Smokefree Environments and Regulated Products (Vaping) Amendment Bill

I move, That the Smokefree Environments and Regulated Products (Vaping) Amendment Bill be now read a second time.

I want to start by thanking the chair of the Health Committee, Louisa Wall, and all of the members of the select committee for your diligent work on this bill. This is a large and complex bill that amends the Smoke-free Environments Act 1990 in order to better regulate vaping and heated tobacco products in New Zealand. I’d also like to thank and acknowledge all the members of the public who submitted on this bill. I know that taking time to make a submission would have been more challenging during COVID-19.

It’s been clear to me that this is a bill that the public cares deeply about, and the select committee process has proven no different. The committee received over 1,200 written submissions—

ASSISTANT SPEAKER (Hon Ruth Dyson): Sorry. I wonder if members could show the Minister some respect and talk to each other in the lobbies or really quietly—both sides of the House, thank you. Sorry to interrupt the member.

The committee received over 1,200 written submissions and heard 84 oral submissions from a wide range of submitters. This included submissions from vaping consumers, businesses, Māori and Pacific organisations, health academics, practitioners, and the health sector in general. The bill was generally welcomed by submitters, and it was clear that most believe that these regulations are important, necessary, and generally were striving for the same goals.

It would be fair to say that we all want to see New Zealanders who are suffering from and dying from smoking-related diseases as something that is decreased in our country, that we’d like our children and young people to have healthier parents and grandparents who stay with us for longer, and that we all want to prevent our young people from using vaping products—and this means ensuring that they aren’t attractive to, or easily accessed by, our children and youth.

So the committee had a difficult task of trying to ensure that this bill strikes the right balance between supporting smokers to switch to less harmful alternatives, like vaping products, while, at the same time, protecting young people and non-smokers from the risks associated with these products.

I won’t highlight all the changes recommended by the committee, but I will just briefly summarise some of the key changes that I believe will be of interest to most submitters and the House tonight. Many submitters were deeply concerned that generic retailers, such as dairies and supermarkets, would only be able to sell vaping liquids in tobacco, menthol, and mint flavours. They felt that reducing smokers’ access to a range of vaping flavours would negatively affect their ability to transition and maintain their transition to vaping, and may have significant negative impacts as well on generic retailers.

These are valid concerns. However, we must remember that we have the difficult task of balancing two goals within one bill: supporting smokers while, at the same time, protecting our young people and children and New Zealanders who are non-smokers and who have not taken up vaping ever before. The committee reports that it’s necessary to keep the restrictions on flavours if we are to reduce the attractiveness and accessibility of vaping products, especially to our young people. However, if any future Governments wish to make changes to the flavours that can be sold by generic retailers, they can easily do this through regulations.

I’ll turn now to advertising. I’m glad to see that the bill continues to prohibit major media advertising of vaping and smoking-tobacco products. It is not appropriate for our young people to see these addictive products being advertised on television, radio, or billboards. I’m also pleased to know that some submitters provided helpful comments and suggestions on advertising. Submitters stressed that quitting smoking is hard and a personal journey that is challenging and that we as Government need to ensure that smokers have access to accurate and tailored information to tools and support that will help smokers successfully transition to less harmful products, including vaping. The committee has also listened to these concerns and suggestions, and responded by making some technical and practical changes to the advertising provisions in the bill. For example, the bill has been amended to clarify that regulations will prescribe the information that can be provided to customers by both generic and specialist vape retailers, which was the policy’s intent. The committee has also added exemptions to allow specialist vape retailers to communicate to their customers about vaping products and for manufacturers and importers to provide information to retailers about how to use vaping products.

It was not intended that the bill would prevent research, expert opinion, or commentary that encourages smokers to switch to less harmful alternatives. So the committee has also added additional exemptions for these purposes.

There were some submitters that had other concerns about the bill, namely the implications that it would have for vaping retailers. They believed that specialist vape retailers should be able to sell their products online and that requiring specialist retailers to derive at least 85 percent of their sales from vaping products may not be realistic for some of these stores. These are fair comments, and the committee has clarified in the bill that specialist retailers can indeed sell their products online if they also have a bricks and mortar store. The committee has also lowered the sales threshold for specialist vape retailers from 85 percent to 70 percent. Stores that derive 50 percent of their sales from vaping products will also be able to trade as specialist vape retailers for a transitional period of 12 months. This will provide retailers with enough time to decide if they would like to become a specialist vape retailer after 12 months and adjust their business model accordingly.

I understand concerns were also raised about the impact that the bill has on the vaping market more broadly. Some submitters felt that the industry needs more time to be able to comply with the bill and were concerned, in general, about the extent and range of powers that the Director-General of Health will possess in relation to product safety, to ingredients, and to a small number of advertising provisions. The committee agreed that it is fair and reasonable for the obligation to comply with the product safety notification regime to come into force 12 months after the Royal assent, rather than six months, in order to ensure that the industry is in a good place to comply with the bill.

In terms of the powers given to the director-general, they are necessary powers. For instance, we need the Director-General of Health to be able to act quickly to protect the public health if he is satisfied that a product or an ingredient may be causing harm. This is ultimately an issue of safety, so the powers given to the director-general must remain. The committee has also accepted, however, that there is a need for greater transparency, consultation, and safeguards to protect the industry, given the impact that the Director-General of Health’s decision can have on the livelihoods of people working in the industry. A number of amendments have been made to support this. For example, where the director-general has suspended or cancelled the sale of a vaping or smokeless tobacco product, the manufacturer or importer of that product now has a right of appeal to the director-general’s decision. Another amendment enabled the director-general to establish a technical advisory committee to assist in their decision making and exercise of powers.

Finally, I want to bring it back to our aspirations as a Government and what this bill is trying to achieve. We’re an ambitious Government and we have high aspirations for the wellbeing of our tamariki, children, and young people. We’ve even set ourselves a goal of making New Zealand the best place in the world to be a child and would like our children to be New Zealand’s first smoke-free generation. I strongly believe that this bill moves us further along that path in helping to reduce the number of New Zealanders who smoke and die from tobacco-related diseases and ensuring that our young people don’t find vaping products attractive and easily accessible. I commend this bill to the House. Thank you.

Thank you, Madam Speaker. National supports this bill because we believe that vaping is a real game-changer. It’s a game-changer in terms of helping smokers to quit, but also it’s a game-changer in moving us forward on the New Zealand Smokefree 2025 goal. I first discovered vaping back in 2016, and after taking advice from the Ministry of Health and reviewing the use of e-cigarettes and vaping overseas, I prepared a bill to regulate vaping—I was the Associate Minister of Health at the time. What we discovered was that e-cigarettes and vaping had been available in the UK, Europe, and the US for over a decade, and because they are significantly safer than tobacco, they’d helped millions of people quit smoking.

We also overseas saw overseas that where vaping had been regulated—regulated with an R18 restricted purchase age, quality controls, and minimal advertising—it had mainly been embraced by smokers, and young people had not been attracted to the product, and we saw this particularly in the UK. However, where they were societies that had few rules, such as in some of the states of the US, and young people had easy access, they were bombarded by advertising, and that had encouraged them to take up the habit. So I absolutely support the Government’s move. It is our job in New Zealand to regulate the sector so that vaping is still attractive and available to smokers to help them quit, but it must be less attractive to young people, and I think this bill mostly does that.

The timing of the bill is unfortunate. Firstly, the select committee process was truncated, and also it was held during the time of the COVID-19 lockdown. I believe that the legislation as written has several parts which have got unintended consequences which will actually weaken the bill, and I have provided three Supplementary Order Papers (SOPs) to correct these unfortunate, and I think unintended, consequences. So I just want to talk through those SOPs so that when we come to the committee of the whole House, people will be able to vote for them.

The first is SOP 536, and this concerns the qualification of becoming a specialist vape retailer. You’ve heard from the Minister that specialist vape stores can promote and sell a whole range of vaping products, including a full variety of flavours, but non-specialist vape stores—and they will tend to be local stores, petrol stations, and dairies—can only sell tobacco, menthol, and mint flavours. These are the flavours that actually are not the best-selling flavours, and they’re not the flavours that necessarily appeal to young people. The policy intent of this is to reduce the attractiveness of vaping to non-smokers.

Now, to qualify to be a specialist vape store, 70 percent of your store’s turnover must come from vape products. I agree that this is appropriate in most cases, but there are a number of well-established specialist stores that also sell other products, and so it’s difficult for them to get that 70 percent turnover for vape products. I’ll just give you an example of one of the chains, the Cosmic group, which was one of the very first stockists of vape products. It was the first store to voluntarily bring in an R18 age restriction, and it is a respected expert in the sector, so much so that the Minister actually sought advice from the company when they were seeking to regulate the vaping sector. At the moment, they provide vaping products and advice to over 250,000 New Zealanders, so they are indeed a specialist store, and I think it really is an unintended consequence that these types of responsible, experienced, and expert vape businesses are not considered specialist vape stores in the legislation.

So I have come up with a solution. My SOP 536 says that the 70 percent threshold should remain because it makes sense, but there is an alternative mechanism to allow businesses that meet 50 percent vape sales but are considered responsible retailers. There’s a series of things that they would have to be able to tick off to be a responsible retailer, and that would be approved by the Director-General of Health. I really don’t believe we should be excluding experienced and responsible specialist stores just because they don’t fit the cookie-cutter retail model that we are normally dealing with.

I think it’s interesting, because the way the legislation is written, any ratbag supplier or retailer who wants to open a store with no history of being responsible, no history of any knowledge, or advice, even, can open a store and sell 100 percent vape, and that’s not what we want. That threshold is really a proxy to say that these cover enough turnover, that they are respected and can give good advice, and that they will be part of the sector and support people to give up smoking. So I think it’s really important that we do actually allow somebody with a slightly different retail model to be able to trade.

The next one, which is SOP 537, concerns alternative non-tobacco nicotine delivery devices. Now, during the select committee process, 53(2A), in clause 26, was inserted in the bill, which bans oral nicotine products. Now, when you consider that the stated purpose of the bill is to support smokers to quit by providing less damaging alternatives to cigarette smoking, it seems rather odd that this would be the case, that we would ban these alternatives. Interestingly enough, because this clause was not in the original bill, there were no opportunities for submissions on it, and the issue was not discussed or debated. So it’s been put in out of the blue, and it seems to be at odds with the purpose of the bill.

So my SOP deletes this section, because there are already products in the market that are helping people quit which would be banned. For example, these nicotine pouches—they are used by at least 10,000 New Zealanders, and there is absolutely no evidence that they are attractive to young people. Now, nicotine pouches are placed in the mouth next to the gum, and the nicotine is absorbed through the oral mucosa rather than inhaled, so it’s not damaging, and the New Zealand Ministry of Health has already agreed that nicotine pouches are far less damaging than smoking cigarettes. Now, it’s interesting, because a similar product used in Sweden is directly responsible for that country having the lowest cigarette consumption in Europe, by far the lowest lung cancer mortality, and the lowest percentage of smoking-related deaths in any developed country. So why in the world would we ban a product that can do that? Nicotine pouches also have specialist users. They were introduced to New Zealand by military people because they are useful and significantly safer than cigarettes for soldiers when they’re in action. In talking to the Minister of Defence, the Hon Ron Mark, he has confirmed that he believes soldiers should be able to have access to the product.

My final SOP is 545, and this is about community help groups, which have been particularly successful in promoting vaping to help smokers quit. A good example of this kind of group is a programme called Vape2Save, and that’s been working very closely with Māori women. Māori women are a cohort that has the highest smoking rate in the country, and it is difficult to reach those people through traditional quit smoking programmes. Vape2Save has produced spectacular quit rates. Now, the current bill only allows the promotion of vaping to help people quit smoking to be done by a qualified health worker, so Vape2Save would not be able to operate because it uses volunteers and peer supporters—and I think that’s why it’s been so successful. My SOP 545 provides an exemption for community health groups when they have been authorised by the director-general and the message has been approved by a qualified health worker. We don’t want to lose these community programmes, especially when they’re getting great, quick results in communities that have stubbornly high smoking rates.

I think this bill is extremely important to public health. With nearly 5,000 New Zealanders dying every year from smoking-related diseases, we need to make every effort to help smokers quit. I support it passing as soon as possible. Thank you, Madam Speaker.

Thank you, Madam Speaker. It’s a real pleasure to stand in support of this bill. This is an incredibly important bill, particularly for our children and young people, but also for older New Zealanders. I think the fact that over 1,200 submissions were received during this period shows that it’s really important to New Zealanders as well. We heard 84 oral submissions and we heard these during lockdown, and, actually, as a process it worked incredibly well. We had some wonderful conversations with a whole range of people, ranging from retailers to public health experts to people working in vape shops, and they told us a lot of important things around vaping and how we could improve the bill.

The issue with the bill is that it tries to balance, and does it quite well, two separate aspects. One is that it wants to prevent young people taking up vaping and taking up smoking. So what it does is it bans sales to those under 18, but it also restricts advertising and it also restricts the flavours available in generic retailers like dairies to three flavours: menthol, tobacco, and mint. But on the other hand, what we also need to be thinking about is how we can assist those who are smoking to transition to less harmful products. So in that respect, what we heard is incredibly important, again, for smokers to have access to a whole range of different flavours and also to the expertise in specialist vape shops to take them through the different products and what would suit them best.

A lot of the debate within the select committee focused on how we balance that, and much of that focused around flavours. And in the debate really, we heard a lot of submissions saying, “No, we don’t want to be able to have any vaping products or flavours in generic retailers.” Others agreed with the three flavours that we have proposed. Others, though, said that fruit flavours and dessert flavours were important in assisting smokers to transition and we should expand the range of flavours. So there was quite a lot of debate there on where we needed to land, and as a select committee we transitioned this debate and felt in favour of preventing the uptake by young people. And so we ended up landing on wanting to stay with those three flavours as proposed, but also noting that regulations could be subsequently made down the line, which would expand those.

We also had quite a bit of discussion around what was a specialist retailer and what proportion of sales should be adjusted with vape products, because the bill as introduced was 85 percent. But where we ended up was saying, no, we can reduce that down to 70 percent, because the feedback was from many retailers that 85 percent was too high. And we also introduced a transition period so that vape retailers could, for the first 12 months, actually have about 50 percent of their sales with vape products, and then moving up to 70 percent after 12 months to allow transition.

This is an important bill, and I think we landed on the right balance between stopping young people taking up vaping but also allowing flavours and access for those who want to transition to less harmful products. So I commend this bill to the House.

Thank you very much, Madam Speaker. How good is the Hon Nicky Wagner, I thought—a fantastic speech—who has clearly outlined the research she has taken in this area. She is someone who will be missed in the new term with her new-found knowledge of vaping, and she was able to clearly articulate to this House about the clear deficiencies we see in this bill that we are debating today in its second reading.

The irony is that if we accept the Hon Nicky Wagner’s three Supplementary Order Papers (SOPs) that will be debated in the committee of the whole House, then we will be accepting the bill that the Hon Nicky Wagner first proposed 2½ years ago, if not three years ago. So then it poses the argument of why are we here two weeks before the House rises to, ultimately, it sounds like, accept the SOPs that Nicky Wagner has put on the Table, to end up with a bill that we had three years ago.

💬 Hon Maggie Barry: Remarkable.

It is. It is very remarkable, and it’s not surprising. In fact, when you look at the dates for this bill, it was introduced on 24 February 2020, yet the Hon Nicky Wagner’s bill was put on the Table in around 2017. It completed its first reading on 11 March 2020 and was then referred to the Health Committee, and public submissions closed on 1 April 2020. So here we are, two weeks before the end of this term, and we are looking to end up with the same bill that we had at the start of the term.

💬 Hon Maggie Barry: Near midnight.

Magic, I’ll call it.

I must say, though, in fairness that we are in the second reading, and, as you would expect, we should be talking about the bill that came out from select committee—

ASSISTANT SPEAKER (Hon Ruth Dyson): Good—novel.

—thank you, Madam Speaker—and the process it took. I must say, it’s had a rather thorough look at. We have lifted up the hood and had a look at this, because we did receive 1,271 submissions. So we did hear, largely, from the public. What was concerning, though, was that, obviously, with the dates I outlined, we did leave it to the last minute and, unfortunately, the public submission stage did coincide with the COVID lockdown. Although, I must say we were ably chaired by Louisa Wall, who is the chair of the Health Committee, and we were, effectively, marshalled on to Zoom, as most members of Parliament were, and we were able to dispense with many of the submissions.

But what was interesting when you thematically reviewed the submissions—and, I must say, full credit to the officials, who I think have put together an excellent departmental report that looks at the feedback that we received—it’s not surprising that we did have to wade through this, because many of the submissions were actually contradictory or were taking opposing views. Many of the smaller retailers were quite rightly worried that they would be excluded, and the highly regulated products, they would not be able to sell. Clearly, we had the voice of the consumers. Many of the vapers themselves were worried that they would not be able to buy the flavours that they wanted to buy if they were restricted to specialist services. Even when you looked at issues around the packaging, it was pretty much a 50:50 split where some of our submitters agreed with standardised packaging, and then the others disagreed. Even, interestingly enough, with the issue around vape-free workplaces, whether that be in childcare, schools, or other workplaces, there was a fair amount of submitters who didn’t believe that those establishments should be vape-free, and 60 percent who did.

So I think we had a good select committee process. The over 1,200 submissions were heard. I want to thank the officials, who I think have drafted up an excellent departmental report that goes into the hundreds of pages, and I will resume my seat now in anticipation of this bill passing in its second reading so that we can move on to the committee of the whole House stage and debate the very good SOPs of the Hon Nicky Wagner.

Thank you, Madam Speaker. It’s a pleasure to rise and take a call on the Smokefree Environments and Regulated Products (Vaping) Amendment Bill. I am standing in support of this legislation because it does balance really well the prohibition on young people, our children, vaping. It’s about taking care of their health and also, too, transitioning those who are cigarette smokers, who do take a bit of the old tobacco, bit of the old nicotine, to find a tool that will help them quit. It will help reduce the comorbidities in their health and wellbeing. When you remove smoking from a person’s life, their health generally does improve. Therefore, I am in support of this legislation.

We had great discussions in the Health Committee. But I’d first like to acknowledge the Minister, the Hon Jenny Salesa, for bringing the bill to the House; the officials who worked with us on this bill; and all those submitters as well. We had around 1,200, and 84 gave oral evidence. And, as other members have noted this evening, during the lockdown period, we conducted those hearings via Zoom. Our committee was ably chaired by Louisa Wall, and we had general consensus that this is a bill that does need progressing.

I’d just like to acknowledge the Minister, who said that it is necessary to keep the restrictions on flavours if we are to reduce the attractiveness and accessibility for these products, particularly for our young people. However, if any future Governments wish to make changes to the flavours that can be sold by generic retailers, they can easily do this through regulations. That’s an important note to make. We had much discussion about flavours, whether it was rainbow unicorn flavours or berry or dessert vanilla-type flavours.

💬 Hon Maggie Barry: The unicorn.

The Hon Maggie Barry’s favourite was the unicorn, yes. In fact, I think it was all our favourite—and, really, the attractiveness of those creative names, because inside the tobacco industry, back into the 1950s, it was the creative advertisers who basically developed a new style of advertising. It was called lifestyle advertising, and we’re seeing the incredible advertising that vape companies are doing—really attractive advertising, which helps to lure young people into taking up this habit, along with creating the biggest cloud possible when they vape. That’s another attractive quality of vaping. So restricting the ability of young people to be able to purchase vapes is a very important thing.

Prohibiting the advertising of vaping products and smokeless tobacco, restricting the flavours—and the reason for the mint and menthol flavours of tobacco is that those are the flavours that most people transition from when they are smoking cigarettes, when they first take up vaping. Often it’s that tobacco flavour, or the mint or menthol, that they may have smoked when they were smoking tobacco. That’s the flavours they take up when they first vape. Then they can go to their specialist store if they’re over 18 and try those other flavours, which they then transition from that tobacco taste into something more like a dessert or a fruit.

Limiting the general retailers, including dairies and service stations, to only sell those three flavours will help ensure that the vape stores actually will have business and customers who will go there. There was much discussion around the 85 percent threshold of those specialist stores. We did ask the officials why it was set at 85 percent. It seemed like some random number plucked out of the sky, but, actually, it was to do with tobacconists. When tobacconists had a tobacco shop, they had to have 85 percent of product, and that’s where that figure came from, but we did agree in the end to reduce that down to 70 percent, and there is that one-year transition period of 50 percent.

Actually, Action on Smoking and Health New Zealand has really been engaged in the whole process of this bill and I acknowledge them and their contribution. Their director, Deborah Hart, said that “We are delighted that the Bill acknowledges the role vaping has in dramatically reducing the harms of smoking … it also discourages children and [young people] from vaping.” They make a great contribution to society. They also mentioned that the rapid rise of smoke-free nicotine products, especially vaping, is the most disruptive influence on smoking in decades. It really is a game-changer. That is what we need, this quit tool to help us reach those smoke-free targets. These products are challenging the smoking tobacco stranglehold on the nicotine market.

I’d like to leave my contribution there. I commend this bill to the House.

Thank you, Mr Speaker, for the opportunity to take a short call on the Smokefree Environments and Regulated Products (Vaping) Amendment Bill. In doing so, I want to acknowledge the Hon Nicky Wagner who has spearheaded this issue from the National Party by putting her own member’s bill forward, which the Government has then, essentially, taken up and is shortly going to fix to ensure that it is essentially a carbon copy of the piece of legislation that she put forward in the first place.

The unfortunate thing which has happened here is that the Government has dithered and delayed when it comes to regulating vaping products in New Zealand; has allowed the industry to grow substantially, has allowed our young people to get access to these products, and this has caused untold harm and caused all sorts of issues up and down our country. That is an indictment on this current Government, which is now trying to pass this legislation in its dying days of Government, here in July, only two months out from the election where they will be kicked out of Government.

This bill is being put forward as some way to achieve our smoke-free goals of 2025. Well, New Zealanders know there’s a referendum coming up at this election to legalise marijuana and to have smoking for marijuana. So we’re going to have a goal to get to Smokefree Aotearoa 2025, and on the other hand we’re going to be putting it to New Zealanders to legalise marijuana—

💬 Hon Tracey Martin: No, nothing to do with vaping. Good on ya.

Oh no, well I hear some complaints. Well, maybe you’ll be able to vape marijuana as well. Oh, but you’ll also be able to have the edibles—the edible products. So it won’t just be vaping or smoking; it’ll be the edible products, and there’ll be the lollies and the cakes and there’ll be all the other products as well.

But anyway, this bill has gone through a robust select committee process, and I’m proud of the work that has been put into it. It is a pity, though, that it took so long for this Government to actually prioritise what was something which was needed. We’ve all heard the concern from parents, from schools who get attracted by these products, the issues that are being seen in our communities, and now we have a bill which will finally bring some regulation to this important area, and I commend it to the House.

Tēnā koe, Mr Speaker. Tēnā koutou e Te Whare. The Green Party is supporting this legislation. It strikes a really good balance. It’s very important that vaping is able to be used as an effective tool to help people quit smoking. It’s also important that it’s properly regulated from a harm minimisation point of view so that we don’t have large numbers of young people targeted with advertising and finding themselves taking up a new addictive habit. So the Green Party will be supporting this bill. I commend it to the House.

Thank you, Mr Speaker. I’m pleased to stand and talk on the Smokefree Environments and Regulated Products (Vaping) Amendment Bill. Obviously, this side is supporting the bill, but I, too, want to acknowledge the Hon Nicky Wagner for the work that she has done in preparing everything and moving this particular bill forward.

Anything to reduce the number of Māori smoking, I support. This bill states that it will be a step towards helping Māori to reduce the amount of cigarette smoking, tobacco smoking, that they are currently smoking, and it does concern me a lot, especially Māori women who have very high tobacco smoking rates. I want to acknowledge Nicky for all the hard work she’s done for the three Supplementary Order Papers (SOPs) that she’s put forward for the committee of the whole House process. I think that she has been really diligent, and I have sat through a number of meetings in our caucus listening to the work that Nicky has done, and it is pleasing to see that the Government has finally started to take notice of this bill. And, as my colleague Simeon Brown has said, it is almost a carbon copy of what the Hon Nicky Wagner had put together in her bill.

We need to make sure that young people do not find, and they have done, vaping as an attractive alternative to smoking. I think it does look awful, actually. I am a reformed tobacco smoker for many years now, and to ride along behind someone who is vaping in their car and seeing all these clouds of vapour coming out, it just looked very ugly and horrible. But anything to regulate the sale of vaping products and vaping has got to garner my support and that of this side of the House. So, without any further ado, I commend this bill to the House and look forward to hearing the debates around, especially, the Hon Nicky Wagner’s SOPs. Thank you.

Bill read a second time.