REGULATIONS: EXPECTED TIME LINE AND WHAT ABOUT THE THREE FLAVOURS?

Last week Associate Minister of Health Hon. Jenny Salesa made a statement to media that fired up the vaping community.

On flavours she said:

“The legislation that I am about to introduce ahh to the house will ban most flavours, umm, I will be allowing umm at the moment at least three ahh which includes ahh tobacco, umm menthol and mint.”

And with regard to advertising and promotions:

“Similar to tobacco, we will ban advertising, umm social media, umm all of that is not going to be allowed ahh under the new legislation, ahh discounts two-for-one all of that is not going to be allowed.”

It is rare for bills that are introduced by the governing party to be defeated, so we need to look at how much time we have as a community and industry before any “proposed flavour bans” or “complete ban on advertising” could potentially come into effect, and therefore how much time we have and what opportunities we have to influence the outcome. To do this, it is important to understand the New Zealand legislative process.

How long till regulation?

Being in New Zealand means we have a modern democracy with well defined opportunities to influence any proposed legislation as it moves through the process. The government is due to introduce amendments to the Smokefree Environments Act (SFEA) in the next few weeks, here is how the process works:

Introduction (est. early October 2019): The bill is ‘Introduced’ into the house, this administrative process is later announced in the House. A bill has no formal existence until it is introduced and the proposed bill will be available for the public to view following introduction. See on the info-graphic (from parliament) that consumers, charities and businesses can still lobby Jenny Salesa on the proposed legislation up untill its introduction next month - there are a number of ways you can do this and we explain them below in the How can you Help? section.

First reading (est. October - December 2019): This is when Salesa’s long awaited bill will get its first airing in parliament and we will be able to see debates on the bill from MP’s. We will learn more about which MPs support the bill and who do not. At the end of the debate the House decides if a bill should progress by voting on whether it should be ‘read a first time’. If a bill is defeated in the vote, that is the end of the bill - it will be withdrawn. If the ‘first reading’ is agreed, the bill is referred to a select committee to be considered in more detail.

Select Committee (est. 6 month process): The Select Committee is when members of the public have the highest chance of influencing proposed Vape regulations. A select committee is a committee made up of a small number of parliamentary members appointed to deal with particular areas or issues. The committee usually has 6 months to examine the bill and prepare a report for the House. Select committees normally invite public submissions on a bill and then they hold public hearings to listen to some of those who made submissions. After hearing submissions they work through the issues raised, and decide what changes, if any, should be made to the bill.

When the select committee calls for public submissions, this is when you have another opportunity (possibly the most important one) to make your opinion heard and to push back on proposed flavour bans and any other overreaching proposals that may be included in the bill.

The public submissions phase of the select committee is the most crucial time to influence the process as it has the most likelihood of influencing the Select Committee report on the bill and if a large number of submissions are received may result in favourable changes being recommended in the committees report. You can contribute to favourable legislation by writing a compelling submission on how vaping has impacted you and how flavour bans or other possible restrictions will impact future smoker conversions and ultimately negatively impact the heath of New Zealanders including you and your loved ones.

The Smokefree Environment Act amendments will be heard by the Health Select Committee. Current members of this committee are:

Chairperson - Louisa Wall - Labour Party – Manurewa louisa.wall@parliament.govt.nz

Deputy – Chairperson -  Shane Reti - National Party – Whangarei shane.reti@parliment.govt.nz

Member - Maggie Barry - National Party - North Shore maggie.barry@parliament.govt.nz

Member – Liz Craig - Labour Party – List liz.craig@parliment.govt.nz

Member – Matt Doocey - National Party – Waimakariri matt.doocey@parliment.govt.nz

Member - Ruth Dyson -  Labour Party - Port Hills ruth.dyson@parliment.govt.nz

Member - Jenny Marcroft - NZ First Party – List jenny.marcroft@parliment.govt.nz

In advance of the bill being introduced, it is definitely worthwhile contacting these members of the committee (in addition to your local MP, Hon Jenny Salesa and Hon Dr David Clark) to pre-empt them on opposition to flavour bans and other excessive restrictions.

Second reading (est. April 2020 - December 2020): During the second reading, members of the public can lobby MP’s to vote for or against a bill, however during this stage there is limited ability to affect changes to the bill other than attempting to get a member to vote for or against. This is why the select committee stage is the most crucial time for getting involved in the process. A bill can be read a second time no sooner than the third sitting day after the select committee reports to the House. Members can then debate the main principles of a bill, and any changes recommended by the select committee in its report. Changes not supported by every committee member are subject to a single vote at the end of the second reading debate. Changes that are supported by every committee member are automatically included in the bill if the second reading is agreed. If the vote is lost, that is the end of the bill. If the second reading is agreed, the bill is ready for debate by a committee of the whole House.

Committee of the whole House: Again, during this stage members of the public can only lobby MP’s to attempt to make changes or introduce supplementary order papers. Any member of the House can participate when a committee of the whole House debates a bill. The members sit in the Chamber but the Speaker does not take the chair. The debate is less formal than other debates, but just as important. Members have many chances to make short speeches and debate the provisions of a bill. These debates are a chance to examine the bill in detail. Ministers and members can propose changes. These changes may be published before the debate in a supplementary order paper (SOP). Once the final form of a bill is agreed, it is reprinted to show any changes that have been made. The bill is then ready for third reading.

Third reading (est. October 2020 - December 2021): This is usually a summing-up debate on a bill in its final form. The vote at the end of the debate is the final vote in the House to either pass the bill or reject it. Bills are rarely rejected at this stage. If the bill is passed there is one final step before it becomes law.

Royal Assent: A bill is not a law until it is signed by the Sovereign or the Sovereign’s representative in New Zealand, the Governor-General. This is called the Royal assent, a formality that usually occurs within a week of the third reading.

Grace Period: There is likely to be a grace period of compliance for the legislation. The length of the grace period may vary for different components of the legislation; for example flavours may be allowed to phase out over a 12-month period while advertisements may be required to stop within 3-months of the Royal Assent. All in all, its entirely possible that we are still looking at a further 20 - 36 month period without regulations being enforced.

So what happens now?

It is very difficult to place a timeline on a new bill. A recent example of legislation that stands out as going through the process lightening fast is the The Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill that only took 11 days from being first introduced until Royal Assent (1/04/2019 – 11/04/2019). However, the law only took effect in June 2019 and has a buyback grace period until December 2019. This bill was obviously pushed through in the wake of the Christchurch terror attack (8 months from start to finish is lightening quick in political terms) and it is extremely unlikely that the E-Liquid regulations will be rushed through under such urgency.

To get a clearer picture of what we are working with we must look at previous bills and understand their legislative timelines and grace periods before they were enforced.

Health (Drinking Water) Amendment Bill

The legislative process took 391 days from introduction to Royal Assent and no grace period. Even with healthy drinking water our legislative process still took over a year to make small changes aimed at protecting the health of New Zealand’s population.

Introduction to enforcement – 391 days

Tobacco Point of Sale prohibition

This legislative process took 228 days from introduction to Royal Assent, a further 12 month grace period was afforded to retailers from date of the Royal Assent.

Introduction to enforcement - 593 days.

Contempt of Court Bill

This legislative process took 522 days from introduction to Royal Assent, a further 12 month period was afforded from date of the Royal Assent until enforcement.

Introduction to enforcement - 887 days.

Trusts Bill

This legislative process took 728 days from introduction to Royal Assent, some parts of the bill were effective the day following the Royal Assent whilst most of the law did not come into force until 18 months after the Royal Assent.

Introduction to enforcement - upto 1276 days.

Smoke-free Environments (Tobacco Standardised Packaging) Amendment Bill

This legislation took 1002 days form introduction to Royal Assent. The grace period afforded to Tobacco companies was quite extraordinary - 2 years. The bill wasn’t enfored until June 2018.

Introduction to enforcement – 1642 days

Unlike Tobacco products the government doesn’t need to protect any exorbitant excise tax that it collects from Vaping products, and so its unlikely we will see a 1642 day lead in time until enforcement on vaping advertising, for example. Whilst it is reassuring to our industry that we are not likely to see any changes enforced anytime soon this is not an excuse for us to become complacent. We need to work co-operatively and constructively to make our points clear any opportunity we have. In three weeks time we are likely to have had our first look at the proposed legislation that has the potential to change our industry dramatically. Lets make sure we use that three weeks to let the Labour government know the cold hard truth…banning flavours will directly result in more smoking related illnesses and deaths.

How can you help?

Things you can do now:

Like AVCA on Facebook to keep up to date with the leading consumer advocacy organisation in New Zealand - these people represent us all! Donate to AVCA if you can.

Join the Kiwis Against The Flavour Ban group and page on Facebook to see many stories from people that used vaping to quit smoking, share your story with them. After that you can use what you’ve written to form an email to the politicians.

Educate yourself on the history, the benefits of vaping for cessation, the health risks, and what regulations have been implemented overseas.

Salesa has not introduced the bill yet, so it is not yet in its final form. There is opportunity now, over the next 3 weeks to influence the draft of the bill by writing to her and the Minister of Health. You can get your message across!

Hon Jenny Salesa j.salesa@ministers.govt.nz

Hon Dr David Clark david.clark@parliament.govt.nz

Later down the track, Salesa cannot pass this legislation without the majority support of parliamentarians. That means over 50% of parliament must agree with her bill on the third reading.

After the first reading in parliament it will be a good time to write to your local MP and the members of the Health Select Committee (above) in the way that suits you. If you come at things from a more emotive point of view then tell your MP about your story or the story of a loved one that has been helped by electronic cigarettes. If you are a facts and figures person then show to your local MP with some numbers and research how a flavour ban would lead to a reduction in vaping uptake by smokers and hence smoking cessation, and therefore how a flavour ban will result in increased lives lost. Here is a great example of a letter written to a local MP.

Some politicians are pragmatic and sensible… like Norman Lamb from the UK: