When is a cigarette not a cigarette?
Created: Tuesday, 01 July 2014 12:00
The answer appears to be when it is an "e-cigarette". An e-cigarette operates by vaporising a liquid which may or may not contain nicotine. The "smoker" or "vaper", as they seem to be called, then inhales the vapour.
E-cigarettes do not burn anything and therefore do not generate smoke or ash. They do not contain tobacco or tobacco products. The Smoke-free Environments Act 1990 (Act) deals with the "smoking" of tobacco or other vegetable matter. The Act includes a definition of "to smoke" which means:
(a) to smoke, hold, or otherwise have control over an ignited tobacco product, weed or plant; and
(b) includes to smoke, hold or otherwise have control over an ignited product or thing whose customary use is or includes the inhalation from it of the smoke produced from its combustion or the combustion of any part of it.” (Emphasis added)
An e-cigarette does not involve anything being "ignited" or “combustion” and does not involve tobacco or other vegetable matter. Therefore it seems clear that the use of e-cigarettes is not covered by the Act.
Operators of bars, restaurants and passenger service vehicles are nevertheless free (subject to any other legislative or regulatory restrictions) to set the conditions on which patrons may enter their premises or vehicles and could include a prohibition on the use of e-cigarette as if they were covered by the Act. This should be made explicit by way of signs and printed terms and conditions of entry or carriage as appropriate.
Entry into premises or a passenger service vehicle where the terms of entry or carriage make it clear that the use of e-cigarettes is not permitted will constitute a contract on those terms between the owner/operator and the patron/passenger entitling the owner/operator to require compliance or refuse (continued) entry, service or carriage.
Specific legal advice should be obtained in respect of any proposed conditions and their application.