E-cigarettes: At the mercy of bureaucrats who ban by default

It seems everything is illegal in Australia unless a bureaucrat gives permission. What’s worse, you have to go to the trouble and expense of asking for permission, because if bureaucrats were proactive they would run the risk of serving the public.

A good example is the case of e-cigarettes. These inhalers deliver a warm puff of nicotine, without the carcinogenic tar and industrial solvents of cigarette smoke. Alternatively, they can deliver a puff of anything else you could wish for, such as the flavour of chocolate or whisky.

In Australia, it is illegal to sell e-cigarettes to deliver nicotine. Not because a bureaucrat has made a decision to ban them, but because no one has yet asked the right bureaucrat for permission.

What this country is missing is an Oliver Twist — a poor wretched soul who draws the short straw and has to plead with the bureaucrats at the Therapeutic Goods Administration (TGA): “Please, sir, I want some more.” If anyone gets around to asking the TGA for permission, they will have to jump through the right hoops.

They will need to put their hand on their heart and say the only purpose of an e-cigarette is as an aid to quitting smoking. They will have to swear that no one would ever use them for enjoyment. And the onus will be on them to prove (at considerable expense) that e-cigarettes are effective quitting devices.

The ban-by-default of e-cigarettes containing nicotine suits zealous public health advocates just fine. They argue something should be banned until it is demonstrated to be harmless, since we are all incapable of deciding for ourselves.
Such reasoning would have banned every innovation before it could become popular, from the wheel to the internet. We would truly be in the Dark Ages.

They ignore their international counterparts such as the Royal College of Physicians, which concluded that e-cigarettes offer massive potential to improve public health by giving smokers a much safer alternative to tobacco.

They ignore how e-cigarettes are freely available in the European Union and the United States. And they ignore Australia’s record of level-headed harm minimisation, such as our pioneering of the methadone treatment for hard-core heroin addicts.

It is hard to avoid the conclusion that their primary goal is to achieve a puritanical victory against nicotine rather than to save lives. It’s not really about the smokers, it’s about them. Like Marie Antoinette, they say to the smokers who could benefit: “Let them go cold turkey.”

Bizarre legal loopholes

In the meantime, Vincent van Heerden, a Perth businessman, lies convicted of the crime of selling e-cigarettes without nicotine. When the West Australian Health Department took van Heerden to the Magistrates Court, the case was thrown out because the magistrate found that, while it is illegal to sell something resembling a cigarette, the e-cigarette in question looks more like a pen.

Regrettably the WA Health Department appealed to the Supreme Court, arguing that smoking heralds the apocalypse and anything that might remind anyone of a cigarette must be banned. The court was convinced, and van Heerden convicted.

But the weirdness doesn’t stop there. While it is illegal to sell e-cigarettes in Australia, it is perfectly legal to import up to three months’ supply, with or without nicotine. So our government intentionally lets foreign online businesses do the exact thing they ban Australian businesses from doing. It’s reminiscent of the line: “No sex please, we’re British.”

We are left with the most bizarre of situations. It is perfectly legal to sell cigarettes, which deliver death through combustion (along with billions of dollars of excise revenue to the government). And it is legal for foreign businesses to sell us e-cigarettes with or without nicotine.
But it is illegal to sell e-cigarettes with nicotine in Australia, because no one has asked the TGA to deem them to be quitting devices. And it is illegal, at least in some Australian states, to sell e-cigarettes to deliver non-nicotine flavours, because — horror of horrors — someone might see someone put something to their mouth. It’s like a ban on dancing because it could lead to fornication.

The government bans by default, then places each Australian in the position of Oliver Twist, where we have to plead with authorities for permission to pursue a humble existence. Charles Dickens, the great champion of justice and common sense, would be turning in his grave.

Originally published at www.afr.com on July 24, 2014.

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