Any distributor or retailer who becomes aware that someone has experienced an adverse reaction to a vaping product should report it to their supplier and the New Zealand Pharmacovigilance Centre as soon as possible. This will help the Vaping Regulatory Authority monitor the safety of notifiable products for sale in New Zealand.
Prohibitions and requirements
Prohibition on sale to minors
From 11 November 2020, the existing prohibitions on the sale of tobacco products and herbal smoking products to minors are extended to vaping products.
- vaping products, including ‘toy’ products, must not be sold to people under the age of 18 years
- vaping products sold to someone over 18 must not be delivered, or arranged for delivery, to someone aged under 18
- vaping products must not be supplied in a public place, directly or indirectly, to anyone under 18.
An employer may be liable for any breach in addition to their employees or agents, whether or not the breach was carried out with the employer’s knowledge or approval.
In addition to any fine, a person who is convicted of selling or delivering a tobacco product, herbal smoking product or vaping product to a person under 18 at least twice within a two-year period may be prohibited by a court from selling such products for a period of up to 3 months.
Specialist Vape Retailers must take all practicable steps to prevent minors from entering their approved vaping premises. However, there is no restriction on under-18s from entering general retailers’ premises or visiting websites where vaping products are sold. Despite this, it is expected that websites have an R18 declaration before people can view it.
Online sales to minors
Under section 40 of the Smokefree Environments and Regulated Products Act, it is an offence for a person to sell a regulated product to a person younger than 18 years or, having sold a regulated product to a person of any age, to deliver it, or arrange for it to be delivered, to a person younger than 18 years.
However, a person who commits this offence will have a defence if the person proves that the sale, delivery and/or delivery arrangement occurred without the person’s knowledge and the person took reasonable precautions and exercised due diligence to prevent it.
The Vaping Regulatory Authority’s position on selling regulated products online is that if a retailer takes the following five steps, the Vaping Regulatory Authority is likely to consider that the retailer has taken reasonable precautions and exercised due diligence:
- the website has an R18 declaration on entry to the website; and
- proof-of-age documents are verified by a staff member before payment is made by the customer; and
- the retailer ensures the delivery name aligns with the name on the payment method; and
- all deliveries are signature only; and
- R18 courier services (where IDs are checked at the door) are used for delivery.
However, all retailers are responsible for making their own assessment of the adequacy of the steps they have taken in the particular circumstances of any sale. Even if a retailer were to take all of these steps, this may not always be considered adequate in the particular circumstances to prove that reasonable precautions were taken and due diligence was exercised.
Oral communications with customers
From 11 November 2020, general retailers inside their retail premises are prohibited from discussions with customers that encourage the use, promote the sale, or notify the availability of vaping products.
This does not prevent general retailers from:
- identifying products that are available for purchase and their prices
- encouraging smokers to switch to less harmful products
A Specialist Vape Retailer who is inside their approved vaping premises may talk to customers about vaping products and provide guidance on the safe use of regulated products, available for purchase in their approved premises, provided they comply with any requirements in regulations.
Prohibition on sale of products for oral use
From 11 November 2020, the existing prohibitions on describing tobacco products as suitable for chewing or other similar oral use are extended to all regulated products, including vaping products. This means that vaping products must not be advertised, labelled or otherwise described as suitable for chewing or other similar oral use.
From 11 November 2020, any products where nicotine is absorbed primarily through the oral mucosa by chewing or similar oral use must not be imported for sale, sold, packaged or distributed in New Zealand. This prohibition does not apply to products that have been given consent or provisional consent as a medicine under the Medicines Act 1981.
Display of vaping products
Display within the premises
General retailers (and Specialist Vape Retailers) may display vaping products anywhere within their premises or on their websites.
Automatic vending machines
From 11 November 2020, automatic vending machines selling vaping products must not be located in a publicly accessible area, unless products can only be sold when activated by a responsible person who can see the product purchaser.
Health information and warning signs
Requirements to display health information or warnings and/or purchase age information for vaping products are set out in the regulations. This may in due course require retailers to display signage or information in their premises, on any automatic vending machines and/or their websites.
From 11 February 2022, all vaping and smokeless tobacco products (notifiable products) must be notified before they can be sold in New Zealand.
This means retailers are prohibited from selling vaping products or smokeless tobacco products that:
- do not have a current notification, unless it has been less than 3 months since the notification expired and there are no current safety concerns with the product
- do not comply with any product safety requirements set in regulations
- have been subject to a product recall.
A searchable database will be available from 11 August 2021 so people can find out which notifiable products are currently notified.
Prohibition on display of certain trading names
From 11 November 2020, a general retailer must not display its name or trade name on the outside of its place of business (whether that is a physical store or a website) if the name:
- signifies that vaping products can be purchased
- is a trademark of a vaping product
- is the name of a manufacturer or importer of a vaping product.
General retailers and Transitional/Specialist Vape Retailers can access templates for mandatory and optional notices on the industry page.
The Director-General of Health must appoint Enforcement Officers that have the power to:
- enter and inspect any retail premises or other place where regulated activities relating to vaping products are carried out, or are reasonably thought to be carried out
- inspect any vaping products for sale at that place
- take photographs, videos or other recordings
- take air samples
- inspect advertising or display material
- require identifying information from a person they believe has sold, delivered, or arranged delivery of a vaping product to a person under the age of 18.
Enforcement Officers will carry documentation to verify their identify.
An Enforcement Officer is not permitted to enter private houses or accommodation unless they have the consent of the occupier, a search warrant, or they have a power of entry under other legislation.