Are Vapes Illegal in NSW?
Vapes and vaping have become increasingly popular amongst younger people. The long-term health effects of vape use are not widely known, but research suggests it may lead to serious health issues. In light of this, several new laws regarding the use of nicotine, vapes or e-cigarettes and e-liquid have been introduced in Australia’s States and Territories.
The revised and amended laws have been amended to limit the use and availability of vapes in Australia. It is important to know which vape products are legal or illegal in NSW. A person has to be familiar with the new vape laws in NSW, the different offences, and the maximum penalties when using, selling, manufacturing or importing vape products.
What is Vaping?
A vape or an e-cigarette is a device operating with batteries. This disposable or reusable device heats a liquid and as the liquid heats, it produces an aerosol that users inhale. Vape users inhale the aerosol into their lungs. This process is known as vaping. The e-liquid is flavoured and may or may not contain nicotine and other chemicals or ingredients. Vapes do not generally contain tobacco but may contain a mixture of different chemicals such as:
· Propylene glycol
· Ethylene glycol
· Glycerol
· Added flavouring such as diacetyl
· Volatile organic compounds
· Nicotine
· Heavy metals
Vaping devices or e-cigarettes are available in different shapes and sizes and can look like USBs, pens, highlighters, or even normal cigarettes. A vape contains a battery, an atomiser, and a fluid cartridge. Vapes are also called e-cigarettes or e-liquids.
The Risks of Vaping
Vaping is less harmful than smoking, but there are still some serious risks associated with vaping. Vapes may expose vape users to certain toxins and chemicals that have the potential to cause harm and adverse health effects. People may increase their risk of developing serious cancer and respiratory or cardiovascular diseases when vaping. Research suggests vaping is unhealthy. It is bad for a person’s lungs or heart. Users also expose bystanders to these chemicals when the user exhales the aerosol back into the air.
E-cigarettes are often misrepresented and labelled incorrectly. They may contain high levels of nicotine, even if they claim not to contain any. These high levels of nicotine can cause poisoning if inhaled in large quantities.
E-cigarettes containing nicotine can be as addictive as traditional tobacco cigarettes. The risks of vaping are even greater for teenagers as it can harm parts of their developing brain and increase the risk of future addiction to other drugs. Vapes are creating a new generation hooked on nicotine.
Amended Vape Laws in Australia - Are Vapes Legal in NSW?
It is illegal to import, sell or buy nicotine vaping products without a valid permit or prescription across the Australian States and Territories. Since October 2021, nicotine vaping products can only be purchased if the products are prescription medications.
Are Nicotine Vapes illegal in NSW?
The significant increase in the use of nicotine vape products and nicotine e-cigarettes by young people motivated The Federal Government and the Therapeutic Goods Administration to amend the law on nicotine-based vaping.
E-liquids or vaping products containing nicotine are seen as dangerous poison and are classified as Schedule 4 under the National Poisons Standard. Schedule 4 drugs are primarily prescription-only medicine. Schedule 4 includes all nicotine vaping products as prescription-only medicines. Nicotine replacement therapies such as patches do not require a prescription and can be purchased from pharmacies and retail stores. E-cigarettes and vaping products that do not contain nicotine can be obtained legally and is available in retail stores.
The Federal Government regulates the use of nicotine or nicotine-related products under the Therapeutic Goods Act 1989. It is illegal to purchase vapes or any e-liquids containing nicotine. Vapes must be registered by the TGA to be legal if used for therapeutic purposes, for example, for smoking cessation or alleviating nicotine withdrawal. They can only be used under medical supervision and with a prescription. It is illegal for any Australian retailer to sell nicotine vaping products.
It is illegal to use nicotine-based vapes across all the States and Territories in Australia if a person does not have a valid prescription, except in Tasmania. It is legal with a prescription to use a vaping product containing nicotine. In Tasmania, pharmacies have to obtain a license to stock nicotine vaping products.
It is Illegal to Buy and Ship Vapes to Australia from Other Countries
It is illegal to purchase or import nicotine vaping products from overseas suppliers. A person is only permitted to purchase e-cigarettes overseas or on overseas websites if they have a valid prescription provided by an Australian medical health care professional. A person may face serious penalties and fines if they do not have a valid prescription for overseas purchases in all the States and Territories in Australia.
For personal use, a person can order a maximum of three months’ supply as a once-off purchase and a maximum of 15 months’ supply in 12 months. A person with a valid prescription may purchase the products at an Australian pharmacy.
The Australian Border Force can intercept packages of nicotine vape products. Suppose any of these imported packages containing nicotine-based vaping products do not have a valid prescription or do not adhere to the prescribed amount. In that case, the package is deemed unlawful under the Therapeutic Goods Act 1989. The Customs Act 1901 gives the Australian Border Force the right to seize these packages as prohibited imports. A person can face a maximum penalty of a $222,000 fine as per Section 50 of the Customs Act.
Vape Laws in New South Wales
Are nicotine vaping products legal or illegal in NSW? It is illegal to import, buy or attempt to buy or obtain vapes containing nicotine without a doctor’s prescription under the following legislation in NSW:
· Therapeutic Goods Act 1989 – importing e-cigarettes
· Section 50 Customs Act 1901 – importing nicotine e-liquid
· Section 16 Poisons and Therapeutic Goods Act 1966 (NSW) – attempt to obtain or have nicotine vaping liquid
· Section 9 Poisons and Therapeutic Goods Act 1966 (NSW) – retail sale of nicotine e-cigarettes or e-liquid
· Section 22 Public Health (Tobacco) Act 2008 (NSW) – selling e-cigarettes to minors
It was illegal to purchase vapes containing nicotine before October 2021 in NSW and NSW residents were unable to sell or purchase nicotine-based vaping products locally, but they were able to import the products from overseas. The change in Federal legislation closed this loophole and made it illegal to buy or import vaping products containing nicotine from overseas suppliers without a valid medical prescription.
If police to wish to speak to you regarding the purchase or sale of any vape or e-cigarettes, you should speak to our drug offence lawyers in Sydney.
Offences and Penalties: Using or Buying Vaping Products in NSW
Are vaping products legal in NSW? Vaping products without nicotine are legal in NSW. It is legal in NSW for adults to use and buy vaping products that do not contain nicotine.
Possessing Vaping Nicotine Products
If a person possesses or attempts to obtain a restricted substance, such as nicotine vaping products and does not have a prescription from a medical professional, the person may be committing an offence under NSW law. Section 16 of the Poisons and Therapeutic Goods Act prescribes the offence of possessing vaping products containing nicotine as a restricted substance.
The maximum penalty for the offence of possessing a restricted substance is a fine of $2,200 and/or 6 months imprisonment.
Selling Vapes or Electronic-cigarettes to Minors
It is illegal to sell vapes to a person under the age of 18 years or on behalf of a person under the age of 18 years. A person will be charged with an offence under Section 23 of the Public Health (Tobacco) Act.
The maximum penalty for the offence of selling vapes to minors is a fine of $2,200.
Vaping around Children in a Vehicle
It is illegal to vape in a car when children under the age of 16 years are present. The police will issue the offender with a penalty notice of $250. The driver of the vehicle or any other passenger over the age of 16 can be charged for vaping whilst children are in the vehicle under Section 30 of the Public Health (Tobacco) Act.
The maximum penalty for this offence upon conviction is a fine of $1,100.
Vaping in Non-Smoking Designated Areas
It is illegal to vape in designated non-smoking indoor or outdoor areas. These areas usually are:
· Public Transport
· Office Buildings
· Restaurants
· Near children’s play areas
The penalty a person may face for vaping in non-smoking areas is a penalty notice of $300 or a maximum penalty of a $550 fine upon conviction.
Offences and Penalties: Selling and Manufacturing of Vaping Products in NSW
NSW Health may prosecute retailers for selling vapes or e-liquid products containing nicotine. The offences and penalties are regulated under the Public Health (Tobacco) Act 2008 (NSW) and the Public Health (Tobacco) Regulation 2016 (NSW). NSW Health enforces retailer compliance regarding the sale of illegal vapes and sale of e cigarettes that contain liquid nicotine. These illegal vaping products containing nicotine are immediately seized and retailers face prosecution.
Selling Vape Products Containing Nicotine in NSW
It is illegal to sell vape products containing nicotine in NSW. NSW Health inspectors visit tobacco retailers and vaping stores to ensure products containing liquid nicotine are not sold to the public. It is legal for retailers to sell vapes or e-liquids that do not contain nicotine to people over the age of 18. However, retailers can be prosecuted for selling vapes or e-liquids containing nicotine.
The maximum penalty a retailer face is $1,650 or 6 months imprisonment or sometimes both.
Retailers have to ensure they do not commit the following offences:
· Vape or e-cigarettes and all accessories cannot be seen by the public from inside or outside the store
· Vapes or e-cigarettes can only be sold from a single point-of-sale station in the store
· Vapes or e-cigarettes cannot be sold from temporary or mobile premises
· Vapes or e-cigarettes cannot be carried and sold to any person in a public place
Offences and penalties under the following sections in the Public Health (Tobacco) Act 2008 are:
Offence | Maximum Penalty Individual | Maximum Penalty Corporation |
Section 10 Selling tobacco or vape products from more than one point of sale
| $11,000 | $55,000 |
Section 21 Manufacturing or selling tobacco or vape products designed for consumption otherwise than smoking
Selling confectionary, food, toys, amusement, or any other products that resemble tobacco or are packaged to resemble tobacco
| $55,000 (first offence)
$110,000 (second or subsequent offence) | $110,000 (first offence)
$220,000 (second or subsequent offence) |
Section 29 Selling a prohibited tobacco or vape products
| $55,000 (first offence) | $110,000 (second or subsequent offence) |
Section 35 Engaging in tobacco retailing while prohibited
Section 36 Displaying prohibited tobacco and other smoking products
| $55,000 (first offence)
$110,000 (second or subsequent offence) | $110,000 (first offence)
$220,000 (second or subsequent offence) |
It is illegal to display any promotional vape or advertisements or participate in any in-store promotions to promote the purchase of any vaping product. Some vape retail stores are exempt from this law. A store owner cannot:
· Distribute free vape samples
· Promote a vape product, trademark, or brand name through scholarship
· Include vape products in any shopper loyalty programmes
· Sell any toys or sweets that resemble any vape or e-cigarette products
It is illegal to make any therapeutic claims about vaping products if they are not registered with the TGA or Therapeutic Goods Administration. It is illegal to sell or supply vapes if a label, poster, or website claims the product will help a person quit smoking. This also applies to verbal statements from salespeople.
The maximum penalty for these offences is a fine of up to $440,000 or five years imprisonment.
Retailers selling any vaping products need to:
· Register their business details online with NSW Health
· Retailers specialising in vaping products and only selling vaping products may apply for an exemption to use vapes in their stores. Retailers who also sell tobacco or other products are not eligible for an exemption.
If you require any legal advice or representation in a vape-related legal matter contact, a criminal defence lawyer at Lyons Law Group for expert advice.
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