Under section 7 of the Smoke-free Environment Act 2000 it is an offence to smoke and use e-cigarettes in a smoke-free area. Section 8 of the Smoke-free Environment Act 2000 also sets a rule that occupiers are not to allow smoking, including using an e-cigarette, in any enclosed public place or commercial outdoor dining area on their premises.
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 webpage.
E-cigarette only stores may apply for an exemption
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 the notification of e-cigarette retailing website.
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.
Information for e-cigarette only retailers before applying for an exemption
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:
- Any business carried on at the premises must only sell or supply e-cigarettes, e-cigarette accessories and products that are necessary for the use or maintenance of e-cigarettes or e-cigarette accessories.
- The proprietor ensures through signage and checking proof of age that persons under the age of 18 are not allowed to enter the premises.
- E-cigarettes must only be smoked in an area of the premises that is not visible to people outside the premises.
- Smoking of e-cigarettes on the premises must be limited to sampling or instructing on the use of an e-cigarette or e-cigarette accessory.
- A copy of the order must be conspicuously displayed at the premises at all times to ensure members of the public at the premises can clearly read this order.
- The proprietor must take reasonable steps to prevent the aerosol or vapour from any e-cigarette or e-cigarette accessory at the premises from penetrating other premises and smoke-free areas under the Smoke-free Environment Act 2000.
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:
- cease trading
- relocate their business to another premises
- start selling tobacco products
- plan to alter any structure between their business and any other premises
- fail to meet any of the other conditions of their exemption.
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.
Apply for an exemption
To apply for an exemption please complete and sign the application form for an exemption.
What does the exemption cover?
- The exemption covers the use of e-cigarettes at exempted premises according to the exemption conditions.
- The exemption does not cover smoking of tobacco products or non-tobacco smoking products, including ‘heat-not-burn’ products containing tobacco.
- Exempted premises still need to meet all other legal obligations and requirements, including the ban on displaying e-cigarette and e-cigarette accessories.
- The exemption does not override any requirements imposed by a landlord or other laws.
Can one application for exemption be made for a number of premises under the same business?
No. The person engaging in e-cigarette retailing must make an application for exemption for each premises they wish to be exempt.
Will a business’s exemption transfer if it is sold to someone else?
No. 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.
Can the location of an exempted e-cigarette retailing premises change?
No. The exemption holder will need to cancel the old exemption and apply for a new exemption at the new premises.
How long does the exemption last?
- 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.
- An exemption expires where:
- the proprietor commences retailing other products than those listed in condition one, including tobacco products.
- the e-cigarette retailing business ceases.
- the e-cigarette retailing business moves to another premises.
- the original applicant is no longer carrying on the e-cigarette retailing business.
What is sampling or instructing on the use of e-cigarettes?
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 amount of product being used
- the length of time the product is being used
- any other activities the user may be undertaking while using the product.
The following examples are not sampling under condition 4 of the exemption conditions:
- A person vapes the same or different products for more than a short period of time in the store.
- A person buys products in the store and then stays in the store to vape the products.
- A person brings their own e-cigarette and e-liquid into the store and vapes them whilst there.
- A person plays pool or watches television in store while vaping.
- An employee vapes in the store.
This list is not exhaustive.
What happens if a business has lost or damaged their exemption order?
- A lost or damaged exemption order will be replaced by the NSW Ministry of Health upon request.
- Businesses may laminate their exemption order if they want to.
What are products that are necessary for the use of maintenance of e-cigarettes or e-cigarette accessories?
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:
- e-cigarettes that do not contain tobacco or nicotine
- e-liquids (the liquids heated in e-cigarettes) and e-cigarette accessories as defined in section 4 of the Public Health (Tobacco) Act 2008
- equipment to mix e-liquids such as empty bottles, droppers
- equipment for filling e-cigarettes such as droppers and syringes
- materials to make coils such as rolls of wire
- e-cigarette carry cases, holsters and battery cases
- tools for making coils such as pliers
- cleaning tools.
Exempted premises must not sell or supply any food and drinks. This includes chewing gum and breath mints.
Why is the exemption limited to sampling and instructing on the use of an e-cigarette?
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.