Smokefree Environments and Regulated Products Amendment Bill (No 2)

We now come to Part 2. This is the debate on clauses 25 to 29, “Amendments to Smokefree Environments and Regulated Products Regulations 2021”. The question is that Part 2 stand part.

Thank you, Mr Chair. My first question to the Minister is around clause 27, specifically around the amendments to regulation 57 of the Smokefree Environments and Regulated Products Regulations 2021. For subclauses (4) and (5), what we’re seeing is amendments or adjustments to replace certain wordings within that particular regulation around “If the Internet site contains information about tobacco products, at the top”, as well as “If the Internet site contains information about tobacco products, at the bottom”. Now, the question I have for the Minister is around the use of advertisement, which this part pertains to, and the use of the static advertisement I was seeing when it comes to tobacco products, and vaping products in general.

From what we’re hearing from the Minister—and, again, thank you, Minister, for responding to my questions before around display and visibility. I think that was really, really helpful. The Minister has mentioned in numerous instances that one of the purposes of this bill is to drive down the number of young people smoking or vaping, and that is one of the big issues that we see in all of the regulatory impact statements. However, what we’re not seeing here—particularly, when it comes to some of these minor adjustments with clause 27—is the broader picture of the fact that young people are not being drawn to static advertisement like the amendments and adjustments that we see in this clause. Instead, what we’re seeing—particularly, for those under the age of 18—is that young people are drawn to more variable and more dynamic advertising opportunities through social media and through media influencers.

I guess my question more broadly to the Minister is this. If the intention was to really address the number of young people in Aotearoa New Zealand smoking tobacco products as well as vaping, in this particular clause, why wasn’t there a bigger amendment around a certain ban or certain restrictions and framing or limitations around the advertisement of tobacco products and vaping devices beyond the internet and beyond the top and bottom banner, and having it more inclusive around social media platforms, particularly TikTok and Instagram?

I thank the member for your inquiries about this. I think the broader conversation you’re having is well beyond the scope of this bill. You’re talking about advertising generally, which is well beyond this. When we talked about tobacco and vaping products, it was really around getting consistency across websites, specialist vaping stores, and generalist vaping stores around the language that was being used. That was the difference. I think the broader discussion around advertising is well beyond the scope of this bill.

Thank you, Mr Chair. I just have a short contribution to make to Part 2—a very specific question surrounding the change that was made by the select committee in Part 2, which is the regulation section in clause 19B, which is “A child safety mechanism must not be able to be overridden or deactivated by a user.” I thought that was quite an interesting provision. In relation to preventing the use of these products by children, it is obviously something that we all want to make sure doesn’t happen. I have read the select committee report and noted their specific request to change that provision to make it clear that that can’t be overridden. I understand their reasoning was that some children were, say, picking up a vape product and they were sucking on a vape or inhaling some of the vapours and that was obviously something which no one in this committee would think would be desirable.

The question I have is in relation to the workability of this provision in the regulations. When we talk about a user, is it correct to state that that is an adult user, and the purpose of this is actually to make the type of child safety mechanisms permanently in place on vape devices in a way that means that children cannot use them? I’m just struggling a wee bit, and I wondered if the Minister might be able to get some technical advice on exactly how something like this would work. Essentially, an effective child safety mechanism on a vape would be to make them permanently closed or unable to be accessible at all by children, which I think is great, but obviously a vape user is probably not going to want to purchase a product which is unable to be used at all. What are we actually talking about in relation to these mechanisms?

I mean, the child safety mechanisms that I’m familiar with, and most people in the Chamber would be, are around medicine bottles and things. Obviously, adults can open them; children can’t. Is it that type of situation? What are we putting in place that will keep children safe that still means that adults can purchase a product? I did look through the select committee report to see if there was further information on that—I couldn’t see it—so if the Minister has any more information, I’d be interested to know.

Thank you for that question. I have received some clarification on it. The child safety mechanism, as you know, already existed. What this process was addressing was the ability to override it, and that included providing instructions on how to override it and all of those other steps. It was to make sure it was clear that it had to have the mechanism, but also that it couldn’t be overridden either by advice or by a process. That was it, really.

I’m hoping the Minister will indulge us by wearing one of her other hats, as customs Minister, because I note that one of the easier ways to get around all of this complexity would be to just make sure that we don’t import these devices, that they are ready to go and fit for purpose. I’m curious to know why, from a policy perspective, that was not considered the best way to deal with this. Instead, we have a sort of complex set of rules that involves overriding of devices or not.

My second question is relating to the one raised by my colleague Camilla Belich; how does the Minister envision that that will be enforced in terms of overriding child devices? I’m just trying to imagine a scenario; is that through enforcement officers checking products? I can’t really imagine how it would be done, and so I’m really keen to hear from the Minister how she thinks it will be able to be achieved.

My third question is just around the regulations where “tobacco product” in the regulations has been replaced by “regulated products”. My understanding is that some vaping products have no nicotine, and I’m wondering if she can clarify whether a non-nicotine vaping product is a regulated product for the purposes of this bill.

Thank you, Mr Chair. I would just like to pick up on what the Minister said before, and I would sort of, in some way, respectfully disagree with the Minister, because, in many ways, the scope of the bill is as the Minister shapes the bill, and we have seen numerous instances in this very Chamber during the committee stage where Ministers have taken certain amendments that are completely outside the scope of the original intention of the bill to make those kinds of changes.

Going back to the problems with the definition of the regulatory impact statement—and the Minister is being very persistent around the Smokefree 2025 goal—how we are advertising to young people and how we know which avenues young people are drawn to by advertisements very much would be in the scope of this bill, if the Minister willed it to be in the scope of this bill. I don’t think that just because we’re trying to make things consistent across various legislation by adding specific phrases is sufficient to do these changes—

💬 James Meager: Dragging on.

But—would you like to take a call? That is genuinely important because it comes down to what the purpose of this bill is. If this is something that we are really serious about, we might as well do something genuinely progressive about it by looking at how social media is being used as an advertisement for tobacco products and for vaping products. That’s a legitimate question for the Minister.

To the second part of my question, I would also like to get some clarification from the Minister regarding clause 29(2A), which is the new clause 19B of Schedule 5. Now, when we are looking at child safety mechanisms, one of the things that has been in the media as of late is the issue around heated tobacco products, and the fact that child safety mechanisms have been a hindrance because it was something Philip Morris had to pull off the shelf because the products they had didn’t meet the regulatory requirement of that safety mechanism.

In this particular case—now, noting that this was an additional addition after the select committee process—can I get a clarification from the Minister on whether the existing products and the existing mechanisms, both in terms of rechargeable and refillable vaping devices but also potentially other things that are being captured by this particular clause, are in fact compliant currently? Or has the Minister received advice from companies or from organisations who do import, who do sell vaping devices, that this is something that currently isn’t available or isn’t currently compliant, and a whole new device system will need to be compliant?

Additionally, on top of that, what happens to those people who currently have those existing devices that do not potentially have those child safety mechanisms? Would any refill parts or other mechanisms potentially mean that they’re no longer sort of fit within that—I guess, fit within the non-disposable vaping devices of pods, cartridges? Would the refillable stuff still be able to lock into the mechanism or be locked into that device?

A couple of questions to the Minister: are the existing devices on the market compliant with 19B and would any of the reusable devices that people have which are not compliant—are the refillable options or rechargeable options still available to them, going forward?

I’ll work backwards. I think, again, just to go through the process, in terms of what products are currently available and what will happen to them if this legislation comes through and is passed, then they will be non-compliant. There’s been a range of changes over the previous years around what devices can or can’t be sold, and the market has pivoted. What happens to those products as they become non-compliant and they can’t be sold? I think I’d go back again to—you’re talking about the child safety mechanism. That system already existed. What we were talking about is adding on a differentiation that it can’t be overridden.

I think the previous speaker talked about the child lock devices and how they would be checked. That is the longer narrative around verifying the product being sold, and that’s the compliance regime that we talked about. I think it’s important to separate out the legislation versus the policy and operationalising of that legislation, and what happens from that point around the enforcement team and how they will apply that. The question was earlier asked about the importation process and cutting it off at the pass. That was looked at in terms of whether that is included around—because of the volume and the nature of devices, we are focusing at this point on the point of sale of products. That was where we’re sitting there.

You mentioned previously about non-regulated products; regulated products that were non-nicotine. They would fall within this regulated products regime.

Thank you, Mr Chair. I’d just like to pick up on a couple of points that the Minister made which have really piqued my interest. When the Minister said that we need to separate out the legislation from the enforcement, I think the point from the Opposition is that there is nothing in this legislation that actually points to enforcement, apart from one change to enforcement officers being able to request the date of birth of somebody that they are interacting with in order to see whether the law has been broken; yet both regulatory impact statements say very clearly that the value of this bill and the workability of it depend very heavily on enforcement.

We’ve also heard the Minister say that there will be new legislation coming in that will deal with enforcement, and yet she has not answered questions about how many enforcement officers, what powers they will have, what resourcing they will have, whether there will be a weighting towards areas that have a higher prevalence of vape stores, and all of those questions which this bill is entirely contingent upon, if it is to have any impact at all on the youth vaping rates. So I’m curious as to the statement about separating enforcement out. We don’t see enforcement in the bill. I would ask the Minister once again, please, to answer the question that has been asked by both the Green Party and ourselves, as Labour, about enforcement, because it is otherwise a conceptual bill that simply will not make any difference.

We’ve seen that with the evidence that’s come through the submission process but also, actually, from Vape-Free Kids and others from the university and the Public Health Coalition—who presented independently to the Health Committee—to show that, probably due to resourcing, there has been very little effort by the ministry around enforcement. That is kind of the $64 million question here, and it is the one area that we’re not getting any answers from. I’d really encourage the Minister to continue, please, in the really helpful vein that she has been this evening and shed some light on enforcement. If it is going to be in the next bill, please, let us know the vision of how that will occur so that we can have some confidence that this bill will indeed achieve its legislative purpose, given that we are voting in favour of it.

I move, That debate on this question now close.