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Information for tobacco retailers and their employees
The following information can assist all tobacco and e-cigarette licence holders and their staff in understanding the new licence conditions introduced from 10 July 2023.
All licence holders must comply with the new Tobacco & E-Cigarette Product Act 1997 (TEP Act) licence conditions.
* Nicotine for human use is a Schedule 4 poison for the purposes of the Controlled Substances Act 1984 in preparations for human use except:
SA Health has become increasingly aware of the rate of non-compliance with the nicotine provisions contained in legislation. It is noted that some individuals and businesses have taken measures to conceal nicotine as being an ingredient in vaping products and to continue to sell nicotine vaping products (NVPs) in contravention of the law.
All conditions will become effective from 10 July 2023 and licence holders and their staff are required to comply.
However, condition 8 and 9 will apply prospectively (not retrospectively). This means you will not be in breach of the licence condition if you cannot provide the documentation in full for products that you have purchased prior to the commencement date. However, the licence holder must be able to provide supporting information to show that the product was purchased prior to the commencement date to a SA Health Authorised Officer.
Yes, all licence holders are strongly encouraged to conduct a self-audit of their current supplies of vape products and attempt to comply retrospectively. If you cannot adequately determine who the supplier is, or your supplier is not prepared to provide documentation verifying the absence of nicotine, then you should cease selling the product immediately and submit your product for laboratory testing or disposing of them.
An Authorised Officer (AO) will still have power to ask you for this documentation and if it cannot be provided during the inspection, it may contribute to the AO having reasonable cause to suspect that the product contains nicotine. If this occurs, the AO may seize all applicable vaping products from your store and submit them for laboratory analysis to confirm the presence or absence of nicotine.
The documentation can be in the form of a Material Safety Data Sheet (MSDS), statement or laboratory certificate issued by your supplier, importer or manufacturer.
It is well recognised that many vapes are labelled as ‘nicotine-free’ or do not list nicotine as an ingredient, however, laboratory testing has often confirmed its presence. In turn, the label or packaging of a vaping product will not be accepted as documentation by Authorised Officers during compliance inspections.
No, you should not sell any vaping products if you do not have the documentation required by licence condition 8 and 9.
All documents need to be:
What is considered ‘readily accessible’ may depend on the circumstances. The expectation is that the records be produced to an AO immediately or within a reasonable time period. This would mean during the course of the inspection in most instances.
It is important to note if these records cannot be provided to the AO during the inspection, it may contribute to the AO having reasonable cause to suspect that the product may contain nicotine. If this occurs, the AO may seize and retain the product.
There are several local and interstate laboratories that have the capability to test vaping products. Cost range between $200 and $300 and may take one to four weeks for results to be available.
When engaging a laboratory to do nicotine test, it is recommended that the laboratory:
If you cannot provide written verification from the supplier confirming the absence of nicotine, then, you will need to submit products for laboratory testing if you wish to sell or supply them.
In this case, you will have to select a representative sample of each brand and flavour you sell. For example, if you sell two different brands and five flavours of each, you will then need to submit at least ten samples for analysis.
The laboratory certificate must have all product identifying information such as brand, flavour, size and batch number or expiry dates. If you receive another consignment of these products that contain different batch numbers or expiry dates, you may be required to submit the new product for laboratory testing again.
The TGA website contains a searchable register of over 300 vaping products, many of which have been confirmed to contain nicotine. If you sell a product on this list, you are encouraged to stop selling the product until you have sufficient evidence that it does not contain nicotine or you should dispose of it immediately. For more information, visit the TGA's testing of nicotine and vaping products page.
NVPs must not be disposed of through general waste. In accordance with the Environment Protection (Waste to Resources) Policy 2010, a vape is prohibited from being disposed into landfill. There are several local and interstate waste disposal providers who can facilitate the safe, ethical, and lawful disposal of vapes and their contents.
Yes, SA Health Officers are Authorised Officers (AO) under the TEP Act (and CS Act) and may conduct unannounced inspections to verify compliance with the legislation, including licence conditions. AOs are required to carry identification while performing compliance activities and licence holders (or their employees) can ask to see an AO’s ID card at any time during the inspection.
AOs have a range of prescribed powers and some of these powers include the ability to:
When an AO reasonably suspects that a person has committed, is committing, or is about to commit an offence against the TEP Act, they may require the person's full name, usual place of residence and evidence of the person's identity.
Any person who hinders, obstructs an AO or uses abusive, threatening or insulting language may be guilty of an offence and subject to a penalty of $35,000.
Lastly, South Australia Police (SAPOL) Officers are also AOs under the TEP Act and CS Act and may also conduct inspections and investigations as necessary.
Yes, any person who sells, supplies or possess a nicotine product that is not permitted under the CS Act is committing an offence. All employees must understand that they have a personal responsibility to ensure that they do not sell NVPs.
SA Health and SAPOL are authorised under the CS Act and may take action against an individual/employee if necessary.
SA Health Authorised Officers will typically take an educational approach to assist licence holders to comply with their legislative requirements. However, there may be some circumstances where action in the form of a caution, expiation, prosecution, or cancellation of a licence may be warranted.
A failure to comply with the TEP Act, including the licence conditions is an offence and may carry an expiation of $500 or maximum penalty of $10,000.
A variation of licence conditions is considered to be a decision of the Minister. According to section 12 of the TEP Act, licence holders who are dissatisfied with a decision of the Minister may submit an application requesting a formal review. The application must:
Upon receiving an application, the Minister, or his delegate, may:
The Minister, or his delegate, will inform the licence holder of the result of the review in writing. It is important to note, that whilst a review is occurring, compliance with the TEP Act and the licence conditions is still required.
No, your licence does not need to be updated, except as otherwise required by Law (ie expiry, change of ownership). Your licence has been automatically re-issued and supplied to you with the relevant conditions reflected.
The material and information contained on this webpage is for general information purposes only. Licensees should not rely upon the material or information as a basis for making any business, legal or any other decisions. Licensees should refer to their licence issued under Part 2 of the Tobacco and E-Cigarette Products Act 1997 and the licence conditions fixed under section 9 of the Tobacco and E-Cigarette Products Act 1997. Licensees should seek professional or legal advice if they have any questions regarding their obligations under the Tobacco and E-Cigarette Products Act 1997.
If you have any questions about your obligations under the TEP Act or CS Act, email SA Health via firstname.lastname@example.org