New e-cigarette laws and other changes to tobacco laws in South Australia
On 31 March 2019, the Tobacco Products Regulation Act 1997 was renamed the Tobacco and E-Cigarette Products Act 1997. The new Act includes laws for electronic cigarette (e-cigarette) products, increases in penalties and expiation fees, a new definition of ‘shisha’ and other minor administrative changes to improve the function of the Act.
The new laws are detailed in the Tobacco and E-Cigarette Products Act 1997 (the Act), and the Tobacco and E-Cigarette Products Regulations 2019.
The regulation of e-cigarette products in South Australia is focused on protecting the community from the potential harms of e-cigarettes, and reducing the likelihood that children will be attracted to these devices, while still allowing adults to access these products. E-cigarette products are regulated in a similar way to how tobacco products are regulated.
New e-cigarette product laws
As of 31 March 2019, the sale and supply of e-cigarette products
Under these laws, it is an offence:
- to sell or supply e-cigarette products to a person under the age of 18 years;
- to sell e-cigarette products by retail without a Retail Tobacco and E-Cigarette Merchant’s Licence;
- to provide or offer to provide free samples, prizes, gifts or other benefits (including through sponsorship, competitions and rewards) in connection to the sale of e-cigarette products;
- to sell e-cigarette products from temporary outlets, sales trays and vending machines; and
- to use e-cigarettes in public places that are currently smoke-free under the law, including in a motor vehicle if a child under the age of 16 years is present;
From 1 October 2019, to allow a six month transition period for e-cigarette retailers to make changes to their business operations, it is an offence to:
- advertise and promote e-cigarette products;
- have e-cigarette products on display at the point of sale; and
- sell e-cigarette products by indirect orders (including internet sales).
Adults will still be able to buy e-cigarette products,
For e-cigarette retailers please see: Selling e-cigarettes in South Australia – Retailer Fact Sheet (PDF 336KB)
See also Frequently Asked Questions
Increased penalties and expiation fees under the Act
As of 31
In particular, a new penalty structure for the sale or supply of tobacco product and e-cigarette products to a minor means that a proprietor of a business can be fined up to $20,000 for a first offence and up to $40,000 for a second and subsequent offence, and in any other case (such as an individual vendor), the maximum penalty is $5,000.
New definition of shisha tobacco
As of 31 March 2019, a definition of ‘shisha tobacco’ is provided under section 4(1) of the Tobacco and E-Cigarette Products Act 1997, to make it clear that existing offences related to tobacco products, such as smoking in a smoke-free area, also apply to these products. ‘Shisha tobacco’ is defined as ‘a fibrous plant product (whether or not comprised of or containing tobacco) that is designed for smoking in a shisha, hookah, water pipe or similar device.’
Frequently Asked Questions
What is an e-cigarette product?
An e-cigarette is a device that is designed to generate or release an aerosol or vapour for inhalation by its user in a manner similar to the inhalation of smoke from an ignited tobacco product.
Under the new laws, an e-cigarette is defined as:
- a device that is designed to generate or release an aerosol or vapour for inhalation by its user in a manner similar to the inhalation of smoke from an ignited tobacco product; or
- a device of a kind declared by the Minister by notice in the Gazette to be an e-cigarette.
Under the new laws, an e-cigarette product means:
- an e-cigarette; or
- any part comprising an e-cigarette; or
- a cartridge, capsule or other container designed to contain a liquid, aerosol, gas, vapour or other substance for use in an e-cigarette; or
- a heating element designed for use in an e-cigarette; or
- a battery designed for use in an e-cigarette; or
- a product of a kind prescribed by the regulations.
Is it still legal to buy e-cigarette products?
As of 31 March 2019, adults can still legally buy e-cigarette products that do not contain nicotine. There is no change to the ban on the sale of nicotine for use in e-cigarette products, which is covered under the Controlled Substances Act 1984. Nicotine is considered a dangerous poison under the national Poisons Standard and its access is restricted as a controlled substance under all state and territory legislation. It cannot be lawfully sold in Australia for use in e-cigarettes.
Can e-cigarettes be used in public places that are smoke-free?
As of 31 March 2019, e-cigarettes cannot be used in any area in which smoking is banned under the Tobacco and E-Cigarette Products Act 1997. This includes:
- enclosed public places, workplaces and shared areas, including inside a retail shop;
- motor vehicles if a child under the age of 16 years is present;
- under covered public transport areas;
- near children’s playground equipment; and
- outdoor dining areas and other outdoor areas that have been declared smoke-free.
What is the fine for using an e-cigarette in a smoke-free area?
As of 31 March 2019, the expiation fee (on the spot fine) is $105, and the maximum penalty is $750.
How do these new laws affect on-line sales across state and territory borders?
From 1 October 2019 it will be an offence under the Tobacco and E-Cigarette Products Act 1997 for e-cigarette retailers to sell e-cigarettes by indirect orders such as via the internet. This includes sales by retailers based in other jurisdictions who are selling e-cigarettes into South Australia through on-line sales, as well as businesses based in South Australia selling to local or interstate customers. This aligns with the ban on the sale of tobacco products by indirect means that has been in place in South Australia for many years and will help reduce the availability of e-cigarette products to children.
Further information about tobacco and e-cigarette laws for businesses can be found on the SA Health website: http://www.sahealth.sa.gov.au/tobaccolaws
or contact SA Health's Health Protection Operations by:
- Email: HealthProtectionOperations@sa.gov.au
- Phone: (08) 8226 7100