In the meantime, Vince Van Heerden, a Perth businessman, lies convicted of the crime of selling e-cigarettes without nicotine. When the WA Health Department took Vince to the Magistrates Court, the case was thrown out because the magistrate found that, while it is illegal to sell something resembling a cigarette, the e-cigarette in question looks more like a pen. Unfortunately the WA Health Department appealed to the Supreme Court, arguing that smoking heralds the apocalypse and anything that could possibly remind anyone of a cigarette must therefore be banned. The Supreme Court was convinced, and Vince Van Heerden was convicted.


But the weirdness doesn't stop there. While it is illegal to sell e-cigarettes in Australia, it is perfectly legal to import up to three months' supply of e-cigarettes, with or without nicotine. So our Government intentionally lets foreign online businesses do the exact thing that they ban Australian businesses from doing. It's reminiscent of the line: "No sex please, we're British."

We are left with the most bizarre of situations. It is perfectly legal to sell cigarettes, which deliver death through combustion (along with billions of dollars of excise revenue to the Government). And it is perfectly legal for foreign businesses to sell us e-cigarettes with or without nicotine. But it is illegal to sell e-cigarettes with nicotine in Australia, because no one has asked the TGA to deem them to be quitting devices. And it is illegal, at least in some Australian States, to sell e-cigarettes to deliver non-nicotine flavours, because – horror of horrors - someone might see someone put something to their mouth. It's like a ban on dancing because it can lead to fornication.

The Government bans by default, then places each Australian in the position of Oliver Twist, where we have to plead with authorities for permission to pursue a humble existence. Dickens, the great champion of justice and common sense, would be turning in his grave.

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This article was first published in the Australian Financial Review.

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About the Author

David Leyonhjelm is a former Senator for the Liberal Democrats.

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