The criminalisation of nicotine vaping risks “unintended consequences” including fuelling the black market, causing worse health outcomes and even potentially putting people in prison when we should be trying to keep them out, the Australian Alcohol and other Drugs Council (AADC) says.
It is an offence in all states and territories to supply a nicotine vape to someone without a prescription, and to either possess or use one without a prescription.
Despite the restrictions, nearly one million Australians now regularly vape, double the number in 2019-2020, according to the Public Health Association of Australia (PHAA). An estimated 11% of 16-to-24-year-olds are regularly vaping, PHAA said.
Although not all vapes include nicotine on their ingredient list, most vapes in Australia contain the substance – and there’s evidence children and adults without a prescription are still accessing vapes containing nicotine, according to the TGA.
The TGA has warned of the dangers around vaping, including nicotine addiction, respiratory disease and seizures, while the National Health and Medical Research Council said vapes can result in seizures and poisonings that can “be severe and cause death”, and a “serious and sometimes fatal lung condition”.
But AADC chief executive, Melanie Walker, said the current rules regulating nicotine vaping products (NPVs) create potentially “perverse” and unintended penalties – and people already serving prison sentences, people in lower socioeconomic bands, and Aboriginal and Torres Strait Islander people could be disproportionately affected.
In some jurisdictions, possession can result in jail time. In ACT, for example, illicit vape possession could result in a two-year prison sentence, equivalent to the penalty for possessing personal use amounts of illicit drugs.
That’s all laid out in the AADC’s submission to Australia’s drug regulator, the Therapeutic Goods Administration (TGA), which has been seeking input on potential reforms to stop children and adolescents from accessing NPVs.
Walker said most jurisdictions were moving towards looking at personal drug possession as a health issue, not a criminal issue.
“There’s no one who would want the penalties for possession of nicotine vaping products for individuals to be something that ends up with a custodial sentence or significant hardship above and beyond what the community would imagine,” Walker said.
The AADC submission argues that criminalisation boosts the market for “substances of unknown quality”.
“In a criminalised environment where a substance is made illegal but is widely available through illicit markets, the quality, chemical makeup and potency of a substance is often unknown to people who use that substance, leading to harmful health impacts such as fatal and non-fatal overdose,” it said.
The submission also notes that the stigma of illegal activity can stop people seeking help, and a criminal record can have lasting consequences on their lives.
Walker said better not worse health outcomes should be the aim, adding that we should be talking about keeping people out of prison, not putting them in.
“Please don’t make it worse than it already is, and can we have a bit more of a think about the penalties, particularly in relation to individuals. We don’t want to cause any further harm,” she said.
The AADC has deliberately ventured beyond the scope of the TGA’s remit as it argues there is a broader policy context around NPVs that needs to be discussed.
The Alcohol and Drug Foundation made similar points in its submission, saying while further regulation and enforcement was needed, adults who want to access nicotine products should have “a straightforward pathway” that does not incur “additional harms”.
Overregulation and “prohibitionist approaches” would lead to growth in illicit markets, the foundation said.
Criminal law specialist Justin Wong, the founding partner of Streeton Lawyers, told Guardian Australia it was better if people could avoid contact with the judicial system for minor offences, pointing to systems such as drug possession laws in New South Wales which allowed police to give penalty notices or cautions for cannabis as an approach that worked.
“Any review of offences that deal with possession of these products should include consideration of the importance of police discretion,” he said.
The TGA’s consultation period has now closed and it is reviewing the feedback received in the submissions.
Health authorities, including the Australian Medical Association (AMA), the Royal Australian College of General Practitioners, and the Public Health Association of Australia are pushing for tighter regulations and border controls, while the vaping industry wants nicotine e-cigarettes legalised and freely available.