This article applies to organisations who supply vaping goods, including health organisations in NSW.
Public Health (Tobacco) Amendment Bill 2024 (NSW)
On 22 November 2024, the Public Health (Tobacco) Amendment Bill 2024 (NSW) (the Bill) passed the NSW Parliament and is currently awaiting Royal Assent. The Bill will commence once it receives assent and will implement regulations on the supply and possession of vaping products, aligning with recent national vaping reforms.
Operationally Significant Changes
The Bill will make amendments to several Acts, including the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA) and the Medicines, Poisons and Therapeutic Goods Act 2022 (NSW) (MPTGA) (yet to commence). The most significant operational changes (from an operational perspective), include prohibiting a person, in certain circumstances:
- from supplying vaping goods in NSW;
- from possessing commercial quantities of vaping goods in NSW;
- who is a retailer from possessing less than commercial quantities of vaping goods at a retail premises in NSW.
Further Information
Prohibition on supplying vaping goods
The new section 20 of the PTGA prohibits the supply of vaping goods in NSW. Exceptions apply if the vaping goods are therapeutic goods included in the Australian Register of Therapeutic Goods and the person supplying the goods is:
- authorised to supply the goods under the Therapeutic Goods Act 1989 (Cth);
- authorised to import the goods under the Customs Act 1901 (Cth);
- a pharmacist, medical practitioner, or nurse practitioner under a licence or authority, supplying the goods for therapeutic purposes in their final dosage form, such as for smoking cessation or nicotine dependence management.
The maximum penalty for non-compliance with section 20 is 7 years imprisonment or 14,000 penalty units (currently, $1,540,000), or both.
Australian Register of Therapeutic Goods means the Australian Register of Therapeutic Goods kept under the Commonwealth therapeutic goods laws.
Vaping goods has the same meaning as in the Therapeutic Goods Act 1989 (Cth).
Possessing commercial quantities of vaping goods
Under section 21, a person is guilty of an offence if the person possesses at least the commercial quantity of vaping goods. Penalties under section 21 are tiered, increasing with the quantity possessed. For example:
- possession of less than 100 times the commercial quantity; 2 years imprisonment or 2,800 penalty units (currently, $308,000), or both;
- possession of at least 1,000 times the commercial quantity; 7 years imprisonment or 14,000 penalty units (currently, $1,540,000), or both.
Exceptions apply if the person is authorised to manufacture, possess or supply the goods. It is also not an offence under section 21 if:
- the goods are lawfully supplied;
- the goods are for personal use; and
- the quantity of the goods is less than 5 times the commercial quantity.
Commercial quantity, of a kind of vaping goods, has the same meaning as in the Therapeutic Goods Act 1989 (Cth).
Prohibition on possession of vaping goods — less than commercial quantities
Section 22 provides that a retailer is guilty of an offence if the retailer possesses vaping goods in less than commercial quantities at a retail premise. The maximum penalty is 12 months imprisonment or 1,400 penalty units (currently $154,000), or both. However, the retailer is not guilty if the possession is authorised, or the goods are for lawful personal use and not more than the permitted quantity.
Permitted quantity, of a kind of vaping goods, has the same meaning as in the Therapeutic Goods Act 1989 (Cth), section 41QD(10).
Retailer, in relation to retail premises in New South Wales, means the following:
- an owner, lessee or occupier of the retail premises;
- a person conducting a business or undertaking at, or in connection or association with, the retail premises;
- a director, officer or agent of a person referred to in point one or two;
- a person performing work in any capacity, including an employee or a contractor, for, or on behalf of, a person referred to in point one, two or three at or in connection with the retail premises.
Medicines, Poisons and Therapeutic Goods Act 2022 (NSW)
As of this article, the MPTGA has yet to commence. Once it does, the MPTGA will replace the current PTGA, becoming the primary legislative framework for controlling medicines, poisons, and therapeutic goods in NSW. The amendments made to both the PTGA and the MPTGA are identical.
Please click here to access the full Bill.