Under the Smoke-free Environment Act 2000 it is an offence to smoke and use e-cigarettes in smoke-free areas. These include all enclosed and a number of outdoor public places, and commercial outdoor dining areas.
The ban on the use of e-cigarettes in smoke-free public places is intended to protect bystanders from second-hand e-cigarette vapour in areas where it is difficult to avoid exposure. For more information, please visit electronic cigarettes and smoke-free law.
Under section 19A of the Smoke-free Environment Act 2000 the NSW Health Secretary (or delegate) may, by order in writing, exempt any person who smokes an e-cigarette at the premises of an existing e-cigarette retailer from sections 7 and 8 of the Smoke-free Environment Act 2000.
The retailer should have previously notified the NSW Health Secretary (or delegate) under section 39 of the Public Health (Tobacco) Act 2008 of their intention to engage in e-cigarette retailing. For more information please visit notification of e-cigarette retailing.
Retailers that sell tobacco products are not eligible for the exemption. The exemption does not cover smoking of tobacco or non-tobacco smoking products including ‘heat-not-burn’ products containing tobacco.
Any exempted e-cigarette only retailer premises should be separated from other public enclosed areas or any other retail premises by a solid wall. The intention is to support the ban’s aim of minimising vulnerable bystander’s exposure to e-cigarette vapour in public areas outside the exempted premises.
If an exemption is granted, it will be subject to the following conditions:
Under the Smoke-free Environment Act 2000, "smoke" means use, consume, hold or otherwise have control over a tobacco product, non-tobacco smoking product or e-cigarette that is generating (whether or not by burning) smoke or an aerosol or vapour.
If the conditions listed above are not complied with, the occupier of the premises and any person who has smoked an e-cigarette at the premises may be guilty of an offence under sections 7 and 8 of the Smoke-free Environment Act 2000. The NSW Health Secretary (or delegate) may refuse to grant an exemption if an e-cigarette retailer has previously breached a condition of their exemption or relevant laws.
The above list of conditions is not exhaustive, and the NSW Health Secretary (or delegate) may impose additional conditions at their absolute discretion. An exemption does not override any requirements imposed on a proprietor by a landlord or any other laws.The exemption lasts for three years from the date it is granted unless it is revoked or it expires earlier. The NSW Health Secretary (or delegate) may revoke an exemption at any time by written notice. An exemption expires where the proprietor commences retailing other products than those listed in condition one, including tobacco products.
To avoid operating outside the conditions of an exemption, exempted retailers must immediately advise the NSW Health Secretary (or delegate), if they:
Assessment of applications will include an inspection of the premises. Exempted premises still need to meet all other legal obligations and requirements, including the ban on displaying e-cigarette and e-cigarette accessories, and the ban on selling liquid nicotine.
To apply for an exemption please complete and sign the application form for an exemption.
The person engaging in e-cigarette retailing must make an application for exemption for each premises they wish to be exempt.
An exemption cannot be transferred to another person. If you sell your business to someone else, the buyer will need to apply for a new exemption.
if the location of an exempted e-cigarette retailing premises changes, the exemption holder will need to cancel the old exemption and apply for a new exemption at the new premises.
The exemption lasts for three years from the date it is granted unless it is revoked or it expires earlier. The Secretary or their delegate may revoke an exemption at any time by written notice.
Sampling involves a potential customer trying a product to help them decide if they want to purchase the product being sampled. Factors that may indicate the use of a product is not sampling include:
The following examples are not sampling under condition 4 of the exemption conditions:
Condition one aims to ensure that exempted stores only sell products that would appeal to adults looking to buy e-cigarettes and not appeal to other members of the public. The intention is to avoid attracting bystanders, who are not e-cigarette users, to a store where they may be exposed to e-cigarette vapour.
Examples of products that exempted e-cigarette retailers could sell include:
Exempted premises must not sell or supply any food and drinks. This includes chewing gum and breath mints.
A reason for the exemption for e-cigarette only stores is to minimise disruption on the business model of some e-cigarette only retailers, who allow customers to sample different flavours of e-liquids in their store to decide what to purchase. E-cigarette only stores have also advised that some customers may not know how to use an e-cigarette and staff may need to help them with this. The use of e-cigarettes at an exempted store should be consistent with these reasons for the exemption.
Please note that section 19 of the Public Health (Tobacco) Act 2008 bans providing free samples of e-cigarettes.
