Retailers of notifiable products are required to comply with certain rules including the way they advertise, who they sell to and aspects of their retail premises.
Retailers who are caught not following these rules by Enforcement Officers risk fines or prosecution.
Prohibition on sales to minors
Prohibitions on the sale of notifiable products to minors are the same as those for tobacco products.
This means:
- notifiable products, including ‘toy’ products, must not be sold to people under the age of 18 years
- notifiable products sold to someone over 18 must not be delivered, or be arranged for delivery, to someone aged under 18
- notifiable 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.
Not following the above restrictions could result in a fine. In addition to any fine, a person who is convicted of selling or delivering a notifiable 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.
For Specialist Vape Retailers there is an additional requirement for them to take all practicable steps to prevent anyone under the age of 18 years from entering their approved vaping premises.
There is no restriction on under-18s from entering general retailers’ premises or visiting websites where notifiable products are sold but it is expected that websites have an R18 declaration before people can view the site.
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 notifiable product to a person younger than 18 years or, having sold a notifiable 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 notifiable 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.
Display of notifiable products
General retailers (and Specialist Vape Retailers) may display notifiable products anywhere within their premises or on their websites.
Automatic vending machines selling notifiable products must not be in a public place, unless products can only be sold when activated by a responsible person in a direct line of sight to the product purchaser.
There are requirements to display health information or warnings and/or purchase age information for notifiable products. These are outlined below.
Display notices
There are some rules and options around the notices to be displayed in your store.
Retailers of notifiable products:
- must display purchase age (R18) at each point-of-sale for notifiable products in English and te reo Māori
- can display approved product availability notices in English
- can display approved harm reduction notices in English or an accurate translation of the messages in another language
Restrictions on colouring and flavourings
As flavours and colours may make products more attractive to children and young people, there are some restrictions on these for vaping or smokeless tobacco products:
- the use of colourings in notifiable products is completely prohibited in New Zealand
- retailers are not generally allowed to sell vaping or smokeless tobacco products that contain a clearly noticeable smell or taste (‘flavour’) that is not tobacco, menthol, or mint
- however, an approved specialist vape retailer is permitted to sell any flavour of vaping substance from their approved vaping premises or approved internet site.
Example 1: if an e-liquid called ‘mango-mint’ clearly tastes or smells of both mango and mint then it cannot be sold by a general vape retailer as it contains a prohibited flavour (i.e. mango, which is a fruit flavour).
Example 2: If the only clearly noticeable taste or smell from that same e-liquid was mint then, despite its name, its sale would be permitted (although the use of the name ‘mango-mint’ could be prohibited under the Fair Trading Act if it makes a false representation about the flavour of the e-liquid).
Example 3: If a heated tobacco product has clearly noticeable tastes or smells of both mint and tobacco, its sale would not be prohibited as both those flavours are permitted.
Nicotine salt concentrations
Schedule 5, Part 1, Regulation 15 of the Smokefree Environments and Regulated Products Regulations 2021 states that the strength of nicotine salt in a vaping substance must not exceed 50mg/mL.This 50mg/mL limit applies to the concentration of the nicotine salt and not the concentration of pure nicotine. Sections 60 and 65 of the Smokefree Environments and Regulated Products Act 1990 place a legal obligation on notifiers and retailers, respectively, to ensure that all their products comply with the product safety requirements, including this nicotine salt limit.
There are two types of nicotine in vaping substances: freebase nicotine and nicotine salt. Freebase nicotine is pure nicotine that is generally derived directly from the tobacco plant, whereas nicotine salts are formed by reacting freebase nicotine with a weak acid, such as benzoic acid, salicylic acid or acetic acid.
As nicotine salts do not exclusively consist of nicotine, the 50mg/mL limit for nicotine salt specified in the regulations means that the quantity of pure nicotine allowed in nicotine salt vaping substances is generally between 26 and 37mg/mL, depending on the acid that is used.
To help consumers understand the nicotine strength of a product, Schedule 5, Part 1, Regulation 1(i) of the Smokefree Environments and Regulated Products Regulations 2021 requires the label of nicotine vaping substances to include the product’s nicotine concentration in mg/mL – this always applies to the freebase nicotine content so people can easily compare the strengths of different products.
Products need to be notified for sale in New Zealand
All vaping, herbal smoking and smokeless tobacco products (notifiable products) must be notified before they can be sold in New Zealand. This means that manufacturers and importers need to let the Vaping Regulatory Authority know about the notifiable products they intend to sell in New Zealand via the product notification process.
For retailers this means that you are prohibited from selling notifiable 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 is available so retailers and the public can find out which products are currently notified.
Notifiable Products - products that are no longer notified
Notifiable products must not be sold in New Zealand if their notification has been withdrawn, suspended or cancelled. If a notification expires, the product notifier must stop selling it immediately, but provided there are no safety concerns with the product, retailers can continue to sell-through their existing stock for up to three months.
It can be difficult to keep track of the current status of each notified product. As a result, we have compiled a list of products that were previously notified and therefore were able to be sold in New Zealand but are now no longer notified. This means that they can no longer be legally sold, except for expired notifications with no safety concerns where retailers have the three months sell through period for their existing stock.
Please note that this list is provided as guidance only and is intended to provide retailers with a quick way to identify products that they should no longer be selling. Due to the rate and volume of changes to notified products, we cannot guarantee this list is complete or up-to-date. Retailers, manufacturers and importers are still responsible for ensuring all notifiable products they sell have a current notification and that they meet all relevant statutory requirements.
The list of notifiable products that are no longer notified is available here: Notified Products No Longer Notified (Excel, 48 KB) - current as of 13 December 2022
The current status of all products can be found on the notified products register, which is available on the Ministry’s Notified Products Database
Speaking to customers about vaping products instore
The rules for talking to customers about vaping products within your store depend on what type of retailer you are:
- General retailers are prohibited from discussions with customers that encourage the use of vaping products, promotes their sale or notifies store visitors of product availability.
- General retailers can still identify products that are available for purchase, and their prices, and encourage 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 notifiable products, available for purchase in their approved premises, provided they comply with any requirements in regulations.
Advertising
Prohibition on the advertisement of notifiable products is similar to that of tobacco products. It is prohibited to encourage the use, promote the sale, or notify the availability of notifiable products or promote smoking or vaping behaviour.
‘Vaping products’ include vaping substances, also known as e-liquids or ‘vape juice’, as well as e-cigarettes and other vaping devices such as those used with heated tobacco products.
However, the prohibition on advertising does not include any of the following activities, provided the activity complies with any applicable regulations:
- price lists given to retailers, provided they display any required health messages
- advertisements published by a manufacturer that are intended only for their employees
- public health messages that are issued by the Director-General of Health and funded by a public service
- the display of vaping products that are available for sale within the retail premises or on an internet site of retailer
- information provided in a retailer’s place of business relating to vaping being a less harmful alternative to smoking
- advice given by a suitably qualified health worker to help people switch from smoking to vaping
- research relating to notifiable products, or about encouraging smokers to switch to less harmful products
- information provided by manufacturers or importers to retailers about the use of notifiable products
- communications about vaping products from Specialist Vape Retailers to their existing customers
- price lists in a retailer’s premises, on their website, or on automatic vending machines, provided:
- they only identify the vaping products available
- they use only printed or written words (or spoken words, in the case of a retailer’s premises)
- public notices indicating that regulated products are generally available and the location(s) where they can be purchased, using only printed or written words, and provided that they comply with any regulations
- the retailer’s name or trade name on the outside of a retailer’s place of business, provided the name does not signify regulated products can be purchased, is not a trademark of a regulated product, and is not the name of a manufacturer or importer of regulated products (exception for SVR's).
Prohibitions on free/discounted/bundled distribution or supply
The rules around offering free or discounted vaping products are similar to those for tobacco products. These include that:
- vaping products must not be distributed or supplied for free or at a reduced charge, except:
- as part of a publicly-funded smoking cessation programme
- a Specialist Vape Retailer may supply free or discounted vaping products from their approved vaping premises or approved internet site
- vaping products must not be packaged together with other types of product or distributed/supplied with other types of product at a single price (ie, as a bundle). Note - They can be purchased at the same time as other products (as part of the same transaction) and then bagged or shipped together provided they are not sold as a package or sold together at a single price.
- only Specialist Vape Retailers may offer someone buying a vaping product a gift, cash rebate, or the right to participate in a contest, lottery or game, in consideration for their purchase.
- retailers must not be offered a gift, cash rebate, or the right to participate in a contest, lottery or game in relation to:
- the purchase or sale of vaping products by the retailer
- the advertising of vaping products in the retailer’s premises or on their website
- the location of vaping products in the retailer’s premises or in their website.
Prohibition on sale of products for chewing (or similar oral use)
The prohibitions on describing tobacco products as suitable for chewing or other similar oral use are the same for vaping products. This means that vaping products must not be advertised, labelled or otherwise described as suitable for chewing or other similar oral use.
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.
Prohibition on display of certain trading names for general retailers
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.
This is not the case for Specialist Vape Retailers.
Enforcement officers
Enforcement Officers for notifiable product regulation are appointed by The Director-General of Health. These officers have the power to:
- enter and inspect any retail premises or other place where regulated activities relating to notifiable products are carried out, or are reasonably thought to be carried out
- inspect any notifiable 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 notifiable 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.
Find the Public Health Service contacts.