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Thoughts on e-cigs Cabinet Paper

Over the weekend, Radio NZ ran the headline ‘E-cigaettes fail to get Health Ministry support’, based on MoH’s Cabinet Paper. The headline was a bit of a shocker, given submissions to MoH’s public consultation have only recently closed (read The NZ Initiative’s submission here).

At first I thought the headline was a bit premature, but I can’t say the Cabinet Paper gives many reasons for optimism. From the document, it appears a lot of weight is placed on hypothetical worst case scenarios, and not a lot of weight on existing evidence.

Here are the bits worth noting:

The legal status of e-cigarettes is confusing and the laws are not routinely enforced because of the lack of clarity. Currently the sale and supply of nicotine e-cigarettes are prohibited while smoked tobacco, which is more harmful for users, can be sold legally

True. There’s a total double standard at the moment where smoked tobacco is readily available, while the much less harmful alternative, e-cigarettes is heavily regulated. The status quo currently puts vapers at risk. Importing nicotine e-liquids from overseas does not offer consumers the same opportunities for recourse as domestic sales if products are faulty or mislabeled. Not to mention that the status quo is hugely inconvenient, given not all vapers or potential vapers will be comfortable with (or able to adapt to) online purchases.

There is a lack of clarity about long-term product safety, and health risks to users and non-users.

Well yes, as a relatively new product, long-term evidence of safety is all but inevitable. Yet there is no convincing and substantial evidence of short term risks (a lot of studies have tried to prove as much, but  many of those studies are of poor quality and design). If this is a major concern of regulators, then whatever legislative framework is decided, regulations should be flexible enough to be updated as new evidence emerges.

It has also been suggested that the availability of these products could undermine tobacco control initiatives.

It is equally plausible that these products can reinforce tobacco control initiatives by offering smokers an alternative way to quit smoking. There are many hypothetical scenarios that could play out, and this is the worst-case scenario. I’d hope regulations are based on something more robust than simply guessing human behaviour.

There is ongoing scientific debate about whether e-cigarettes may be another tool for smokers to quit. At the same time, there is general scientific consensus that the use of e-cigarettes is less harmful for smokers if they completely switch.

It is hard to understand how e-cigarettes can be effective as a cessation tool if the product is not readily available. The widespread availability of the product is important to ensure users do not switch back to smoking. It is also probable that social conventions and acceptability will play a part. Besides, I wouldn’t be so dismissive of dual smokers: those who cut down on their smoking through e-cigarettes but do not quit completely (see The Health of the State). There is no doubt that the greatest improvement to health will come from quitting smoking completely. However, there is a risk that fears of dual use will let the perfect be the enemy of the good.

I therefore propose to clarify the legal position so that all e-cigarettes (with and without nicotine) are available for sale and supply lawfully in New Zealand, but that sale is restricted to people 18 and over, that advertising of e-cigarettes is restricted, and that the use of ecigarettes is prohibited in smoke-free places.

These issues were discussed in The NZ Initiative’s public submission. R18 restrictions are reasonable, and the application of age restrictions usurps the need to introduce additional restrictions aimed at youth.

Short story on advertising: Advertising restrictions and prohibition in smoke-free places make little sense. Advertising enhances vapers’ and potential vapers’ knowledge that these products exist, and to communicate developments in the technology and flavours available.

Short story on smoke-free spaces:Given there has been no established harm to bystanders from e-cigarettes, and given the purpose of smoke-free spaces is to deter smokers, it is hard to understand why vaping should be included in the ban.

If the Ministry is considering tobacco-like restrictions on e-cigarettes, then there must be evidence of risks and harms that are of similar magnitude as smoked tobacco. And for now, there isn’t.

In summary, there is emerging evidence that, if smokers switch completely to e-cigarettes, these products are a significant harm reduction tool but there is not yet enough data to assess the role of e-cigarettes as a smoking cessation tool.

Again, I wouldn’t be so dismissive of dual use in overall harm reduction.

I understand that caution needs to be taken by the Ministry in recommending the therapeutic nature of the product. But the Ministry’s silence matters. By avoiding recommending the product, the Ministry might inadvertently over-exaggerate the harms and risk associated with the product. There needs to be a happy middle-ground where smokers who want to quit are able to obtain credible advice on the availability of e-cigarettes as a possible option, without over-exaggerating the evidence that they will be effective for all people. The following could possibly be a good move:

The Ministry monitors emerging research and is developing guidance for health professionals and stop smoking support workers on how to support smokers who want to use e-cigarettes to quit smoking.


There is some overseas evidence to suggest that promotion of e-cigarettes targets young people and that some e-cigarette flavours (such as chocolate, strawberry and mint) may particularly appeal to young people.

Um, I hate to state the obvious, but these flavours appeal to adults too! In fact fruity flavours are the second most popular flavour (behind tobacco) for adult e-cig users. If age bans are enforced, then I don’t see why additional regulations on flavours are needed. The variety of flavours is an important feature for e-cigarettes to appeal to a variety of users.

Anecdotal evidence shows that nicotine and nicotine-free e-cigarettes are being sold to minors.

The ambiguity in current laws might be exacerbating this problem. If nicotine e-liquids are legal and age bans are introduced, then ID-checking should become as routine as checks for other r18 products (and those who break the law should be punished). By operating in a so-called ‘grey area’ of law, it is understandable why current e-cigarette retailers might not adhere to black-and-white age restrictions.

There is concern young people’s experimentation with and use of e-cigarettes may lead to nicotine addiction and/or have a gateway effect, leading to young people taking up smoking.

Again, that’s why age restrictions would be welcome. But concerns at this stage are overstated. The gateway effect has not been adequately established (for a good summary of what can go wrong in gateway effect studies, see Clive Bates). And again, the gateway effect is just one hypothetical scenario among many. It is equally plausible that those young people who would have otherwise taken up smoking, are now experimenting with a less harmful product.

There is evidence of an increase in New Zealand young people trying e-cigarettes.

The distinction between nicotine and non-nicotine e-cigarettes is an important one. Non nicotine e-cigarettes are even less harmful and risky than those nicotine. Emerging evidence from the US suggests that most kids that do experiment are experimenting with non-nicotine eliquids.  There also needs to be a distinction between ever-use (experimenting once, because let’s face it, young people experiment with a number of activities) and regular use. Finally, the counter factual needs to be considered: is e-cigarette experimentation taking the place of smoking experimentation, in which case, overall harm and risk has been reduced.

There are concerns that the increasingly visible use of e-cigarettes may increase the risk of renormalisation of smoking behaviour and initiation to smoking, especially by young people.

But the behaviour isn’t analogous. More evidence is needed on this, because instinctively, smoking and vaping aren’t the same thing. It’s another hypothetical worst case scenario. It’s not obvious that one would lead to the other. While the action of vaping might appear similar-ish to smoking, the sensations (taste, smell, look, clouds of vapour vs. smoke) are not identical.

E-cigarette vapour can produce vaping clouds and smells which may be a nuisance to bystanders, especially in enclosed spaces.

I think this is supposed to be an argument in externalities. But there is virtually no decision or activities that does not affect bystanders, the existence of an external effect is not sufficient justification for government intervention. Stuff that isn’t banned but may be of nuisance to bystanders include: loud protests, strong smelling foods, bad body odour, strong perfume, people who dawdle on Lambton Quay…..the list goes on.

The increasing concentration of the e-cigarettes market in the hands of the transnational tobacco companies was considered to be of grave concern in light of the history of the corporations that dominate that industry.

If that really is a concern for legislators, then the worst thing a government could do is impose an overly regulated market that enforces burdensome and costly requirements on manufacturers. Big businesses can easily pay these costs, it is the smaller businesses that suffer. Regulatory frameworks like those imposed by the FDA and EUTPD are likely to limit product and market diversity because of the excessive red tape imposed.

Even though these concerns are unsubstantiated at this stage, it may be warranted – in the light of a lack of data – to apply a precautionary approach whereby the provisions of the SFEA prohibiting sales to minors, restricting advertising, and preventing their use in smokefree places are applied to e-cigarettes.

Alternatively, impose a light-touch regime that avoids the unintended consequences of burdensome regulation. Allow flexibility with the regulation by adopting scheduled reviews to accommodate emerging evidence.

The Associate Minister of Health will report back to Cabinet by 31 October 2016 on proposals for the regulation of e-cigarettes

Excellent. I was not aware of this date, and was half expecting this to be a drawn out process.

To be clear, I understand why MoH might want to be cautious or risk averse. However, being risk averse has costs in itself. Cautious regulation can limit or completely stifle the real benefits e-cigarettes might offer to vapers/potential vapers. Sometimes it is the well-intentioned regulations that can cause the most harm.

About Jenesa Jeram (23 Articles)
I'm a researcher at the Initiative, currently working on social issues and public health. I have Twitter but I'm not very good at it: @JenesaJeram (I'm also super creative).

1 Comment on Thoughts on e-cigs Cabinet Paper

  1. Good even summary of a tricky area. Nicely done

    Liked by 1 person

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