Australia: E-cigarettes'' Case Goes up in Smoke Following Landmark Ruling in WA Court

Source from:  Sydney Morning Herald (au)  04/21/2014

NSW tobacco laws could be amended to specifically outlaw electronic cigarettes after a landmark legal test case in WA led to the criminal prosecution of an online stockist.

"E-cigarettes", or vaporisers, are battery-powered devices that simulate the effects of smoking by heating a nicotine liquid into vapour, which the user then inhales and exhales.

It has always been illegal to sell e-cigarette liquids that contain nicotine under Australian law but in a big development last week, the Supreme Court of Western Australia effectively banned e-cigarettes outright in the state, prosecuting a company, called HeavenlyVapours, which had been selling the dispensers and nicotine-free "e-juice" through a website.

The ruling means that anyone over 18 in WA can legally smoke a cigarette containing multiple chemicals and carcinogens, but cannot buy the electronic version which many claim has assisted thousands of smokers to quit worldwide.

Last week, the owner of HeavenlyVapours, Vince van Heerden, said of the "case law precedent" in
an online forum: "One can only imagine that the other states may now try to follow suit."

Asked about the case, the NSW Ministry of Health confirmed it was "continuing to monitor" the case and was waiting to see "whether the decision may be appealed."

In the meantime, it confirmed more than a dozen Sydney retailers were facing legal action after being caught selling illegal nicotine-laced e-liquids, late last year.

"Prosecutions are being considered for breaches of the Poisons and Therapeutic Goods Regulation 2008 and evidence has been collected," a Health Department spokesman confirmed.

Vaporisers range from imitation cigarettes that cost as little as $20, to the Romanian built Wizard Evolved DA20 which sells for $1000.

In 2011, HeavenlyVapours' premises were raided by the Western Australian Health Department over alleged breaches to section 106a of the Tobacco Products Control Act which prohibits the sale of anything such as food or a toy that mirrors a tobacco product. But in September last year, HeavenlyVapours was acquitted by a magistrate's court which ruled there was insufficient evidence that the e-cigarettes in question looked anything like traditional cigarettes or cigars, pointing out the devices could just as easily resemble a "fountain pen".

But several weeks after the case was dismissed, the WA Health Department lodged an appeal which proved successful last week with the judge determining that any e-cigarette product that involves "a hand to mouth action" and results in the "expulsion of vapour" does in fact resemble a tobacco product.

Mr Van Heerden said his legal costs to date were almost $45,000 "for something no one has ever been charged or prosecuted for before".

But he has vowed to fight on. "Common sense and dozens of studies demonstrate that e-juice consumed through e-juice/personal vaporisers do not contain the many thousands of deadly chemicals traditional tobacco cigarettes do," he said online. "We deserve the right to choose an alternative." Enditem