Navigating updates to Vaping Regulations and New Zealand's Tobacco Reforms

New Zealand's comprehensive approach to becoming a smokefree nation by 2025 is leading to a significant transformation in the country's tobacco and vaping industry.

What is Smokefree 2025?

In 2011, the New Zealand Government set a goal that by 2025 fewer than 5% of all Kiwis will be smokers.

On 9 December 2021, the Ministry of Health launched the ‘Smokefree Aotearoa 2025 Action Plan’. The plan details six key areas of action called ‘focus areas’ and defines three key achievements required for Smokefree 2025 to be successful:

1. Eliminate inequities in smoking rates and smoking-related illnesses
2. Create a smokefree generation by increasing the number of children and young people who remain smokefree
3. Increase the number of people who successfully quit smoking

Importantly the now Minister of Health, Hon Dr Ayesha Verrall, wrote that “New Zealand’s goal is for less than five percent of all groups of New Zealanders to smoke daily by 2025” in the Associate Minister’s Foreword of the action plan.

The plan also specifically noted that “The prevalence goal is for smoking; it excludes vaping and the use of smokeless tobacco products”, furthermore, the plan acknowledges that vaping provides “those who are not ready to quit [smoking], or are unable to, now have an alternative at much less cost and risk to health.” “The changes to the legislation to regulate vaping products intend to strike a balance between preventing the uptake of vaping among children and young people and supporting people who smoke to switch to a less harmful product (and thereby contributing to our Smokefree 2025 goal)”

We think it is safe to say that if not for vaping the 5% goal would still be far from reach – our Ministry of Health understands this and promotes vaping as an alternative to smoking. Smoking rates have halved since 2015, NZ’s first vape shop opened in 2013. Still there is a lot of work to be done for our country to achieve this goal for all groups as 2021/2022 data shows only Asian adults smoke at lower rates than 5%:

Source

The Timeline: What's Happening and When

Vaping

On 4 January 2023 Proposals for the Smoked Tobacco Regulatory Regime were published and submissions were due on 15 March 2023. The focus was mainly on Tobacco, but some proposals were made to extend “vaping packaging and product restrictions”. Relevant excerpts from the proposals are as follows:

1. Flavour names

2. Safety requirements

3. Proximity restrictions

At the post Cabinet media briefing on 6 June 2023, Prime Minister Hipkins and Minister of Health Verrall made announcements updating the public on what to expect regarding the regulatory update following the above proposals, no official regulations have been published yet (these are expected in August).

The Prime Minister framed the regulatory changes in the context of discouraging youth uptake but also ensuring adult ex-smoker access to vaping products. He also acknowledged that “vaping has played an important role in the record reduction of New Zealanders smoking over the last few years”. The Ministry of Health also published an update on its website the same day with an overview of the policies approved by Cabinet.

The announcements lacked key specifics that are relevant to the vape industry and given that the official regulations have not yet been updated it is difficult to draw meaningful conclusions.

What we know for sure is that:

• Specialist Vape Retailers will no longer be allowed to open within 300 meters of schools or marae
  • But, will this be 300m from the entrance? Or the boundary perimeter?
  • Shops registered before the regulatory change will be allowed to continue operating.
• Flavour naming restrictions will be introduced
  • Under the scenario described in the proposal names like: Wine gum, Gummy Bears, Cotton Candy, & Bubble gum would all need to be renamed as Candy.
  • The example given by the Minister was that something like 'Strawberry donut' may be replaced with 'berry'
    • However, it is unclear if all flavour types are impacted or just those with “words that appear to be designed to appeal to young people”. It is also possible that brand names will be impacted too.

• “All vaping devices sold in New Zealand will need to have removable batteries so as to improve their safety”
  • The proposal document indicated that to prevent the risk of battery failure/explosion the battery would need to be able to be inspected.
    • It is not clear how the regulator will define “removeable” or “battery”, but, if the regulations are to be written in a way that ensure the ability to inspect the battery itself (as per the stated goal), it is likely that the majority of devices on the market today will need to be phased out (including all currently available single use vapes, closed pod systems, and most low wattage re-fillable devices).
  • It is possible that requiring a battery to be removable could reduce safety rather than improve it.
• Vapes must have child safety mechanisms
  • The Prime Minister said that “reusable vapes must have child safety mechanisms”
    • However, the Ministry of Health website update included all vapes for this requirement - it is possible that given all devices will have a removable battery that they consider all devices to be reusable and therefore it is not necessarily a contradiction.
  • An example of a child safety mechanism might be a button that the user must push a certain number of times before the device can activate.
• “These changes will be phased in over the next 6 months to give the industry time to adjust to the new law.”
  • Media have reported that “from August there will be a lead-in time of three months for disposable vapes and six months for reusable vapes to be compliant with the law.”
    • However, we have not seen this stated by official channels so it is possible that more reasonable timeframes will be announced in August along with confirmed regulations.

• The “maximum nicotine strength allowed in single-use (disposable) vapes to be reduced so they are less addictive”
  • It is probably safe to assume that the limit for non-refillable products will be 35mg/mL of nicotine salt as suggested in the proposals.
• There were some proposals that were notably absent in the recent official communications, and although unlikely, it is possible they will appear in the regulations:
  • Substance container labelling clarifications
  • Serial/batch numbers on single-use devices

A few more interesting points from the press briefing:

• Asked why they were not made prescription-only, Verrall said she was aware this was a proposal being explored in Australia. "We received feedback against that from some doctors in New Zealand but also, our laws have to be right for New Zealand."
• Plain packaging was considered but they decided not to implement
• Hipkins wants vapes to be more expensive, he said: "It's one thing to make it expensive and difficult for young people to start and carry on vaping - which is what these actions are designed to do - it's another that would be to do something that gets in the way of adults who are using vaping as an alternative to smoking, something that we support."

On 12 June 2023, the Ministry proposed to clarify how nicotine levels for vaping products are expressed in the Smokefree Environments and Regulated Products Regulations 2021. Consultation closes on 26 June 2023, given the notably short timeframe and that this clarification is effectively not changing the regulations we believe it is likely to be included in the August regulation update.

They said: “Manatū Hauora is aware of some confusion regarding the interpretation of clause 15 of Schedule 5 of the Regulations relating to vaping products. This clause states that the strength of nicotine salt in a vaping substance must not exceed 50mg/mL.

The confusion arises because nicotine ‘strength’ levels for products containing nicotine salts can be described in two ways. It could describe the concentration of the nicotine salt in a vaping substance, OR the concentration of freebase nicotine in a vaping substance.

We propose to amend the wording of the regulations to always refer to the maximum nicotine concentration of a vaping product, rather than the maximum permitted nicotine salt concentration. 

For reusable vaping products that contain nicotine salts, we propose setting the maximum allowable nicotine concentration at 28.5mg/mL.”

This relates back to an email from the VRA that was widely circulated to many notifiers and retailers in October last year.

The VRA’s email said:

“Schedule 5, Part 1, section 15 of the Regulations states that “the strength of nicotine salt in a vaping substance must not exceed 50 mg/mL”".

And:

“This 50 mg/mL limit in vaping substances refers to the permitted concentration of nicotine salt in a substance, not the concentration of nicotine. The quantity of nicotine (the specific chemical compound rather than the salt chemical compound) allowed in a vaping substance must be substantially lower than 50mg/mL. For example, the maximum permitted nicotine concentration in a vaping substance containing fully dissolved nicotine benzoate would be 28.5 mg/mL.”

We have always maintained the same interpretation as the VRA, therefore our 50mg/mL nicotine salt products contain an equivalent nicotine freebase content of 28.5mg/mL and will not be impacted by the clarification.

The following table shows the difference between freebase nicotine and nicotine salt (salts come in many different forms, this example is for Nicotine Benzoate):

As an example,

How tobacco reform will continue to impact vaping

There are two major changes announced by the Ministry of Health that will have significant impact on smoked tobacco sales over the next few years.

The first involves a dramatic 90% decrease in the number of locations tobacco can be sold in nationwide, from 6000 retailers to just 600 licensed tobacco retailers – “The scheme takes effect from 1 July 2024”.

The second, with the most significant impact, is the decision to limit nicotine content in smoked tobacco products. Currently, full-strength cigarettes contain approximately 15-16mg/g of nicotine; this will be reduced to a maximum of 0.08mg/g by 1 April 2025 – a 99.5% reduction​. This essentially amounts to a ban on nicotine in cigarettes.

While these changes are primarily aimed at smoked tobacco, they are expected to have substantial ripple effects on the vaping industry. The drastic reduction in nicotine content in cigarettes will drive more smokers to consider vaping as an alternative, given that the nicotine delivery through vaping can be more easily controlled and tailored to individual needs.

Lion Labs: Committed to Compliance and Quality

In this period of regulatory transition, we want to assure you that Lion Labs is committed to ensuring compliance with all regulations and continuing to provide top-quality vaping products to our customers. We are working diligently to adapt to these changes and are prepared to navigate the evolving landscape of the vaping industry in New Zealand.

While we await the full details of the August 2023 updated regulations, including clarification on the definition of "removable battery" and more information about the potential disposable vape ban, we are proactively preparing for the changes to ensure a smooth transition for our clients. We plan to work closely with our customers, assisting and guiding them through the changes once operational details are announced. We are also committed to keeping you informed and providing detailed updates once the regulations are made public.

Looking Forward

In anticipation of the potential ban on disposable vapes, we expect to see a peak in demand for these products as customers may seek to stock up before the regulation comes into effect. This shift could result in an increased demand for vaping products, a trend that we at Lion Labs are ready to meet. We are closely following these changes and aligning our strategies to ensure that we continue to provide high-quality, compliant vaping products.

As the nicotine reduction in smoked tobacco takes effect, it's likely that vaping will play an even more significant role in New Zealand's smokefree journey. This could be a pivotal moment for vapers and vaping businesses alike, creating opportunities for growth and innovation over the next few years.

Once the new regulations are released in August, there will be a transition period to sell down non-compliant stock. This grace period will provide an opportunity to transition smoothly to the new regulatory landscape without significant disruption to your business or vaping experience.

Rest assured, we at Lion Labs are ready to meet these opportunities head-on. We will continue to provide high-quality, compliant vaping products, supporting our customers through these changes and contributing to a healthier future for all.

Stay tuned for more updates