E-cigarette message up in smoke

E-cigarettes are still available in Western Australia despite a landmark court finding which ruled the devices can not be sold in WA.

While some outlets may be doing so knowingly, workers at several Perth stores did not appear to properly understand which products were legal and which were not.

An April court ruling on Perth man Vincent van Heerden, who was selling e-cigarettes online, found him guilty of breaching the Tobacco Control Act by selling a product designed to resemble a cigarette, setting a precedent regarding the product’s legality.

A Health Department spokeswoman told Fairfax Media “the decision in the Supreme Court confirms the department’s position that the sale of electronic cigarettes are prohibited in WA. No one should be selling e-cigarettes in WA”.

“All forms of e-cigarettes are covered by the legislation.  There are no exemptions,” she said.

But staff at several Perth shops still selling the items on Wednesday were confused, with many saying e-cigarettes and vapourisers, or ‘vapes’, were different things.

According to the Health Department, the two are the same.

One shop worker said they were not doing anything illegal because nicotine was not being used in the devices. Another said their products were not designed to be used with nicotine.

Another staff member said their products did not resemble cigarettes so they were not illegal.

The issue is then around perception in regards to what constitutes resembling cigarettes.

The e-cigarettes that Mr van Heerden was fined for selling did not contain nicotine and were designed to be used with other substances known as e-juice, but they resembled cigarettes.

While they were not obviously a replica of a traditional cigarette, the e-cigarettes available in the Perth stores looked similar to those that Mr van Heerden was fined over.

His lawyer Michael Perrella said the judge’s decision wasn’t based on the physical appearance of the product itelf “but what was described as how it was used and whether the vapour resembles smoke from a cigarette”.

One of the staff members said they keep up to date with information on the Health Department’s website about what was legal – which states products that resemble cigarettes, regardless of whether they contain nicotine, are illegal.

The information does not specify what constitutes resembling such a product.

A staff member at another store said they used to sell e-cigarettes but they no longer stocked them after a raid by the Health Department a few years ago.

A department spokeswoman said there would be no further public education on the matter because the information was available online.

She said the department investigates complaints and inspects stores on a regular basis.

It was likely offenders would be charged if found selling e-cigarettes.

Online presence

The products are also being sold online in Western Australia.

An advertisement on Gumtree.com on Wednesday showed the product for sale by a person called Bill in Inglewood.

When Fairfax Media contacted Bill, he said he was a senior trying to supplement his income because of tough financial conditions.

He said he had bought the products overseas and had only been selling them for a few weeks.

But after learning the product was illegal, he removed the advertisement.

The use of e-cigarettes is not illegal in WA and users are still able to purchase products for their own use from sellers in other states.