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About the display of vaping and other notifiable products
General retailers (and specialist vape retailers) may display vaping products anywhere within their premises or on their websites. Other notifiable products (smokeless tobacco and herbal smoking products) must not be displayed in-store or on 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 with a direct line of sight to the purchaser.
‘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.
Display notice requirements
There are requirements to display health information or warnings and/or purchase age information for notifiable products. These are outlined below.
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
Advertising requirements
Prohibition on the advertisement of notifiable products is similar to that of tobacco products. It is prohibited under section 23 of the Smokefree Environments and Regulated Products Act 1990 (the Act) to encourage the use, promote the sale, or notify the availability of notifiable products or promote smoking or vaping behaviour.
However, there are some exemptions to this prohibition for vaping products, listed in section 24 of the Act. 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 at 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 specialist vape retailers).
Exemptions to the section 23 advertising prohibition for existing customers
What the law says
Section 23 of the Act outlines the legal requirements relating to publishing a regulated product advertisement. Amongst other things, it broadly prohibits the publication of a regulated product advertisement in New Zealand.
23 Publishing regulated product advertising prohibited
(1) A person must not publish a regulated product advertisement in New Zealand or arrange for another person to publish it in New Zealand unless the person is authorised by or under this subpart or subpart 2.
Section 24 provides some exemptions to the advertising prohibition set out in section 23. Subsection 24(l) says that section 23 does not apply to communications about vaping products by specialist vape retailers to their existing customers.
24 Specified publications exempt from advertising prohibition
Section 23 does not apply to:
(l) communications about vaping products made, in accordance with any regulations, by specialist vape retailers to their existing customers.
When can a retailer communicate to customers about vaping products
The term ‘existing customer’ is not defined in the Act.
The view of the Ministry of Health is that an ‘existing customer’ of a particular SVR is a person who has already been a customer of that SVR in the past, for example, they have purchased a product from that SVR’s approved vaping premises or their approved internet site previously.
Clarifying when advertising is not allowed
Some examples of advertising not covered by the exemption in subsection 24(l) are:
- posters or advertising that are visible from outside the store
- posters or advertising that are visible inside the store where the store is accessible by a member of the general public.
