Following the 2020 election Labour looked at new policies to bring into the Smokefree Environments and Regulated Products Act (SERPA) to fix what they saw as some outstanding issues with the Act.
One of these issues was disposable vapes. They received advice that they couldn’t just ban disposable vapes out right.
So, they looked at ways to ban it by the back door.
One of these ways was to require single-use vaping products to have a removable battery. They included this proposal in a policy consultation paper that went out to the public, which the public then had the ability to submit on.
However, when the regulations were drafted and came into law, it was clear that they had made a mistake and the removable battery requirement was to apply to ALL vaping products, not just single use ones.
So, while trying to ban disposables via a dopey back door, they accidentally went and banned all vaping products by requiring them all to have a removable battery.
They looked at fixing it before the election but eventually just gave up and went to the polls. By going back to late 2020, it puts Ayesha Verrall very much in the hot seat.
By October 2022 it was then only on disposables, with MoH sounding that they did not want more regulations.
“…we did not recommend any changes to existing vaping versions to the Health Committee. These provisions are relatively new and the public health sector’s ability to enforce the new vaping provisions has been compromised by its role in the COVID-19 pandemic response. A concerted compliance and enforcement effort must be undertaken before determining whether such changes are needed, and this will be a focus of the smoke free work programme over the next four years.”
In other words, the Ministry of Health wanted to let existing regulations bed down and the only thing of focus was disposables. Before Christmas 2022 the only mention of batteries was in electrical safety regulations.
Noting this was going through at the same time as the SERPA ‘smoked tobacco’ act was completing its parliamentary stages, it does feed into the cock-up theory, as they passed that bill and immediately went into regulation consultation.
Especially when, in January 2023, out comes the consultation document extending it to all vaping devices despite the Regulatory Impact Statement on 9 May 2023, seemingly suggesting the removable battery ban was wrong/unnecessary for reusable devices.
Experience has shown that both Chris Hipkins and Ayesha Verrall’s claims on 06 June 2023, at the post-cabinet presser, that these changes would “effectively curtail the availability of much cheaper single-use vapes” has been massively wrong.
At the same press conference Ayesha Verrall made a rather prophetic statement.
I can now inform you that, as a result of this rather ham-fisted way to back door ban vaping products, the Government is now being sued by one major player. That player has already won one case related to regulations made at approximately the same time. Further, the case appears to hinge on the fact that the Ministry of Health is using regulations in a perverse and “improper” manner to effect a ban on vape devices.
Which now brings me to documents leaked to me by a whistleblower inside the ministry who is concerned that both the ministry and the former minister have exposed the taxpayer to millions of dollars of compensatory losses as well as real risk of breaching our FTA with China.
On 26 July 2023, just a month after Chris Hipkins and Ayesha Verrall informed us of the new regulatory environment, Crown Law advises Ministry of Health on legality concerns over removable batteries in all vapes. MFAT were also concerned that the proposed regulation was the “most trade restrictive” of the options. MBIE were also concerned that the proposed regulations were “problematic due to other Li-on [lithium-ion] devices”.
The Ministry of Health is now in full back-pedal mode and has issued a new briefing paper to Ayesha Verrall pointing out the screw up and noting the concerns of Crown Law, MFAT and MBIE. This briefing paper exposes the size of the problem that the Government is exposed to, but, by now, Labour knew they were toast in the election and so did NOTHING, leaving this landmine for the incoming Government to deal with.
This regulatory cock-up has now initiated at least two law suits, a potential FTA breach with China as well as set a precedent for Li-on batteries used in laptops, cellphones, hearing aids, ear pods, electric shavers and a multitude of other products freely and currently available in stores nationwide.
The Ministry of Health has, via their advice, now effectively said that if these batteries aren’t safe in vapes then they aren’t safe in any other device.
The cost to taxpayers is enormous. The Government really only has one possible response, assuming they are even aware of the issue.
That is to rescind these regulations ASAP via an Order in Council.
That’s the ONLY way to effectively end expensive law suits that, by Crown Law assessment, they’ll lose.
There will be more to come on this as further information comes to hand.
