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Draft control of tobacco products bill falters over potentially absurd results in law

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Draft control of tobacco products bill falters over potentially absurd results in law

15th May 2018


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The draft Control of Tobacco Products and Electronic Delivery Systems Bill was published on 9 May 2018 for public comment.  The period for public comments expires in August 2018. The Bill ambitiously extends legislative control over tobacco products and both electronic nicotine delivery systems and electronic non-nicotine delivery systems, the latter category commonly known as vaping products.
At its heart, the Bill intends to control and, in certain instances, ban smoking. The treatment of the term "smoke" by the Bill is of interest. The Bill, which will ultimately replace existing tobacco control legislation of 1993, defines the term "smoke" one of two activities: inhaling, exhaling or holding "or otherwise have control over an ignited tobacco product or a heated, but not ignited, tobacco product that produces an emission of any sort" or inhaling, exhaling or holding "or otherwise have control over an electronic delivery system that produces an emission of any sort".  
Two difficulties arise with the definition, in respect of electronic delivery systems. The first is that simply holding a device that constitutes an electronic delivery system constitutes smoking. Such a scenario means that a person holding a device but not inhaling or exhaling the contents in the device that contain nicotine will be considered to be smoking. Such circumstances potentially widen the definition of "smoke" in situations where no smoking per se is occurring. This cannot be the intention of the Bill. The second problem the definition, and consequently the Bill, faces is that one cannot inhale or exhale a system. The definition of the term "electronic nicotine delivery system" describes the system as a "an electronically operated product", which is clearly distinct from a tobacco-based product. The Bill arguably falters over its own definitions and produces potentially absurd results in law, which cannot be the intention of the Bill and ultimately that of the final legislation.
Whilst there is little doubt that controlling tobacco-based products, in the context of smoking and the health effects generally associated with smoking of traditional tobacco products, may have merit, the legal approach to controlling alternative products, such vaping products or similar electronic delivery systems, will have to be bespoke and better suited to take into account the nature of the particular products concerned and the technology that they employ.

Written by Neil Kirby, director and head of healthcare & life sciences practice at Werksmans Attorneys

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