Vaping Regulations Update August 2023

What is happening with vaping?

Smokefree Environments and Regulated Products Amendment Regulations Update August 2023

Dear reader,

This update is targeted at Lion Labs clients and any NZ company that participates in the vaping business and is intended to assist in understanding the regulatory announcements on 24 August 2023. Lion Labs has not, is not, and will not ever be associated with any tobacco company. 

If you have any questions please let your account manager know and we will do our best to answer them or seek further clarification from the Government/VRA if necessary.

Summary:

• A Single-use vaping device is a vaping device that is pre-filled with a vaping substance … that is not designed to be refilled once used.
• A closed pod system is a reusable device.
• Up to 2 flavour words may be used from the specified list for a flavour variant name on a vaping product. Additional non-flavour words like “ice” may be on the package.
• A removable battery is a battery that can be inspected, removed, and replaced, without damaging the battery or the device, by a person using no more than a screwdriver (so it needs to be quite easy to remove/replace without damaging anything).
• A battery pack is counts as a battery
• Single-use devices are required to have removable batteries and child safety mechanisms by 21 December 2023 and re-usable devices by 21 March 2024.
• A child safety mechanism includes a multi-press button/s and a 10minute auto turn off timer.
• New nicotine limits: (1) Single-use vaping devices now have a maximum nicotine content of 20mg/mL (which is the same as saying 35mg/mL of nicotine salt). (2) 50mg/mL salts are still allowed in pods and bottles (because 50mg/mL of nicotine salt is the same as 28.5mg/mL of nicotine equivalent content).

Changes required for “Single-use Vapes”:

Firstly, what is a Single-use vape?

Single-use vaping devices have now been defined as “a vaping device that is pre-filled with a vaping substance … that is not designed to be refilled once used” – note the definition is based on the design feature of being refilled with vape liquid. If the device CANNOT be refilled with vape liquid then it is single use – even if the battery is rechargeable/replaceable/reusable etc. An important note is that replacing a pre-filled pod designed for a closed pod system is considered a refill – so closed pod systems are therefore re-usable not single-use.

A Single-use vaping device is considered to be its own container and therefore must meet all the labelling requirements that normal E-Liquid bottles must meet already (eg. ingredient list, batch number, manufacturer information, expiry date, pg:vg ratio, nicotine concentration in mg/mL, etc) so any single-use devices that manage to comply with the child safety mechanism and removable battery regulations will have a lot of text on them.

From 21 December 2023 – NZ retailers must only sell single-use products that meet the updated product safety requirements.

Flavour naming restrictions:

There is now a set list of words that manufacturers may choose from for flavour names of vaping products. Up to 2 flavour words may be used from this list on each product. Any new notifications must comply with these rules by 21 October 2023, and all products sold in NZ must comply with these rules by 21 March 2024.

No flavours have been banned, rather just what you may call them – so in a sense it is a ban by stealth.

Removable batteries:

“A vaping device must have a removable battery”. Removable batteries will be required for ALL vaping devices, (ALL includes ALL, no exceptions).

What is a removable battery? It is "a battery that can be inspected, removed, and replaced, without damaging the battery or the device, by a person using no more than a screwdriver" (so it needs to be quite easy to remove/replace without damaging anything). As long as there is a battery that can be removed and there is still another component that could be called a device after the battery has been removed that will satisfy the definition.

What is a battery? the new regulation defines a battery as "1 or more batteries or battery packs used at the same time to power a vaping device" - which is not a very helpful definition (basically: a battery is a battery that powers a vaping device), but given all devices must have a "Removable battery" the wording in the new regulation regarding removable batteries makes it clear that there is separation between device and battery.

We believe the reasoning for this requirement lacks a sound foundation and as we have said in the past it is possible that requiring a battery to be removable could reduce safety rather than improve it.

Nevertheless, single-use devices are required to have removable batteries by 21 December 2023 and re-usable devices by 21 March 2024.

Child safety mechanisms:

Child safety mechanisms will be required on ALL devices, (ALL includes ALL, no exceptions).

What is a child safety mechanism? It is a mechanism or combination of mechanisms that (a) requires at least 2 simultaneous (like taking a screen shot on a phone) or 5 sequential operations (like turning on/off a caliburn) before the vaping device is activated; and (b) automatically deactivates the device within a period of no more than 10 minutes after vaping has stopped.

Single-use devices are required to have child safety mechanisms by 21 December 2023 and re-usable devices by 21 March 2024.

This is a massive shake up, the regulation essentially bans all closed pod systems and all low and high wattage reusable devices currently on the market in NZ.

Nicotine strengths:

The maximum limit for nicotine salts has been redefined. Previously it said “The strength of nicotine salt in a vaping substance must not exceed 50 mg/mL.” – this meant that when using the most common type of nicotine salt (nicotine benzoate) the nicotine equivalent content maximum was 28.5mg/mL, but some notifiers/importers/manufacturers misinterpreted this. To avoid further confusion the Ministry has changed the wording to: “For a vaping substance that contains nicotine only in salt form and is intended for use in a reusable vaping device, the concentration of nicotine must not exceed 28.5 mg/mL.” and a new clause replaces the old 20mg/mL freebase limit: “For all other vaping substances, the concentration of nicotine must not exceed 20 mg/mL.”

The effect of these changes is that Single-use vaping devices now have a maximum nicotine content of 20mg/mL (which is the same as saying 35mg/mL of nicotine salt). 50mg/mL salts are still allowed in pods and bottles (because 50mg/mL of nicotine salt is the same as 28.5mg/mL of nicotine equivalent content).

Notification requirements for general retailer of notifiable products:

By 1 October 2023, General retailers that sell Tobacco, Mint, and Menthol flavoured vaping products must inform the regulator via an annual notification that they are a seller of vaping products.

Specialist Vape Store Location restrictions:

After 21 September 2023 Specialist Vape Retailers will not be granted any new Approved Vaping Premises within 300m of a school or marae. Method of measurement not defined so we would assume that this is measured boundary to boundary as the crow flies.

Other notes:

Additional labelling/packaging restrictions (similar to the no depictions of food rule): Vaping product/packaging will be prohibited from depicting a cartoon or toy on and from 21 March 2024.

Additional SVR/AVP criteria: the Director-General must be satisfied that the applicant understands its obligations under the Act (including in regard to sales to minors).

New Definitions:

Activate, in relation to a vaping device, means to turn on the vaping device so that it can be used to vape

Battery, in relation to a vaping device, includes 1 or more batteries or battery packs used at the same time to power a vaping device

Child safety mechanism means, in relation to a vaping device, a mechanism or combination of mechanisms that—

(a) requires at least 2 simultaneous or 5 sequential operations before the vaping device is activated; and

(b) automatically deactivates the device within a period of no more than 10 minutes after vaping has stopped

Deactivate means, in relation to a vaping device, to turn off a vaping device so that it cannot be used to vape

Refilling, in relation to a vaping device, means adding a vaping substance or heated tobacco product to a device so that it can be vaped, whether adding it directly or by using a pod, cartridge, or similar storage container

Removable battery, means a battery that can be inspected, removed, and replaced, without damaging the battery or the device, by a person using no more than a screwdriver

Reusable vaping device, means a vaping device other than a single-use vaping device

Single-use vaping device, means a vaping device that is pre-filled with a vaping substance or heated tobacco product and that is not designed to be refilled once used