Hazy facts link jail threat to new vape crackdown

What was Claimed

Australian vapers face up to two years in jail under Labor’s new vape ban.

Our Verdict

Misleading. Vapers already face the potential of two-year sentences in some states and territories. However, nobody has ever been jailed for vaping.

A lobby group is claiming that vapers face up to two years in jail under Labor’s crackdown on vaping.

This is misleading. Vape users already face the potential of two-year sentences in some states and territories.

However, no Australian has been jailed for vaping and the government has said its new crackdown will target the vendors and importers of products, rather than consumers.

The claim is made in multiple Facebook posts as part of the Bust the Black Market campaign being pushed by the Australian Taxpayers' Alliance (ATA) group.

A screenshot of the Facebook post.
Misleading information about new vape laws is being spread online.

"Labor's vape ban may jail adults for up to 2 years! Say no to extreme laws," one of the posts (screenshot here) states.

The post links to a page on the Bust the Black Market website which accuses the Albanese government of being soft on black market crime, with claims "Albo’s new laws will target honest Australians with jail terms of up to two years" and "Labor’s new laws to jail Australians for vaping is not the solution".

The Labor government's crackdown on vapes has made headlines in recent weeks, examples here and here.

From January 1, the importation of disposable single-use vapes into Australia will be banned.

The measure is billed to stop the import of millions of flavoured disposable vapes targeted at younger Australians.

The government says further changes can be expected from March 1, including a ban on the personal importation of vapes, and a wider ban on the importation of non-therapeutic vapes.

Health Minister Mark Butler (file image)
Health Minister Mark Butler is introducing stronger laws on vaping products.

There are also expected to be stricter requirements around the importers of therapeutic vapes and then legislation to prevent domestic manufacture, advertisement, supply and commercial possession of non-therapeutic and disposable single-use vapes.

However, the ATA fails to mention that vapers already face the potential of two-year jail terms.

Since October 1, 2021, consumers importing nicotine vapes have been required to have a doctor’s prescription.

This brought the requirement for importation in line with an existing ban on the sale of nicotine vapes in Australia under state and territory laws.

The 2021 reforms were made by the Therapeutic Goods Administration (TGA), independently of the coalition government of the day.

With these changes, the TGA announced all nicotine vaping products would be regulated under Schedule 4 of the Poisons Standard - which refers to prescription-only medicine (page 6).

The penalties for buying, possessing or selling nicotine vape products without a prescription are different in each state and territory.

In NSW, for example, a maximum penalty of six months' jail could apply. In the ACT, a two-year jail term could apply for possessing nicotine vaping liquid without authorisation (page 264).

Signage at a store selling vapes in Melbourne (file image)
General retail sale of all vape products may soon be illegal in Australia.

Despite the potential for jail sentences in some states and territories, nobody is thought to have been jailed for vaping in Australia.

The TGA said in an email it is not aware of any such case. An extensive search by AAP FactCheck also failed to uncover any evidence.

Public health expert Becky Freeman, an associate professor at the University of Sydney, told AAP FactCheck that Labor's proposed laws won't change the existing requirement adult smokers need a prescription to legally access nicotine vaping products.

What the changes would do, she said, was ensure retailers were no longer able to openly sell illicit products "under the guise that the vapes they sell are supposedly non-nicotine".

Professor Matthew Rimmer, from Queensland University of Technology’s School of Law, said the claim was problematic, describing it as suffering from "Back-to-the-Future temporal confusion" given future federal reforms were blamed for current state and territory rules.

Public Health Association Australia chief executive Terry Slevin also said the claim was misleading.

Illegal vapes seized by the Australian Border Force (file image)
The government is targeting illegally imported and single-use vapes.

He told AAP FactCheck he did not know of anyone who had been jailed for vaping and said he had not seen "a scintilla of evidence that anyone, anywhere in Australia will be subject to a jail sentence simply for using a vaping product".

"It is worth noting that vaping will still be legally available to smokers who seek a prescription from their doctor and purchase through their pharmacy," Professor Slevin said.

"It is the importation and sale of vapes, outside of the pharmacy model, that will be banned. Single use disposable vapes will be banned. Retailers who break the law will and should be subject to the law."

Federal Health Minister Mark Butler has said vape users would not be the target of enforcement action.

“I want to be really clear that we’re going after the vendors, those are the ones, I think, as well as the importers, who have created this problem, not the customers themselves, certainly not young people,” Mr Butler told ABC Adelaide.

But ATA president Brian Marlow told AAP FactCheck the alliance stood by its campaign.

"Labor is in government federally," Mr Marlow said.

"They are the ones responsible for the TGA Act and therefore, under the laws that they currently are responsible for and under the new ones, as the legislation currently stands at state level in at least four states and territories, it is a fact that people could be jailed for possession of a prescribed substance: liquid nicotine for inhaling."

The Verdict

The claim Australian vapers face up to two years in jail under Labor’s new vape ban is misleading.

Vape users already face the possibility of two-year sentences in some states and territories.

However, no Australian citizen has been jailed for vaping.

The government has said vapers will not be the target of future enforcement action. Instead, the focus will be on vendors and importers.

Misleading — The claim is accurate in parts but information has also been presented incorrectly, out of context or omitted.

AAP FactCheck is an accredited member of the International Fact-Checking Network. To keep up with our latest fact checks, follow us on Facebook, Twitter and Instagram.

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