New Zealand Law Society - Parts of vaping bill inconsistent with Bill of Rights Act

Parts of vaping bill inconsistent with Bill of Rights Act

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Provisions of the Smokefree Environments and Regulated Products (Vaping) Amendment Bill which prohibit advertising, promotion, or sponsorship of vaping products and smokeless tobacco devices are inconsistent with the right to freedom of expression affirmed in section 14 of the New Zealand Bill of Rights Act 1990, Attorney-General David Parker says.

Mr Parker's report on the bill as required by section 7 of the NZBORA has been tabled in Parliament.

The bill amends the Smoke-free Environments Act 1990 to regulate vaping liquid (with and without nicotine), devices and components, and smokeless tobacco devices. It extends many of the existing provisions of the Act to vaping products and smokeless tobacco devices.

The report says a number of the clauses in the bill contain provisions that engage the right to freedom of expression (as affirmed by section 14 of NZBORA). These include the prohibition of advertising of regulated products, subject to certain limited exceptions, restrictions on the use of trademarks and company names - including parts of company names - related to the sale of regulated products, and a requirement for standardised packaging on regulated products, as well as health messages and other information required by regulation.

"The focus of my concern with this bill is whether the extensive restrictions on the advertising of regulated products (contained in Part I, subparts 1 and 2) are justifiable under the Bill of Rights Act, given the limitations on the evidence of harm identified...".

Mr Parker says the bill seeks to achieve several objectives. With the provisions prohibiting advertising and marketing, the objective is to protect the health of the public, particularly young persons, from the potential ill effects of vaping and smokeless tobacco products.

"The protection of public health is an important objectie, especially in regard to vulnerable groups such as children. In the abstract, such an objective can justify limitations on rights protected under the Bill of Rights Act. However, the importance of such an objective in context will be contingent on the evidence supporting the legitimate risk of harm which the public requires protection from."

Mr Parker says he considers that the objective underlying these provisions is sufficiently important to justify some limits on the rights protected in the Bill of Rights Act.

After discussion of the health impacts of vaping and the available evidence of harm, the report concludes that a blanket prohibition of the advertising of vaping products is a proportionate response given the lack of evidence for their being harmful. In contrast, blanket bans on advertising in the context of smoking can be justified due to the strong evidence of significant harm caused by smoking and the effectiveness of tobacco packaging.

"Given the broad nature of the advertising restrictions and in light of the limited evidence for harm associated with vaping, I do not consider this limit on freedom of expression to be in due proportion to the importance of the objective. I therefore conclude that this limit on section 14 of the Bill of Rights Act cannot be justified."

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