Tobacco Products Regulation (E-Cigarettes and Review) Amendment Bill

Introduction and First Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (11:37): Obtained leave and introduced a bill for an act to amend the Tobacco Products Regulation Act 1997. Read a first time.

Second Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (11:38): I move:

That this bill be now read a second time.

This bill seeks to amend the Tobacco Products Regulation Act 1997 to enhance the operation of the act and address the lack of regulation of electronic cigarettes, commonly known in South Australia as e-cigarettes. E-cigarettes are a rapidly evolving technology whereby a user inhales a heated vapour through a battery-operated device. The regulation of these products requires attention as South Australia is now one of only two Australian jurisdictions that have not regulated these products. Due to this lack of regulation in South Australia, e-cigarettes can be sold to children, sold over the Internet, promoted through advertising and used in areas where smoking is banned.

This bill aligns with the recommendations of the select committee on e-cigarettes that was established in 2015 and delivered its final report to the House of Assembly on 24 February 2016. The select committee concluded in its final report that e-cigarettes should be regulated in the interests of public health, as there is a lack of scientific consensus as to the safety of e-cigarettes. The final report recommended amending the Tobacco Products Regulation Act 1997 to regulate e-cigarettes in broadly the same way that tobacco products are regulated.

The bill includes bans on the following: selling e-cigarette products to children; using e-cigarettes in smoke-free areas under the act; retail sale of e-cigarette products without a licence; indirect sales of e-cigarette products; e-cigarette advertising, promotion, specials and price promotions; retail point-of-sale displays of e-cigarette products; and selling e-cigarettes from temporary outlets, such as sales trays and vending machines.

The title and the objects of the act have been amended to incorporate e-cigarettes. The short title of the act will be amended to the Tobacco and E-Cigarette Products Act 1997 to better reflect the legislation's proposed scope. A bill to regulate e-cigarettes was introduced by the previous government in 2017, but the bill lapsed when parliament was prorogued for the 2018 election. A private members' bill was subsequently introduced on 20 June 2018 in the other place, which replicates the prorogued bill. The government does not support the private members' bill, as it is narrower in scope than the government's bill.

While both bills seek to address e-cigarettes in the same way, the government's bill has a number of enhancements that the private members' bill does not contain. These arose from an independent review of South Australian tobacco legislation commissioned by SA Health in 2017. These include improvements to definitions, the repealing of unnecessary provisions, adding expiations to offences where they currently do not occur, and improving the functions of certain provisions. The government's bill also incorporates some adjustments to maximum penalty and expiation levels according to CPI indexation, as the levels have not been adjusted since 1997 and are out of date.

The bill will improve the functioning of tobacco control legislation in South Australia and it will also be useful for authorised officers to have tobacco legislation that is up to date and appropriate for their task of achieving compliance with the act. Maintaining a strong legislative framework for tobacco control is essential for reducing the harms caused by tobacco smoking in South Australia. I commend this bill to members and I seek leave to have the explanation of clauses inserted into Hansard without my reading them.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Tobacco Products Regulation Act 1997

4—Amendment of long title

This clause amends the long title of the Act so that it will read 'An Act to regulate tobacco products and e-cigarette products'.

5—Substitution of section 1

The short title of the Act is changed to the Tobacco and E-Cigarette Products Act 1997.

6—Amendment of section 3—Objects of Act

This clause amends the objects of the Act to include references to e-cigarettes and e-cigarette products.

7—Amendment of section 4—Interpretation

Several definitions are added to section 4 of the principal Act, including e-cigarette, e-cigarette product, e-cigarette advertisement, which aligns with the current definition of tobacco advertisement, and shisha tobacco which in turn is included within the definition of tobacco product.

8—Repeal of section 4A

Section 4A of the principal Act is repealed.

9—Amendment of section 6—Requirement for licence

This clause will require a licence to carry on the business of selling e-cigarette products by retail or holding oneself out as carrying on such a business.

10—Amendment of section 9—Licence conditions

The clause amends section 9 of the principal Act to allow the conditions of a licence to include conditions in relation to e-cigarette products.

11—Amendment of Heading to Part 3

The clause amends the heading to Part 3 to include a reference to e-cigarette products.

12—Repeal of section 29

Section 29 of the principal Act is repealed.

13—Substitution of section 30

Reference is made in section 30 to e-cigarette products, but apart from this, the status quo is largely retained with minor changes including bringing regulation 4A of the current regulations to the level of the Act, updating terminology and increasing penalties.

14—Amendment of section 36—Products designed to resemble tobacco products

The clause amends the section to include a reference to e-cigarettes.

15—Amendment of section 37—Sale of tobacco products or e-cigarette products by vending machine

The clause inserts a new offence prohibiting the sale of e-cigarettes or e-cigarette products by means of a vending machine. Note that previous subsection (2) has been deleted.

16—Insertion of section 37A

New section 37A makes it an offence to sell e-cigarettes or e-cigarette products by retail from a temporary outlet and for an occupier of premises to cause or permit another person to sell any such products by retail on those premises in contravention of proposed subsection (1). Temporary outlet is defined as a booth, stand, tent or other temporary or mobile structure or enclosure, whether or not part of that booth, stand, tent, structure or enclosure is permanent.

17—Amendment of section 38—Carrying tray etc of tobacco products or e-cigarette products for making of successive retail sales

The clause amends the offence provision in section 38(1) to insert a reference to e-cigarette products.

18—Amendment of section 38A—Sale or supply of tobacco products or e-cigarette products to children

The clause amends the offence provisions in sections 38A(1) and (5) to insert a reference to e-cigarette products, and makes other related consequential amendments.

19—Amendment of section 39—Power to require evidence of age

The clause amends section 39(1) to insert a reference to e-cigarette products.

20—Amendment of section 40—Certain advertising prohibited

The clause amends various provisions in section 40 to extend to e-cigarette products the advertising prohibitions that currently apply to tobacco products.

21—Amendment of section 41—Prohibition of certain sponsorships

The clause amends section 41 to extend to e-cigarette products the prohibition on certain sponsorships that currently apply to tobacco products.

22—Amendment of section 42—Competitions and reward schemes etc

The clause amends section 42(1) to extend to e-cigarette products the restrictions on the promotion of sales by competitions and reward schemes that currently apply in relation to tobacco products.

23—Amendment of section 43—Free samples

The clause amends section 43 to prohibit the offering of free samples of e-cigarettes.

24—Amendment of section 51—Smoking banned in certain public areas—short term bans

The change to section 51(1) will, in enabling gazetted notices of short term smoking bans to include maps, ensure a more user-friendly description of the short term smoking ban areas. Under the amendments to section 51(5), the occupier commits an offence if he or she fails to place signs in a public area setting out the effect of the notice made in relation to the public area under subsection (1).

25—Amendment of section 52—Smoking banned in certain public areas—longer term bans

The change to section 52(1) will, in enabling regulations declaring longer term smoking bans to include maps, ensure a more user-friendly description of the longer term smoking ban areas. Section 52(3)(a) and (b) are deleted and reinserted under section 87(3) (see below). Under new subsection (4) the occupier commits an offence if he or she fails to place signs in a public area setting out the effect of a declaration of a longer term smoking ban made in relation to the public area under the section.

26—Amendment of section 66—Powers of authorised officers

The clause amends section 66 to allow an authorised officer to seize and retain e-cigarette products if the officer reasonably suspects that an offence against the Act has been committed in relation to the products, or that the products may afford evidence of an offence against the Act. Other minor updates and corrections are made to section 66.

27—Amendment of section 69—Powers in relation to seized tobacco and e-cigarette products

This clause makes minor amendments to section 69 removing the Minister's express power to sell forfeited products by public tender but enabling the Minister to direct the manner of disposal of such products. The section will also now apply to e-cigarette products.

28—Repeal of Part 6

Part 6 of the principal Act is repealed.

29—Amendment of section 70A—Confiscation of products from children

The clause amends various provisions in section 70A to allow for the confiscation of e-cigarette products from children in the same manner as tobacco products may currently be confiscated under the provisions of the section.

30—Amendment of section 71—Exemptions

The amendments under this clause delete from section 71 requirements for exemptions under that section to be recommended by the appropriate Minister. The Governor is given power to exempt by proclamation e-cigarette products or a class of e-cigarette products from the operation of the Act subject to conditions set out in the proclamation.

31—Amendment of section 85—Evidence

These amendments are consequential on the amendments to section 37.

32—Insertion of section 86A

New section 86A is a standard immunity provision that removes personal liability from an authorised officer or any other person engaged in the administration of this Act for an honest act or omission in the performance, exercise or discharge, or purported performance, exercise or discharge, of a function, power or duty under the Act and attaches such liability to the Crown instead.

33—Amendment of section 87—Regulations

The regulation-making powers are made consistent with current drafting style and the maximum penalties for the regulations increased. References to e-cigarette products consequential on other amendments in the measure are included.

Schedule 1—Transitional provisions

1—Interpretation

This clause defines principal Act, for the purposes of Schedule 1.

2—Licences

The clause provides that licences in force on the commencement of the measure will be taken to authorise the retail sale of e-cigarettes and that existing licence conditions will be taken to include reference to e-cigarette products wherever tobacco products are referred to.

3—References to Tobacco Products Regulation Act 1997

This clause provides that a reference in a licence, instrument, contract, agreement or other document to the Tobacco Products Regulation Act 1997 will, on and from the commencement of the clause, have effect as if it were a reference to the (newly named) Tobacco and E-Cigarette Products Act 1997.

Schedule 2—Further amendment of Tobacco Products Regulation Act 1997—penalty provisions

Schedule 2 amends the penalty provisions in the principal Act.

Debate adjourned on motion of Hon. I.K. Hunter.