Smokefree Environments and Regulated Products (Vaping) Amendment Bill

Thank you, Madam Chair. It’s a pleasure to speak to this bill in the committee of the whole House and I’d like, first of all, to acknowledge the work of the Hon Nicky Wagner in getting to this and to speak to some of her Supplementary Order Papers (SOPs), which I’ll start one at a time.

The first Supplementary Order Paper in the name of the Hon Nicky Wagner I’d like to speak to is Supplementary Order Paper 536. The purpose of this is SOP is to extend the privilege for some vaping retailers to be designated as specialist vaping retailers. Now, the privilege you get with a specialist vaping retailer is several things. First of all, you’re allowed to advertise, you’re allowed to vape in store, you’re allowed to run promotions, and you’re allowed to retail, basically, the full range of flavours that are able to be vaped. In the Health Committee we spent an awful lot of time trying to figure out what those flavours should be, what would be available to a specialist vaper, what that store might be able to do as opposed to a dairy or a petrol station. And we spent a lot of time figuring that out. Should we subcategorise the flavours? Where we got to was substantively to give our intention and direction to the Director-General of Health through regulations to finally quantify that and sort that out.

But we did have this dilemma as to what the percentage of retail products should be to be a specialised vaping store. We know you’ve got to be bricks and mortar because we didn’t want online proliferation. It was a challenging question to decide and there was no overseas precedent, as I recall, and we somewhat landed mostly on 70 percent. Now, it turns out that there are a number of very reputable specialist vaping stores who have less than 70 percent of their product that is retailed as a vaping product. And so what this SOP looks to do is to reduce that percentage down to 50 percent. But there’s a safety net here, and I’ll comment to that safety net on one of the other SOPs. That safety net is they need to be responsible retailers and the director-general has the sign off on that. So the director-general has the final say as to whether a retailer can qualify for the 50 percent rather than the 70 percent and be a specialist vaping retailer. And we know that this would apply to a lot of very reputable vaping stores, which is why the Hon Nicky Wagner has placed this on the Table as an SOP.

I want to just re-emphasise because it can otherwise be lost in the bill, that very important safety net whereby the director-general will be able to take into account the reputation of someone who’s requiring or requesting to be a specialist vaper—meet that 50 percent criterion. Furthermore, it’s actually more than just reputation because how it’s written is “any other matters that the director-general considers to be relevant.” That gives him or her a large amount of authority, a large amount of scope, to say yes or no. So it really is safety protected here.

So really then my question to the Associate Minister of Health Jenny Salesa is: can she enunciate any concerns that the Government may have with SOP 536 so that we can talk them out here?

I apologise for my tardiness, but Mr Reti had jumped to his feet, so I—

💬 Dr Shane Reti: Sorry.

No, no, thank you, but I thought I’d just delay. I seek leave for all parts of the Smokefree Environments and Regulated Products (Vaping) Amendment Bill to be taken together as one debate.

Leave is sought for that purpose. Is there any objection? There appears to be none.

Thank you, Mr Chair. Before I go on to further elucidate the case for the amendment, Supplementary Order Paper (SOP) 536, in the name of Nicky Wagner, I want to just set out my relief that we’re actually having this debate now—we got there in the end. Minister, there was a high level of concern that we may not be able to pass this legislation through in this Parliament, and I’m very glad that we are. I understand that there was some nervousness about some of the amendments that could be passed, and potentially with the support of Government support parties. I don’t believe any of the amendments, should they be successful, should give cause for concern for the Government.

But I am very pleased we’re here. It’s taken a long time, and we now have an industry that is largely responsible, but which has, I think, got to the point where things like the advertising, the point of sale displays, the marketing of vaping products, is at a level that needs to be controlled. We heard in the select committee a number of concerns, particularly from young people, about the degree to which vaping products are now entry-level. They’re not only being used by people as a transition away from smoked tobacco, we’re actually hearing anecdotes from a number of young people that they are taking it up. I don’t believe the sorts of surveys that were being conducted by organisations like Action on Smoking and Health actually tell the full story; so I’m very pleased that we’re here.

Now, we did hear from a number of the vaping retailers about the degree to which their businesses would be negatively affected by the level of vaping products that need to be sold in order to be considered a specialist vaping supplier, and I think when the bill was introduced it was at 80 percent—is that right? I think it was—

💬 Hon Jenny Salesa: 85.

85 percent. Now, it was quite clear from the submissions that they could not continue to trade in the way that they were with that level of requirement for vaping supplies. Once the select committee had reported back, I think all parties also had some very good submissions from reputable vaping specialist suppliers that even the recommended level of 70 percent was going to cause considerable harm to otherwise reputable businesses, and I think one of the things we need to do is make sure that we do no harm (a) with the product but (b) with people’s legitimate businesses.

My colleagues Dr Shane Reti, Nicky Wagner, Matt Doocey, and I were very willing to listen to a sensible amendment that would be able to allow them to at least put their case to the Director-General of Health, and I think it’s really worth pointing out SOP 536 is not an automatic pass. For specialist vaping retailers to be able to be considered as such, with a 50 percent total sale from vaping products, they need to convince the Director-General of Health. So the amendment actually does maintain a 70 percent proportion for somebody to be considered a vaping product specialist, unless they can satisfy the director-general that they are a responsible retailer. I think that’s an excellent compromise. We’re not giving them a pass, but we are giving the opportunity to demonstrate that and to continue to trade, because they have been, in my view, almost entirely responsible in their self-imposed R18 restrictions that don’t currently exist in law and the importance that they place on ensuring that younger people are not lured into their stores by the attraction of vaping, and they will continue to do that.

But the bill as it’s currently shaped will prevent them from trading at all in many cases. So I do commend SOP 536. I know that the New Zealand First Party have been looking very closely at this issue, and I would be interested in an indication from them about whether or not they would support it, but I’m also very keen to hear from the Minister about why, if she doesn’t believe that SOP 536 has merit, that would be the case.

Kia orana, Mr Chair. Thank you. I’d like to begin by addressing Dr Shane Reti as well as the Hon Michael Woodhouse, because you both spoke about the Hon Nicky Wagner’s Supplementary Order Paper (SOP) 536. Can I say that the Government has introduced its own SOP. There were over a thousand submissions made to the select committee, and, as you both said, quite a lot of the submissions were about the threshold. Can I say that the Government SOP, though, covers this.

We actually don’t agree with Nicky Wagner’s SOP, but what the Government has done is we are actually sticking with what the select committee report came back with, which was to have a threshold of 70 percent of sales from retail premises, and there will be power actually given to the director-general, as you say. The Hon Nicky Wagner’s SOP actually says that that should actually go down to 50 percent of a person’s total sales.

But can I just say that one of the main things that we’re trying to do here is ensure the balance between ensuring that our young people are not attracted to vaping, ensuring that those who are non-smokers do not take up vaping, but that actually it’s available for those who are smokers and who are using it as a quit tool. So, in striking that right balance, the Government doesn’t actually agree that lowering the definition of who a specialist vape store is down to 50 percent is the right thing to do, because it will not strike that right balance.

What the Government’s SOP 567 does do, though, and I’m referring here to replacement section 14A in clause 21, is it gives the director-general the discretion to look at several things. He can look at the geographic location of the retail premises; he can also look at the population around retail premises, as well as any prescribed criteria under regulations, and he will consider 60 percent of total sales from vaping products. So I wanted to just make it clear that the Government does not agree with SOP 536, but we do cover this issue.

I’d just also like to acknowledge the Minister in the chair, the Hon Jenny Salesa, for finally being in this position to continue with this vaping bill. It’s been a long time coming, but good to be here.

I just want to add more, I guess, to the Supplementary Order Paper (SOP) in the name of the Hon Nicky Wagner, SOP 536, about that threshold. I’ve heard the comments from the Minister around why the Minister thinks the balance is 60 percent, when, in fact, there was plenty of evidence that came through as to why the limit should be 50 percent. In particular, I would just like to note a correspondence that was sent to me by Hāpai Te Hauora, who work in the coalface of supporting, particularly, Māori and Pacific communities who, as we all know, have high rates of smoking. The quote to me around supporting the SOP of Nicky Wagner, 536, to make the threshold 50 percent is around equity of access, so that whānau outside of the main centres are not limited. We have to make things equitable, and the better choice—which is vaping—the easier choice. That’s the quote from Hāpai Te Hauora.

I just want some reassurance, Minister, that the 60 percent threshold is not going to affect equity of access for those that do not live in the main centres.

The bill that we are introducing here tonight about amending vaping is actually modelled on what is happening over in Canada. In Canada, they actually have their threshold at 85 percent, and they do not have any exemptions. What we’re introducing here is a threshold that is actually lower—70 percent—and we are also already giving the power to the director-general to include things including the geographic location, the population that live around that geographic location, and the 60 percent threshold of vaping products. We believe that we’ve actually covered this issue.

I’m just a little confused. I wonder if the Minister could just clarify where in the Government Supplementary Order Paper (SOP) the threshold has been reduced to 60 percent, because I’m a little bit lost in my paperwork. Can she just confirm?

💬 Hon Jenny Salesa: New section 14A(2)(b), page 15.

So that is in SOP 569?

💬 Hon Jenny Salesa: Sorry, in the Government’s SOP?

Yep. Is that in SOP 569? Can I just clarify: the Government only has one SOP for this bill?

💬 Hon Jenny Salesa: So it’s the main SOP, yes—567.

567. Thank you. All right. While I’m working through that, I want to go on to one of Nicky Wagner’s other SOPs, and that is in regards to the issue of oral nicotine products. Now, we were somewhat talking past each other—Government to Opposition—earlier this week, and the Prime Minister was in the media on Monday or Tuesday morning saying that the reason that the Government would not support an amendment to allow oral nicotine products was that it would allow products like snus to be sold. Now, snus is a chewed tobacco product. It is not consistent with the definition that the Hon Nicky Wagner has in her SOP for oral nicotine products. I can’t remember—the Minister of Defence may be in a position to clarify this. I know that in the New Zealand Defence Force, there is another product that’s quite popular with Defence Force personnel which is oral nicotine but not tobacco. The Hon Nicky Wagner’s SOP would allow that product to continue, should the House prevail in that SOP, but it would not allow snus to be marketed in New Zealand, because that is an oral tobacco product. Her definition does not include oral tobacco, and therefore snus would not be allowed.

Now, regardless of whether the Labour Party is going to support Nicky Wagner’s SOP, I would like to hear from the Minister about whether she agrees that the definition of oral nicotine does not include oral tobacco and therefore would rule out snus, because that might clarify some of the misunderstandings from earlier in the week.

Snus is actually an item that is illegal in New Zealand. Earlier on—actually, over a year ago, in the case of the Ministry of Health v Philip Morris, it was clear from that that in terms of the vaping products, we needed to look at regulations. Unfortunately, the Ministry of Health was not the winner in that particular case, but what it also said, clearly, was that snus is illegal in New Zealand. Oral nicotine, though—it was a bit of a grey area. One of the reasons why we’re here tonight to regulate vaping is to ensure that we provide clarity and that we regulate those products that are not currently covered in the Smoke-free Environments Act 1990.

When that particular legislation was passed, these products like vaping products and all that were not actually envisaged, and it’s not actually covered by the Smoke-free Environments Act 1990. So it is really important that we get clarity and that we absolutely regulate these products that are currently not regulated.

I’m afraid that reply from the Minister was something of a red herring. She referred to the Philip Morris case. The Philip Morris case is not relevant to the question that is being posed by SOP 562. The Philip Morris case, effectively, ruled that heat-not-burn products were not unlawful, as the Ministry of Health thought, at that time. This bill is not actually going to change that. This bill, as it was introduced, and as it was returned by the Health Committee, would allow things like IQOS heat and other vaping products. What I’m talking about is oral products that are actually put inside the mouth. Now, vapes and heat-not-burn products aren’t that. So we’re not talking about that; we’re talking about oral products that are put under the tongue or in the side of the cheek.

Now, within that definition, currently nothing can be put into the mouth. That wasn’t how the bill was introduced, but that was how it was amended at select committee. What the Hon Nicky Wagner’s SOP will do is to, rather than distinguish between oral and non-oral, distinguish between tobacco and non-tobacco. So an oral product that is not tobacco would be allowed under SOP 562 if it’s passed, but it would not allow snus. What I asked the Minister was: does she agree with that definition? It’s a secondary question about whether the parties of Government would actually support the SOP, but I want to make sure that we know, as a committee, exactly what SOP 562 is designed to do. It’s designed to rule out snus but allow the non-tobacco oral nicotine products that are popular with the New Zealand Defence Force to be sold in New Zealand. They’re currently legal. This would make it unlawful.

I refer the member to page 39, section 53, in clause 26. So section 53(1) is actually where this particular SOP covers snus. So a person must not publish a regulated product advertisement that directly or indirectly states a suitable chewing or any other oral use. So that is actually where snus comes through. When we go through to section 53(2)(a), that is actually in reference to the question that the Hon Michael Woodhouse is about, which is oral nicotine products. Unless the Minister of Health has given consent or provincial consent for the distribution of that particular product, it is not allowed.

Thank you, Mr Chair. I’d like to speak now to Supplementary Order Paper (SOP) 545 in Nicky Wagner’s name, which we haven’t spoken to yet tonight. This would seem to be imminently sensible because fundamentally what Supplementary Order Paper 545 asks is that authorised community health groups be able to provide smoking reduction information to the communities. Furthermore, it needs to be approved community health groups.

I’ve spoken on a previous Supplementary Order Paper about the safety nets that we’re proposing in these SOPs, to the first Supplementary Order Paper 562, I think it was, we were talking to—no, here it is here; it’s to Supplementary Order Paper 536. I made the point that the safety net is the director-general, who had a wide range to approve who could become a specialist vaping retailer. Well, here in Supplementary Order Paper 545, again we give that discretion to the director-general—that’s the safety net. The director-general will be able to review and approve a lead support health worker assigned to a community-led group. It’s hard to understand why this is not a good thing. Here we are wanting to approve community-led groups to go out and legitimately be able to give smoking reduction advice. And so I’d be interested to hear from the Minister what, if any, concerns she has with this Supplementary Order Paper 545, or if she feels it’s otherwise covered in the bill, and if so, where?

We don’t agree with Hon Nicky Wagner’s Supplementary Order Paper 545. We do cover it, though—the Government’s Supplementary Order Paper covers it. If you refer to Supplementary Order Paper 567, page 9, under the interpretation of who a suitably qualified health worker is, we actually provide clarity now that it also includes a person that has completed the Ministry of Health Stop Smoking Practitioners Programme, as well as someone who is working under the supervision of someone who has completed that programme. It would also include peer support workers who are supervised by someone who has completed the Stop Smoking Practitioners Programme. We then give the director-general powers to be able to—under noting of the Gazette—also include other folks in that category.

You would know, Dr Shane Reti, that we’re also going to go out and consult on these before the regulations are actually implemented. So there is time for NGOs and for our key stakeholders to also have input into this.

Thank you. Dr Reti and I appreciate that answer, but I’m going to labour the point in respect of the amendments at new section 53(2A) and go back to Nicky Wagner’s Supplementary Order Paper (SOP). The Minister said, effectively, that these are unlawful because the bill will make them unlawful. We know that; that’s the point. So what this basically does right now is ban all oral nicotine products. Nicky Wagner’s SOP will distinguish between two classes of oral nicotine product: one that is not tobacco, and make that lawful, and one that is tobacco, and continue to make that unlawful. Snus is an oral tobacco product. It will not be lawful if SOP 562 is passed. What I’m trying to understand, and I still haven’t got this clear from the answers from the Minister, is whether or not she agrees with that description. We can argue whether there’s merit in the SOP, but what we haven’t got to the point of yet is where we have a shared understanding about what this SOP does. So I’ll ask the question in the simplest way I can: does the Minister believe that if SOP 562 is passed, snus would be lawful.

The Government does not agree with any of the Hon Nicky Wagner’s SOP.

💬 Hon Michael Woodhouse: That’s not my question.

That is not your question, but can I say that with oral nicotine products, including gum, which is now sold over in pharmacies, there is a process of going through the Medicines Act 1981, and the Government’s SOP is as it is right now, and we do not agree with her SOP about oral nicotine or her SOP about the health workers—because we already cover it in the legislation—or her SOP about reducing the threshold to 15 percent. Again, we already cover it in the Government’s SOP.

I get that; that wasn’t my question. Before we get to whether or not the Government agrees or disagrees, I’m trying to work out whether the Government and the Minister, particularly, actually understand what the amendment will do. So it’s clear the Minister is not going to state a view about whether she believes snus would be lawful if SOP 562 went through, so I will make it very clear to the committee: if members are inclined to support SOP 562, snus would not be lawful. What the Prime Minister said on the AM Show on Monday or Tuesday morning was incorrect, and that has to be made very clear.

Now, I’m not going to labour the point any more, but I would ask the Minister this. There has been a legal opinion released, and I’m not even sure who to, but it came from the law firm of Russell McVeagh, and they’re no dummies. And I think, though, it relates to cigars and the impact of new section 53(2A) on whether cigars would become unlawful. Now, some of my colleagues who shall remain nameless are a bit concerned by that, so I would be, as a reassurance I’m sure I don’t need, keen for the Minister to check with officials to make sure that they are absolutely convinced that we’re not inadvertently banning cigars by the new section 53 of the bill, which replaces section 29 of the current Act and adds section 53(2A) to ban oral nicotine products—that cigars would not be part of that ban.

I do not see how cigars are going to be made illegal with this, when it is clear that it’s about oral nicotine. New section 53(2A), that the Hon Michael Woodhouse referred to, is about oral nicotine. Cigars, as far as I am aware, are something that is combustible.

Thank you, Mr Chair. Can I speak further to Supplementary Order Paper 562 in the Hon Nicky Wagner’s name and ask three very simple questions. Does she have any sense how many Defence Force personnel use non-tobacco nicotine pouches? Can you confirm that that number may be around 10,000? And does she think that non-tobacco nicotine patches in any way are an aid to smoking reduction?

I cannot confirm how many people are using oral nicotine pouches. I’ve seen reports being written, but I cannot confirm it because I don’t know how those numbers have been arrived at.

My last question, please: are non-tobacco nicotine pouches an aid to smoking reduction in any way whatsoever?

There have been reports of a variety of products that are helpful in smoking cessation and that are being used by stop-smoking, cessation services to assist people to give up smoking. They include vaping, which is why we’re actually talking about and discussing this particular bill today. We know from evidence from New Zealand, including evidence that the Ministry of Health actually collected just last year, that there are a lot of our Māori women who have stopped smoking utilising vaping. In terms of oral nicotine products, probably similar to gum and other products, they do have a part to play. What this legislation is focused on, though, is ensuring that we regulate vaping products.

The question was put that the amendments set out on Supplementary Order Paper 569 in the name of the Hon Jenny Salesa to the proposed amendments set out on Supplementary Order Paper 567 in her name be agreed to.

Amendments to the amendments agreed to.

The question was put that the amendments as amended set out on Supplementary Order Paper 567 in the name of the Hon Jenny Salesa be agreed to.

Amendments as amended agreed to.

The Hon Nicky Wagner’s amendments to clause 21, new section 14A, set out on Supplementary Order Paper 536 are out of order as inconsistent with a previous decision of the committee.

The question was put that the amendments set out on Supplementary Order Paper 545 in the name of the Hon Nicky Wagner to clause 26 be agreed to.