Smokefree Environments and Regulated Products Amendment Bill (No 2)

We begin with the Smokefree Environments and Regulated Products Amendment Bill (No 2). We come first to Part 1. Part 1 is the debate on clauses 4 to 24, “Amendments to principal Act”. The question is that Part 1 stand part.

Thank you, Madam Chair. Labour will support this bill, but we do have quite a few questions for the Minister based on what we think is a pretty rushed process. We want to understand from the Minister the timing and some of what we consider to be shortcuts that were taken through the process, which is evident in some of the supporting documentation, but we also want to just understand what the thinking was behind the bill in terms of missing an opportunity to really resolve this problem or make some headway around youth vaping.

I’ll preface my comments with an article that’s just come out from Radio New Zealand, which looks at smoking and vaping rates over the last year. There are a number of interesting statistics in it, and the reason that I mentioned these two things together is because we’ve been repeatedly told in the Health Committee and throughout this process that vaping is of benefit because it stops people from smoking. We very much in the Health Committee see that lens coming through from the Ministry of Health, but of the statistics that came up in this Radio New Zealand story, there’s one that says, “Daily vaping has increased more quickly in younger age groups, especially those aged 15-17 and 18-24 years. Increases in daily vaping in these age groups exceed decreases in daily smoking”.

That’s a pretty interesting observation and statistic, because we’re continually being fed this line that we need to get a balance right between helping smokers come off vapes and making sure young people don’t pick up vaping, and it’s been given to us in that order. If we actually look at the bill in front of us and we look at the introduction on the commentary from the Health Committee, and the policy reason actually in the departmental disclosure, the first priority seems to be about taking smokers off smoking, and the second priority seems to be about young people not vaping. I’m not quite sure that that seems to have the priorities in the right order, because this article from Radio New Zealand shows that there has been a significant increase in vaping that continues the trajectory that we’ve seen over a number of years.

Certainly, twice now in this House, I’ve alluded to a graph that was shown to us by Professor Hoek from one of the NGOs and the university, looking at how New Zealand fares in our vaping rates compared to comparable countries. I think we had America around 6 or 7 percent and the UK around 10 percent, and then for young people in New Zealand, daily vaping was up at around 17 percent. This story from Radio New Zealand doesn’t do anything to negate that.

I understand, and anticipate, the Minister will say this is a good reason why we need this bill, and we would agree that some things are needed, but it is such a massive problem that the feeling on this side is that we really didn’t go far enough. We will be looking at questions of process and also asking some questions around why certain things were deemed out of scope. When we look at the regulatory impact statements (RIS)—there’s a couple of different regulatory impact statements—one of them relates to visibility and one of them relates to the other matters that are considered in this bill, but there is also evidence to show it’s not just visibility that seems to impact young people’s decision to vape, particularly in the New Zealand context. The RIS quote extensively from overseas research, including the UK, and they make assumptions around the New Zealand environment, in my view, based on that. Yet, when we look at what we do have in New Zealand for research, there are things around curiosity of vaping and also flavours and the attractiveness of flavours that seem to have a bearing on young people’s decision to vape that are not mentioned in the UK legislation and yet don’t seem to have been responded to in this bill.

The questions that we will have will be: why the truncated process, why the very restrictive bill—which the regulatory impact statements acknowledge is restrictive and therefore deems many things out of scope—when there was an opportunity to do something much more ambitious? We’ve heard from the Minister that she’s planning to bring some new legislation into the House next year, and the question this begs is: why has it been separated out? There were many people who would have wanted to submit in the very short time frame that was had. There was consultation that was not had that the RIS mentions—with Māori groups in particular, even though it states that Māori would have a very significant interest in this due to the high vaping rates. Our questions will be around why this has been truncated.

Thank you, Madam Chair. I do thank the member for the questions. I think, as you’ve outlined, we have a process here where we are trying to rectify—literally closing the door after the horse has bolted. We recognise fully that there was a lot of work that needed to be done in this space. The truncated process—and I appreciate that’s going to be a lot of discussion through the course of tonight—was to meet a commitment to get something up and running before the end of the year, this year. That was the real focus about doing some piece of work so that we could address the vaping situation.

I acknowledge that there has been a really unfortunate narrative that has been around this vaping space—that, somehow, when we were talking about vaping, we were talking about the situation where it was safer. Unfortunately, I think that the language got away, and we ended up with it being discussed as if it was safe. That’s where I think we really broke the gates in terms of too much take-up in young people. This is, as the member has mentioned, a first tranche of work, and it’s about trying to get some framework in place as soon as possible. It was that compromise, and I appreciate—more haste, less speed—that it’s not the perfect solution. It is a process that we want to work through, and we will continue to engage in this language.

I think it’s important, when we talk about vaping and its tool, we don’t ignore the impact, and you can see in the graphs that have been referred to numerous times that we did see a massive drop in smoking rates from about 2018. The differential that occurred, at that point, was that vaping had hit the markets, and we started ending up with a much higher drop-off of smoking than we had seen previously. We’re not, by any means, suggesting that this is a way of promoting vaping as a solution for young people. That’s exactly what we’re trying to prevent. We’re trying to ensure that under this vaping environment, we send clear messages that it is not for young people. We don’t want young people to vape, and we will continue to push on that language.

We’re doing a piece of work that we’re very keen to make sure has some tighter controls in place by the end of the year. There is further work coming, and there is further opportunity to do more in this space, but there is no denying that vaping is a less harmful product for smokers, and, therefore, we recognise it as a tool that has contributed to the smoking drop-off that we’ve seen.

Of encouragement, in the health survey results, something we did notice was that, in one of the figures that was referenced, the 15- to 17-year-old vaping rates last year were 15.4 percent, and they’re down to 10.5 percent, which is, again, way too high, but it is encouraging to see that we are starting to shift the narrative. There’s much more work to do in this space, though. Thank you, Madam Chair.

Members, the time has come for me to leave the Chair for the dinner break. The committee will resume at 7.30 p.m.

Sitting suspended from 6 p.m. to 7.30 p.m.

Right, members, the sitting is resumed. The House is in committee for consideration of the Smokefree Environments and Regulated Products Amendment Bill (No 2) and the Crown Minerals Amendment Bill. We have just begun consideration of Part 1 of the Smokefree Environments and Regulated Products Amendment Bill (No 2). The question before the committee is that Part 1 stand part.

Thank you, Madam Chair. Now, before we broke for dinner, one of my colleagues from the Labour Party was talking about the broader context of this bill, and also in terms of the truncated select committee process. I think other people would like to contribute to that as well. I think, from my perspective, I would like to start sort of almost line by line. That way I can structure it in a very systematic format.

I would like to get some clarification from the Minister on clause 4, particularly around the addition of the use of the disposable vaping device. Now, from the select committee process, one of the things we did hear—well, I say “we”; one of the things the Health Committee heard—during that process is that it may have unintended consequences in limiting certain elements of this, which is one of the reasons why the amended version has been changed from “product” to “device”; also, with some clarifications around the definition of a vaping device.

Now, I would like to get some clarification from the Minister around subclause (a) to start with, and particularly when we’re talking about “to be refilled by the user with a vaping substance or by using a pod, cartridge, or similar storage [containers]”. This is something that’s a little bit different from the previous version, which has been crossed out. In this case, I wondered if the Minister has considered that “similar storage container” is sufficient to address the rapid changes that vaping devices might take into the future.

For example, in the crossed-out version there was no mention of pods or cartridges, but instead talking about “pre-filled with … vaping substance … designed to be fitted into a vaping [substance] … and … not designed to be refilled”. I would argue that “designed to be fitted into a vaping device” is much broader as a criteria than having those specific criteria of “pod, cartridge, or similar storage container”. I was not, I think, a part of this part of the Health Committee when it was discussing the amendments and the updates, so I would like some clarification from the Minister on whether she thinks that this would capture everything in terms of the refill component, by this.

Also, looking at this, I want to briefly mention—and want some advice on from the Minister—one of semantics. It’s around the use of the preposition “by”. In this case, in the first part when we’re looking at refill by the user and then “by using a pod”, I think I just want some clarifications in terms of that it only captures the single-use element that I think was the intention of this bill. I guess the main question for the Minister is around what was the change, why was there a change into “pod, cartridge, or similar [containers]”, when previously I think “designed to be fitted into a vaping device” is much broader and captures more possibilities.

Thank you. I’d just respond to the member, just to reflect: so, when the bill was put forward, we did approach it on a very, you know—to get rid of disposable vapes completely. That was the challenge, which is what we were trying to do—get rid of the devices that were most commonly used by young people.

What happened in the select committee process—and overwhelmingly the submitters reflected that—was it would have had some unintended consequences, as the member has referred to, which was that we needed to balance that we were not going to end up with smokers going back to smoking because the vaping device that they used and relied on are most commonly used by those who had quit smoking. There was a balance struck there around ensuring that the devices that were commonly used—not used by young people, but not commonly used by those who had transitioned away from smoking and were relying on vaping. There was a balance that was struck there.

The member has also touched on the truncated process, and I think that question has been raised before. As I said earlier, this was about trying to ensure that we got something in as quickly as possible, because there was a lot of pressure around this vaping environment and getting it away from young people. The reason for this legislation being truncated was so that we could get something in before the summer and get this in place. There’s still going to be a lead-in time for these product changes. As soon as we can get the legislation in, we can move forward on it.

Thank you. I’d like to pick up on the comments from the Green member Dr Lawrence Xu-Nan around the time frames and also the two regulatory impact statements (RIS) that were done. There are a number of areas in there where they talk about the constrained time frames and also, in some ways, the process being a little bit reversed.

On page 3 of the August RIS, it talks about the constraint of analysis because Cabinet had already made decisions. My first question is: why had the Associate Minister of Health, the Hon Casey Costello, made decisions—and why had Cabinet made decisions—prior to the second regulatory impact statement being made? That seems to be a little bit the wrong way round. Also, the lack of consultation in the time frames in which the policy proposals were considered and agreed by the Government did not allow for consultation beyond governmental agencies, and this was itself limited. Then, the RIS talks about the select committee process providing an opportunity for public consultation.

If I marry that, then, with the first regulatory impact statement, and the second one, there is in there quite a detailed analysis around those ideas of vaping products—how broad or narrow the constraints should be. It was never in the RIS that single-use vapes using pods would be an exception, and yet we had many, many submissions saying this was really important for a number of reasons—one was around child poisoning and children getting hold of refillable containers and poisoning themselves. There were also news items from overseas where there was some kind of YouTube craze where people were trying to create their own refillable pods and ended up poisoning themselves. Then there was also the other unintended consequence around preventing people from being able to access vapes if they were trying to give up smoking.

My question is really just following on from the Green member’s: why was the exception that the Health Committee came to—pretty quickly and pretty unanimously, and that reflected the majority of the submissions to us—not even an option in the regulatory impact statement? Was there not enough information? Was there not enough consultation? Were we relying too much on evidence coming from overseas? It seemed to me very apparent that a lot of the research that was being relied on came from overseas, and, in fact, the regulatory impact statement says this best marries with the experience of Australia and the UK. We’re able to come to that conclusion pretty quickly and pretty unanimously, and yet it wasn’t in the official advice. That gives me some alarm bells and some red flags, particularly given the RIS very specifically mentioning the limitations and constraints on analysis and also the fact that Cabinet had already made decisions.

The Minister said earlier, in her response to my question—which I appreciate—when I was talking about truncated time frames, something about wanting to get something in the House before Christmas, and she has again alluded to pressure on the sector. However, the overwhelming sentiment from people who have submitted to the Health Committee outside of the submission process, simply on vaping in general and then again in the submissions, was that we need to do this properly. We’re talking about substances here that are consumed into the human body, into the tinana. This is not something we take lightly. In fact, there is other legislation—for example, if it was around alcohol or drugs—where this would be a conscience vote. I’m really curious to know what is the importance of the Christmas deadline for getting what appears to be kind of half the legislation through the House, so that we can better understand the urgency. Already we’re seeing red flags in the advice that was given by officials, and I don’t think that bodes well for good lawmaking. If the Minister could answer—thank you.

Thank you, Mr Chair. I would like to ask a couple of questions, probably in a very similar vein. When the Associate Minister of Health the Hon Casey Costello first responded to the first question, she, again, as has just been said, mentioned in response to the question about the truncated process that it was really important to get something up by the end of the year. In a slightly different take on that, but, certainly, still with regard to unintended consequences, I just wonder if the Minister can give us a little bit more information, or step us through, what has been her thinking or what her intention is in so far as that tranche two? Often, as we’ve just heard, and we’ve heard through the select committee process, there’s always some unintended consequences, be they big ones, be they small ones, be they things that can be resolved, or be they things that make things worse than if you had not done anything to start with.

A couple of things—and it is just a couple of things—really, we don’t think that this goes far enough. But, with the measures that are here, has there been any work done by officials or by the Minister to look at the half step, the halfway position, to get something done by the end of the year, and whether that impacts on the efficacy of the tranche two measures—whether there’s anything to sort of suggest that, particularly in relation to the wholly disposable versus the pod situation? Young people will always adapt—it’s an arms race, isn’t it?—and they will want what’s popular now.

My second question is: can the Minister give us any more detail or any more information exactly about the proportions or the popularity sort of statistics between the single-use disposable vapes versus the pods in that age group? If the first tranche comes in and young people—who are by definition addicted to the nicotine that they’ve been getting through these devices—then choose a different modality, does this first tranche in this bill keep pace with how those habits will change in time for the second tranche not to be already behind the eight ball? If the Minister could just give us a little bit more information about that. Given it’s a specific, intentional decision to get something done before Christmas, I’m assuming that there were these measures that were sectioned off from a larger plan. Can she tell us a little bit more about why the line was drawn here and this was called tranche one, and what tranche two will do, and how those two things interact? That would be much appreciated.

I have some more questions, but I’ll move on for now because they tend to have a slightly different purpose. Just to give the Minister some notice of where we might go after this, I certainly would like to know some more information about—because the purpose of this bill was to reduce access, and by definition that has been operationalised as reducing visibility, I think there’s several questions, and my colleague Ingrid Leary has alluded to this, in so far as the research that’s been relied upon to make those assumptions. Those first two questions would be much appreciated.

Just in terms of the member’s earlier question regarding the regulatory impact statement (RIS) report—the option two around the narrowly defined scope—that was in the RIS, so that has been referenced in this discussion. The other part—and I know we’ve talked about this truncated process—to clarify: this was about ensuring that there was movement and we were moving forward in this space because of the high level of concern, as has been elucidated in this Chamber today, around youth vaping. We were looking at some solutions that we could get through. To suggest there hasn’t been an opportunity there—this topic has been a subject of significant debate over a period of time, so there was a lot of knowledge that already existed in this space.

We talked a little bit about the devices, and we’ve talked a lot about the devices and the types of devices and stuff. I think it’s important to note that the device component of this is one part of the legislation, which is about reducing access. I think it’s important that we kind of keep focused on the bill that’s before the committee today, around dealing with what’s before us.

Again, the truncated process—I’m not sure how many ways I can express it—I appreciate there was concern, but there was a high level of interest by those who were dealing with kids that were accessing vaping. There’s a suite of responses in this space and around the types of devices. We relied on not only what was put forward but we also relied on the Justice Committee recommendations, which was where we’ve ended up.

I move, That debate on this question now close.

Kia orana, Mr Chair. It’s my first contribution on this bill. I note, Minister, that the select committee has made a number of changes to clause 4(a) that relate to, basically, extending out the definition, which I understand. My first question is—it relates to clauses 4(a) and (b)—there is a specific use of the word “designed”. I know that was in the original part of clause 4 as well. My question is around where modifications sit within that definition.

One assumes that it’s either as a descriptor at the point of importation or the point of sale; that there could be a device—what appears to be formally known as a “product”, but in this circumstance a “device”—that is not designed to be recharged, for example, or not designed to be refilled with a particular substance. Where in that particular scope of things do modifications sit? Or is that something where, once the device itself has made its way to the consumer, or wherever it might end up, actually, that’s not a valid consideration?

It just seems to me that the alternative would be that, for example, the device is not able to be recharged—whereas, what’s changed here is it’s talking about the design process. My first question is around that: is it around the point of sale? Is it around the point of importation? If it is importation, where does the responsibility for modifications sit within that? I guess, flowing on from that is whether or not the Minister is confident that, as it is currently worded, it would capture what it’s intended to capture. It may be that that is the case, but some clarity around that would be good.

My other question does derive from the regulatory impact statement (RIS), and it relates to what has been identified as legally privileged information but is before the committee at paragraph 69. This is the section that relates to implications around any international trade obligations that New Zealand might have. My question is just around the ease and cost of implementation, which is contained in the matrix within the RIS, whether the Minister can inform the committee around what particular international trade obligations are engaged—

CHAIRPERSON (Teanau Tuiono): Could the member just repeat that—what the reference is?

TANGI UTIKERE: Yes. It’s in the RIS and it’s on page 15, paragraph 69. Actually, it’s the whole section that relates to the former options, but the particular information that appears to be legally privileged but has been provided is at paragraph 69. My question for the Minister is just around whether there are any particular international trade obligations that are engaged or not as a result of the Government’s preferred approach?

Thank you, Mr Chair. This is my first opportunity to contribute to this bill at the committee stage, although I was lucky enough to be able to make a contribution in an earlier reading. I was not on the Health Committee that examined this bill, but I have had an opportunity now, at the last reading and at this committee stage, to look at some of the changes made by the select committee. I have a few questions for the Minister around some of those changes and also some of the other changes to the bill that were there prior to the select committee process.

This is certainly not an area that I’m an expert in, but it might be quite straightforward for the Minister to answer some of those questions that I have in Part 1. I will reiterate briefly comments made by colleagues in previous readings who didn’t agree this bill goes far enough. I am looking, really, for quite technical, I suppose, answers to some of these questions, but that’s kind of the overall thrust of this bill—and noting, obviously, the consultation and truncated elements of it that are in the departmental disclosure statement as well as on the regulatory impact statement documents, which others have mentioned, and the lack of, specifically, consultation with Māori. I just wanted to note that. If the Minister wanted to comment, that would be fine

My specific questions are relating to Part 1. In Part 1, we have clause 8(2).This clause replaces section 20P(2)(c) with the (c) that follows, and it states that “the applicant understands its obligations under this Act”. I wanted to know how the Minister envisaged that that would be quantified to reach the level of understanding to comply with the section that was there before the select committee process.

My next question is relating to a specific change made by the select committee. In clause 12(1), new subsection (4A), the select committee has added in something which, I imagine, was to avoid a particular type of mischief, as lawyers tend to call things that they want to avoid under an Act, and that is to specifically add, after section 25(4), “To avoid doubt, subsection (4) does not permit publication on an Internet site of a link to a regulated product advertisement …”. I wondered if the Minister could inform the committee of the particular issue that that new subsection added by the select committee was to avoid.

The next question I have is in relation to Part 1—again, in clause 14, new subsection (3B). This is, I think, having read the select committee’s report, a specific change that was added, as I understand, as a result of submissions, and that is, in (3B), “A specialist vape retailer must not display a vaping product or its packaging in a way that makes it visible from outside their place of business.” Now, I don’t vape, I don’t purchase vapes, but I am aware of vape retailers in my local area. One vape retailer that I’m thinking of has its door open all the time, and because its door is open, you are able to see the products that they sell there. Obviously, if the door is closed, you can’t see them. Would that specific example be covered by this change by the select committee?

I understand the reason for it is—and there’s quite a detailed explanation of why the select committee thought that this was important and why this change was made—but where is the line, really, with the displaying of their packaging? Is it a requirement that they must never be visible at any time, or is it just simply displaying in a form of advertising which would possibly be visible when the door is open but otherwise would be compliant? That’s just a question around the extent of that, and I think it’s important to get these details clear for retailers prior to the progress of this bill, so that they are able to comply with it.

The other question—and the last question—that I have for the Minister, if I have time, is in relation to new section 62, under clause 18, and it’s going to be replaced with “Pre-notification requirements”. That specifically refers to regulations. I understand that it’s the regulations that are in Part 2, which we’re not talking about at the moment, but that is referred to in clause 18, which refers to new section 62. I just wondered if the Minister had thought about making that more specific so it was clear that it was indeed the regulations in Part 2 that they were referring to.

I thank the member for her contribution, and I’ll try and work backwards a little bit. I’ll get some more advice around the pre-notification requirements that you mentioned.

The display component: there was quite a lot, from my understanding, within the Health Committee. The driver behind this was, I suppose, as you mentioned, that it has become very attractive to young people, the way the stores are set up. We also were cognisant around the submissions about the risk of being opaque and behind closed doors—the potential for generating crime risk around that. It was balancing the ability, and the language was changed to demonstrate that this was about not being visible to children. If you have open doors, then the product cannot be visible—so how they choose to do that.

Internet links were something that was raised, again through the select committee process. We were stopping the ability to display the product online but the concern was raised that you could then create a link to an international website. The discussion around it was that it would circumvent that discussion—that you were, basically, taking it off the site, but you could link through to another site. It was a way of trying to address, again, not being able to make it visible.

In terms of the trade implications, there was some discussion over trade implications. The battery component was the area that was of concern. I think that has been addressed through this process of ensuring that there—the level of risk around the trade implications, that’s the response that I can give on that component.

I think there was an earlier question regarding the modifications of the devices: after point of sale, when they’re modified, how is that done? I think the control that we’ve got in place is for what we’re selling; what happens once that device is purchased is beyond what we can deal with. I think it’s important that, when we talk about vaping, we’re looking at a process of not just enforcement but also talking about supporting this programme of work around education and awareness and changing the way we view vaping. That was where I think we drove a lot of the discussion around not having visibility, because that was that risk that we had—that it had become very attractive, the way the stores were set up and the way they were displayed. We were trying to get some balance in the way it was being seen as something very attractive and interesting—to take it out of front of mind. That was where we’re at.

Tēnā koe, Mr Chair. I’d like to take a call on this part of the legislation and really inquire with the Minister in terms of—we’ve explored, our colleagues have explored, in terms of the lack of consultation, also the narrow scope, and the absence of data to inform what was a rushed process. In terms of disposables and also compliance—if we can explore the compliance of our vape stores across the country, whether they are general vape stores or specialists. Where are we at as we push towards Christmas? Where are we at in terms of both knowing the data of what stores are in what communities, and then what staff do we have available to help with the compliance in this space?

Knowing that certainly we heard from submitters—and I go back to some of the Māori submitters that raised their support for the impact of youth vaping in our communities, but also how do we get stronger in the non-compliance space? While we might attach a fine to the stores or in regards to their non-compliance for the legislation, how do we even know that they are non-compliant? Knowing that we have limited resource on the ground right now—and I think about Tai Tokerau and our enforcement officers—there has been kōrero for some time that we were going to increase the numbers of officers. Where are we at in terms of that capacity as we gear ourselves up for this Christmas launch?

Of course, we are supportive of the legislation and the trajectory and the journey where we are heading in terms of strengthening the protections for young smokers and particularly in the vape space, but also we need a system and we need the many cogs in the public health service to be ready to implement the legislation when it comes into effect.

We heard from submitters also in local government, and local governments spoke to their desire to be strengthened in this space in terms of the stores that they have in their communities, their abilities to apply the by-laws in their local communities, but also be resourced in the space of compliance. So these are questions generally for the Minister in terms of our readiness. What does that look like so far? Do we know the numbers of stores—

Sam Uffindell: Point of order, Mr Chair. The purpose of this is to ask questions about the bill. It’s not general questions, as that member has just stated, that are outside the scope of it.

CHAIRPERSON (Teanau Tuiono): What’s your point of order?

Sam Uffindell: The point of order is relevance. It’s not relevant to—

CHAIRPERSON (Teanau Tuiono): And I will determine relevancy.

Sam Uffindell: OK. I was just raising it as a concern. Thank you, Mr Chair.

CHAIRPERSON (Teanau Tuiono): Thank you.

HŪHANA LYNDON: If I could complete my kōrero, I’ll go back to the sale, manufacture, supply, and distribution of the vapes in our communities—these devices. This is a question around the distribution of those stores. Do we know enough about what’s in our community, first of all, because we haven’t really looked at the data?

Then, further, is our system ready for launch, and what do our numbers look like in terms of resourcing the system to give effect to this legislation? This is all about enforcement. This is making sure that we’re able to fine those who will breach the legislation and that we will have the relevant staff in each of our communities—and even local government might even be considered for resourcing because they did ask for that—in terms of how we implement and get ready to support this legislation to be as effective as possible. Kia ora.

Before I take the next call, just reflecting on comments made, we have traversed a bit around time frames and, of course, the importance of Christmas just around the corner as well. With further contributions, I do want members to be mindful of that.

Thank you, Mr Chair. I think the point that was raised already by my colleague Hūhana Lyndon is a really important one, and it would be good to get clarification from the Minister in the context of clause 6 of the bill on the enforceability of this. But what I want to pick up on are a few things.

The first thing is what the Minister mentioned before. Thank you, Minister, for responding to my question around clause 4 before, but I guess one of the things I am slightly puzzled by is the fact that submitters have mentioned that there might be unintended consequences if the scope is too broad, and that way it’s not going to allow people to have alternatives to switch from smoking into vaping. One would assume that since this bill only covers the use of disposable vaping devices and not non-disposable—I stated very clearly, in clause 4, that anything that has the unintended consequence of not being captured would simply allow people to transition into using potentially non-disposable and rechargeable and refillable devices instead. I’m still a little bit puzzled as to why we need to have the level of specificity that we’re seeing in section 2(1)(a), in clause 4 of this bill.

Something else that our colleague from Labour Tangi Utikere mentioned is something else in terms of the regulatory impact statement, which I also want to pick up on from a trade perspective, particularly with the phrasing of paragraphs 69 and 70 of the regulatory impact statement. It does raise a little bit of alarm bells in terms of whether the Minister has had any consultation from either the Ministry of Foreign Affairs and Trade or any other agencies around the use of investor-State dispute settlement (ISDS) process. Is there going to be any part of this that is going to be considered here? The way that I’m reading paragraphs 69 and 70 of the regulatory impact statement is that we have to almost justify to companies that we’re not going to disadvantage them and that it is for the health of our people in Aotearoa, otherwise they might take additional actions. To me, that sounds like an ISDS thing.

Clarification from the Minister would be great, because that would potentially be an example of us actually prioritising the interests of overseas tobacco or vaping companies and batteries over the health of our own people, which may also in this case justify one of the reasons why we thought non-disposable, rechargeable, and refillable vaping products weren’t banned in this bill and why it wasn’t going as far. That potentially does answer that, but I’m not sure, so advice from the Minister would be appreciated.

There are still quite a few different components to Part 1 of this bill that I would like to address, but one of the things I want to address next is around the fine and what is going to become an offence. This is both in terms of new section 20FA, inserted by clause 7, as well as clause 15. Now, in the regulatory impact statement, on paragraph 22, it talks about the existing offence and the existing fine structure, and there is a two-tier structure between a body corporate and what it is in other instances. What we’re seeing in clause 15 is that what is going to be the fine for corporates will be increased from $10,000 to $100,000 and what it is going to be for other cases has increased from $5,000 to $10,000. This is to do with the sale of regulated products to under-18s, and the increase, potentially, is a way of deterrent.

I get that, but the question I then have for the Minister is that I also want some clarification from the Minister, or potentially officials, on why, in new section 20FA(2), inserted by clause 7, the fine for persons without reasonable excuse to sell or distribute disposable vaping devices is so extreme. In many ways, it is so much more than any other fine structure we have seen and any other fine structure we’ve seen in other parts of the principal Act. In this case, you see that, for a notifier or a large retailer, the fine is $400,000 and, for other people, it’s $50,000. That’s way more than selling it to a minor. If the Minister wouldn’t mind clarifying that point as well.

I can assure the member that there have been discussions with the Ministry of Foreign Affairs and Trade (MFAT). I don’t think it’s appropriate to talk about legally privileged advice in this forum, but the discussions with MFAT provide us assurance that we were not going to incur any further issues with this.

I think we’re getting a bit grey around the disposable devices versus the devices that we—so, again, I’d reiterate, what we were talking about were the devices most commonly used by young people, and that was the assessment and the evaluation, the advice that was given, which is why the legislation was written as it was and then, through the process, was addressing that we ensured that there were the vaping devices that were being used most commonly by those that had quit smoking and were relying on them as a pathway to being smoke-free.

We’ve talked a lot about the enforcement and the future state. I mean, the bill is very clear that we’re talking about increasing the penalties so that we have a level of deterrence. So the different penalties, if you work through the different offences—the reason there was a higher penalty for a larger organisation is that we needed to ensure that there were penalties in place that acted as a clear deterrent. I agree fully that the enforcement component is a really key part of this once this legislation comes into force. We want to ensure that there is strong compliance, and the penalty component was the driver behind this, to ensure that the penalties are a suitable deterrent from selling to minors and breaching this legislation overall.

Thank you, Mr Chair. I do want to reiterate that we are supportive of this legislation in general; however, there are some concerns that we want to open up. I certainly heard that the question about enforceability is an important one. My question relates to clause 4, “Section 2 amended (Interpretation)”. Amended section 2(1)(a) is really about the disposability of vapes.

I think we all agree that smoking is a dirty habit and causes health issues, cancer, kills people way too early, and vaping may be a way for people to step away from a really bad, dangerous habit. If we look at paragraph (a), when we think about the disposability of vapes, I’m interested that the Minister has said that what is beyond sale is not something that we deal with, because Government policy should really take into account all of the aspects of legislation and where it goes and what happens with disposable stuff.

I’m particularly interested because there is another burning question, and that is the waste to toxin to poison fast-track proposal to burn waste in Waimate. If we’re thinking about what happens to the devices that are used and if we’re not going to recycle them—if we are simply going to have them as single-use—why is the Government not willing to take care about what happens beyond sale? Why are we not thinking about lifecycle—where this goes, what impact it makes on our other communities, on our farmers? That’s where this goes. If we’re thinking about waste and we’re thinking about fast track, that’s where it goes.

We are thinking about particulates being burnt, spreading dioxins and other stuff—we don’t even know what’s in these things—over our rural communities in South Canterbury and in other places. My question to the Minister is: why are we not willing to consider what happens to disposable vapes beyond sale, and are we simply—

Sam Uffindell: We’re banning them!

SCOTT WILLIS: Some of the heckling I get is that we are going to burn this stuff—we’re going to burn it even more and we’re going to distribute it across rural Aotearoa and destroy our farming communities as well. There is something ironic in that, but my question to the Minister is about how we are going to deal with this holistically. How are we going to manage the waste that is coming from this legislation?

It is a serious question, because we are in agreement with the legislation that we need to limit the risk to our health sector, to our community, but we also need to think about the consequences of legislation, the unintended consequences, that might lead to even greater risk to our communities, that might lead to more waste, that might lead to the fast-track destruction of our rural communities with poor legislation. We need to consider this. We need to consider this in a very clear—well, to come back to my point, Minister: can we, please, have some understanding about what is going to happen beyond the sale of disposable vapes? Will we have some understanding of that? Thank you.

I thank the member Scott Willis for his concerns. I’d probably need to redirect you a wee bit back. Your colleague questioned what happened to a device that was then modified after it was purchased—slightly different. When I said that we can’t control what someone does with something they buy and how they modify it after they’ve purchased it, your concern regarding disposable vapes is exactly the point of this legislation. It’s to get rid of those single-use, disposable vapes. That is exactly the purpose of this bill, to get rid of that throwaway device, which, exactly as you said, has created a problem within the environment. This legislation, which I am pleased you are supporting, is exactly the point, and that’s why we’ve modified—we were going to get rid of a much wider definition of disposable, but that was brought back through the select committee process. The purpose of this legislation is to get rid of exactly the product that you have expressed concerns about.

I move, That debate on this question now close.

Thank you, Mr Chair. I would just have a short contribution to the Minister. This is to do with clause 14 and to do with the display of vaping products in shops. Now, understandably, after the select committee process there was a change, because one of the things that was changed was around display versus visibility. The submissions we heard from shops were that, if you were making it not visible from the outside, you would potentially create risk for people inside. Therefore, you have got change, and we see the addition of subsection (3B), through clause 14.

However, considering that I’m sure the Minister has visited many vaping shops, normally what you do see is they do have clear glass. Everything is visible from the outside and there are clear cabinets on the inside where all of the vapes are displayed. I want to get a very specific clarification from the Minister that, in the intention of new section 37(3B), in terms of “must not display”, what then would be the limit of that potential display? As in, is it a display of a clear window, and you are displaying it in the shop looking outside? Or does “display” have a much broader sense where none of the products should be available to be seen, at least made out to be seen, even through glass cabinets on the inside of the shop? I just want some clarification from the Minister regarding display. Thank you.

I will address the question from the member, and I thank you for your concerns. The question we have is that we have two components: we have the specialist vaping stores and the general vaping stores. Someone under 18 can be inside a general vaping store, because they are able to be in there purchasing other things, so that was addressing that. The specialist vaping store—and that’s why we’re working through a process of making some selections around how they choose to ensure that the product is not visible to those that are under 18. There’s a variable there and some degree of flexibility. It’s about whether it’s covering what’s in the cabinets or it’s covering the store—there is some flexibility around that space.

Thank you, Mr Chair. I have some follow-up questions from points raised by my colleagues and also by the Associate Minister of Health the Hon Casey Costello herself. The first one is in relation to section 2(1) of the principal Act, amended by clause 4 of the bill, where it talks about disposable vaping, and the word “product” is deleted and instead we have “device”.

If I look at the primary legislation, we’ve got two definitions: one’s a “vaping device” and one’s a “vaping product”. The vaping product seems to incorporate a device. This is material when it comes to some of the definitions in the regulations, which is why I’m asking the question. My first question is: I wonder if the Minister could, please, explain why when the change was made to having single-use pod vapes, the word “product” was changed out for “device” in that section and in subsequent subsections in 20FA of new Part 1AA, as well, inserted by clause 7 of the bill.

My second question is in relation to the offences. I note that the Minister said that the reason for such a large jump in the change of fine was as a deterrent factor, and yet when I read the regulatory impact statement (RIS), in fact, it says the reason that there needs to be a much larger fine is to enable prosecutors to take a case that is cost-effective of taxpayers’ money. I didn’t see anything around deterrent.

I do know that there is a body of evidence that says that one of the most important ways, in criminal law and in criminology, to ensure that people won’t get caught is when they know that they are likely to get caught. I’m sure the Minister with her past in the police service recognises that. I’m really curious about her response to say that the deterrent factor was the primary driver of the change of fine when that is not mentioned in the RIS, and it’s around the prosecution. We do know, in the Health Committee, that there have only been a couple of prosecutions—I think one in the last year—and that goes back to points raised previously by other members around the need for enforcement.

My third point is to do with clause 8 of the bill, “Section 20P amended”, with “the retail premises in which the vaping products are or will be sold”. We’ve got “at least 300 metres from the boundary of a registered school”, a marae, and we are adding early childhood centres, and we’ve got at least 100 metres. I’m wanting to understand why it is 100 metres in that case, and 300 metres in the other cases.

When I look at what the RIS says, it says, “Students of Pasifika origin were in general closer to [specialist vape stores] than European students. Some schools had up to 37 vape retailers within 1600m of schools and some of our most underserved communities had up to 7 vape retailers within 400m of the school.” I’m wondering how these particular places were landed on, because I can think of other areas where Pasifika, for example, would be very exposed to vape outlets, such as if they were in the vicinity of churches, in the vicinity of community halls. There are other communities—disabled communities—who equally would be more likely to be exposed to vapes in particular situations. I’m keen to understand from the Minister why these three areas were landed on—and early childhood, in particular, with the 100 metres.

The other thing that was in the RIS was that the University of Canterbury did a study that showed there were up to seven more vape stores in more socio-economically deprived neighbourhoods. I wonder if any consideration was given to a graduated or a nuanced approach to areas that already have a proliferation of vape stores, because we have a bit of a one-size-fits-all currently, and there is no sinking lid but nor is there any taking into account, as far as I can see, those areas that have significantly higher numbers of vape stores where perhaps there could have been some policy consideration.

The other thing is that there’s very scant research to come out of New Zealand, but one of the things that it does say in the RIS is that many young people are exposed to vapes and the provision of vapes through family members, and yet we have this big focus of the online scenario, which I understand may become a problem in the future, but currently accounts for very few vape purchases—it’s less than 10 percent; very, very few. What consideration was given to trying to mitigate the risk of young people getting vapes from family members, when considering this bill?

I move, That debate on this question now close.

I thank the member for the clarification sought. I think, when we go back to products versus device, if you go through the legislation, the motivation behind it was to clarify and provide some consistency across the legislation, as it had become pretty interchangeable. That was the reason for that change—to bring consistency within the legislation.

I note that the regulatory impact statement referred to more efficiency around prosecution, but from a principle point of view, when we were talking about this legislation and when we were first looking at the issues around this space, the penalties were not representing a deterrent factor. I completely acknowledge the fact that that has to be accompanied by enforcement, and that is the whole reason for increasing these penalties—to ensure there is a component of, you know, real concern if you get prosecuted and the penalties would align to that.

The 100 metres—the early childhood education (ECE) stores—and we fully acknowledge that there are too many vaping stores out there. This is the 100 metres for the ECE versus the 300 metres for the other proximity components—this was really just the sheer volume of ECEs. If we pushed out to 300 metres, it was, you know, becoming pretty complex around the extent. It was assessed to bring it back to 100 metres’ proximity because of the sheer volume of ECEs around the country. I do acknowledge the point of view around the fact that we have way too many vaping stores in the low socio-economic areas, which is the ones that incur the highest harm.

This is a process that we’ve talked about a lot, but within this legislation, this is the step forward that we’re trying to take, which is ensuring that we get rid of the disposable vapes, that we increase the penalties, and we reduce the visibility. Even though the stores are there, if we can make them less visible and less in the face of our young people, that’s the step in the right direction.

Just to note, members, that we have traversed a lot of different issues. I am looking for new material, and I’m looking for relevant material that is focused on the parts in question.

Thank you, Mr Chair. My question solely arises from what the Minister has just said. I’ll ask a very short question, because I just want an actual answer. Given what the Minister’s just said in relation to early childhood education (ECE) centres and, therefore, the 100-metre change, (a) it doesn’t now feel as if choosing ECEs is really congruent to the age cohort that we’re trying to reduce the visibility for, and (b) as the Minister has quite rightly explained, it was fraught with all sorts of considerations, because there’s just so many of them that having a 300-metre limit would make it nonsensical.

Was any other consideration made of other actual age-congruent, likely destinations and environments where this cohort of people actually do find themselves, like churches or halls or other things? It feels as if just another educational environment was just chucked into the mix to say that there’s been an extension for the sake of it. Can she, please, provide us with any information about whether other venues, other contexts, and other environments were considered? It doesn’t feel like this ECE one has really got much of anything behind it to justify it being included in this bill.

Mr Chair, thank you. I think it’s an important point that you’ve raised around the proximity component. It was considered important. It was raised through the office and with the ministry around those concerns, because we were getting younger and younger vapers. I think the important thing is to balance this conversation around where they were with removing the visible displays, and the balance in this conversation was, rather than going down the path of all of the places that you could be approximately located, removing that level of display and the visual attractiveness of a lot of those vaping stores. That was where we ended, on the balance.

Thank you, Mr Chair, and I really appreciate the Minister continuing to engage with us. Her answers have been very helpful.

I have a few different matters. One of them relates to Te Tiriti, where in the regulatory impact statement (RIS) there is a statement around Te Tiriti, saying that strengthening the regulation of vapes to protect children and young people would demonstrate good Government within the context of the Treaty of Waitangi. I note that there was consultation with a number of Government agencies, but there was no consultation with Māori, in one of the RIS. The second RIS said that there was no consultation with Māori, and yet in the first RIS there is a reference to the consultation with Māori and some of the communities saying that they wanted to see less visibility. I’d just like some clarification about whether there was in fact consultation with Māori groups, or was it confined to Government agencies?

My second point is that the highest number of young vapers appears to be young Māori women. I think it’s around 20 percent. I’ve got numerous pieces of paper here, but I note in the many, many Government agencies that were consulted, the Ministry for Women does not appear to have been. I think that’s a shame, given that there is a particular cohort where a gender lens as well as a tangata whenua lens or a Treaty lens might be relevant in terms of coming up with reasons why the prevalence is higher and what some of the mitigations could be, so that we do have appropriate policy in place.

Then I also have a question around the CBAx, the cost-benefit analysis, because there’s a number of references in both the regulatory impact statements to wanting to get the legislation right for all interested parties based on costs and benefits. Yet, when I look at the CBAx in the second one, which goes over a number of pages, interestingly—if I look at the August document, pages 21 and 22—it tries to make some findings about monetised and non-monetised costs and benefits to stakeholders, which includes regulated groups, regulators, Government consumers, and so on. For anyone who’s watching at home, this is a pretty critical piece of analysis, because it is really trying to weigh up the different interests at stake and put a monetary value on them. I don’t understand why we have a CBAx included when every entry in the second column says “Uncosted - (Medium)”, “Uncosted”, “Medium”, “Low - uncosted”. How can the veracity of this evidence be accepted when the CBAx is so lacking in evidence?

Also, if I go back to the departmental statement and some of the caveats around the quality of advice, it says that the RIS should be accepted, but there is a caveat around the quality of advice due to the time constraints, again. I’m really curious to know from the Minister how reliable she thinks the cost-benefit analysis is and whether it was even an exercise worth doing for the purposes of this bill, given that there appears to be no evidence to base the CBAx on. In lay people’s terms, it’s kind of guesswork. That seems a very big stretch to take when we’re talking about young people’s health, young people consuming something that goes into their body where we don’t know the full effects. We suspect it’s probably worse for them than caffeine; we will know in the fullness of time, and, in the meantime, we have pretty inadequate evidence. I’m just wanting to understand that, as well as the questions about the Treaty.

I would reassure the member that the advice that we’ve received—there have been prior consultations, we’ve received many submissions on these issues through previous processes, and gender analysis is carried out as part of that inclusion. I think the points that you’re raising around the importance of this issue is the reason why we’re addressing this legislation. We appreciate that. We are very concerned about what young people are putting into their bodies. We don’t want them vaping. That has been a cornerstone of this legislation—we’re absolutely committed to that—and all of these points that you’re raising are leading to exactly the reason this legislation exists: we are doing what we can in this process to get vaping away from our young people and our children.

Before I take the next contribution, I would ask that it is not a general contribution, that it is very specific to the clauses. I feel that we are getting to the end of this debate, but I will take this call.

Thank you, Mr Chair. This one is picking up on the workability of things like the infringements in relation to specialist vape retailers providing products being able to rely on the legislated or the proposed exemptions to when they might be able to be in breach, and, again, in relation to the fines—$400,000 for a large retailer, or $50,000 for a small one. It has been raised, very briefly, but there is so much about this bill that is dependent on enforcement, and we have heard the Minister say that there will be another bill coming that will provide that element to it. I’d like to know, from the Minister, specifically how that will work.

How many staff will there be enforcing these provisions, and what will be their powers of enforcement? As I understand it, there’s been one change made to the enforcement powers under this bill, which is to require people to give their birthday, pursuant to regulations that flow from the bill, but is she satisfied that there is provision, and, if so, what is her plan? It’s really hard for us to be blind in this process when we don’t know what the next tranche of legislation is. As this bill currently stands, without provisions relating specifically to enforcement requirements—so that we know that there will be compliance—this is a bit of a toothless tiger; it’s a bit of a wet bus ticket.

We need reassurance from the Minister about what her vision is for enforcement. It has been raised, and so I realise that it is not a specific enforcement provision, but that is because there isn’t one in this bill, and that’s what’s missing from this bill. So if the Minister could please respond to that, that would be very helpful.

I move, That debate on this question now close.