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New vaping laws will be introduced from 1 October, with changes aimed at regulating the supply and manufacture of vapes.

However, there has been criticism of the new reforms as well as the government’s ability to adequately enforce them.

When are Vapes Getting Banned in Australia?

Disposable vapes, whether they contain nicotine or not, have been prohibited products from January 2024. You cannot purchase a disposable vape from a retailer nor import one from overseas, even if you have a prescription.

Disposable vapes are defined as products ‘that are pre-filled with a vaping product, cannot be refilled and are disposed of once the battery or vaping product runs out’. They are regulated by the Therapeutics Goods Administration (TGA).

Can you bring a Vape into Australia?

You can bring up to two vapes into Australia. The vapes must be declared at customs when entering Australia.

You can bring up to 20 vape accessories (including cartridges, capsules or pods) and 200 mL of vape substance in liquid form.

Importing Vapes Offences

As of March 2024, all vaping products, including reusable vaping devices, are prohibited imports into Australia, unless an import license and permit is obtained.

Furthermore, the importation of all vapes under the personal importation scheme will end – patients, irrespective of a prescription, will no longer be able to order any vapes, directly from overseas.

Travellers entering Australia will be banned from bringing vapes into the country, other than for their treatment or the treatment of someone they are caring for, subject to strict quantity limits.

Section 9L of the Therapeutic Goods Act 1989 (Cth) makes it an offence to import, as well as export, manufacture or supply a prohibited therapeutic good.

What is the penalty for importing vapes?

The maximum penalty for importing vapes to Australia is $93,900 for individuals.

Section 223 of the Customs Act 1901 outlines an offence where a person:

• Smuggles any goods; or
• Imports any prohibited goods; or
• Exports any prohibited goods; or
• Unlawfully conveys or has in their possession any prohibited goods.

The maximum penalty for importing or dealing with a prohibited import under this section is a fine of up to three times the value of the goods, or up to $275,000 – whichever is greater.

Vaping products may also constitute a ‘tier 1 good’ under section 233BAA of the Act which applies to non-narcotic drugs intentionally imported contrary to the Customs Act. This offence carries a maximum penalty of 5 years imprisonment, or a fine of $275,000 or both. A specialist drug lawyer will be able to advise you about how to defend these charges.

Is Vaping Illegal in Australia?

There is no explicit criminal offence related to vaping or possessing a vape in Australia. From 1 October 2024, therapeutic vapes with a nicotine concentration of 20mg/mL or less can be purchased from a pharmacy if you are over 18 years without a prescription if a pharmacist assesses this to be clinically appropriate.   

There are however restrictions on using a vaping product in ‘smoke-free areas’ including:

• All indoor public places.
• Outdoor public places:
  • Within 10 metres of children’s play equipment in outdoor public places.
  • Public swimming pools.
  • Spectator areas at sports grounds or other recreational areas used for organised sporting events.
  • Public transport stops and platforms, including ferry wharves and taxi ranks.
  • Within 4 metres of a pedestrian access point to a public building.
  • Commercial outdoor dining areas.
• In a car with a child under 16 years of age in the vehicle.
• On public transport vehicles including trains, buses, light rails and ferries – Passenger Transport

Vaping within a smoke-free area will result in an on-the-spot fine of $300.

New Vaping Laws

Under the Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Act 2024 on 1 July 2024:

• Non-pharmacy retailers such as tobacconists, vape shops and convenience stores cannot sell any type of vape.
• Therapeutic vapes that meet TGA requirements will continue to be available from pharmacies where clinically appropriate.
• Anyone involved in transporting, storing or handling vapes must comply with strict requirements.
• The advertising or promotion of vapes is prohibited, except where specifically authorised.
• Importers and sponsors continue to be required to hold an import licence and permit from the Office of Drug Control and meet relevant product standards.

Until 30 September 2024, patients need to speak with a medical or nurse practitioner to:

• Get a prescription to buy vapes containing nicotine, and;
• Access zero-nicotine vapes.

From 1 October 2024, therapeutic vapes containing nicotine or a zero-nicotine substance will be available for supply in pharmacy settings to patients 18 years or over without a prescription. Until 30 September 2024, patients need to speak with a medical or nurse practitioner to:

• Get a prescription to buy vapes containing nicotine, and;
• Access zero-nicotine vapes.

Problems with Enforcement

A review of all criminal charges brought by NSW Health against people and businesses convicted of illegally selling nicotine vapes over an 18-month period from July 2022 revealed just 12 successful prosecutions.

Seven of the shops continued to stock illicit vapes after they received a warning, had their products seized or were convicted in court and it was found fines were disproportionate to the profits associated with vapes in the market.

This suggests a lack of ability or willingness to enforce the new vaping laws in NSW. If you have been charged with an offence relating to vaping, you can contact experienced criminal lawyers in Sydney for advice on any defences available to you.