In any reasonable top-10 list of things the Parliament's health experts should be working on, the pandemic takes every slot. So why is the Health Select Committee right now working on regulating vaping?
Daily reports show frontline health workers unable to access protective equipment. Hospitals are rapidly updating procedures to deal with Covid-19 while still providing normal health services. Some suppliers of critical medical equipment and pharmaceuticals are in countries with export bans on health supplies. There will be countless consequences of lockdowns and disrupted supply chains.
Dealing with it all requires nimble updates and modifications to legislation and regulations, on a temporary basis, so New Zealand's health system can respond as needed. Even if Parliament and its ministries give the pandemic their complete attention, some things will fall through the cracks.
Anything unrelated to the response would be critically urgent to warrant any Government attention. It is really difficult to see how vaping regulation possibly makes anyone's top-100 list, let alone a top-10 list in a pandemic.
Since vaping was deemed legal in March 2018, the industry has regulated itself (largely successfully). Getting a regulatory framework in place for vaping is important, but it is hardly urgent. It can surely wait another month or two.
Why is Parliament rushing through the Select Committee process for the Smokefree Environments and Regulated Products (Vaping) Amendment Bill? Submissions close April 1, with no extension provided due to the current lockdown or more pressing parliamentary priorities.
It is worth walking through how this came about because it leads to some rather dismal conclusions.
In March 2018, the courts decided the Smokefree Environments Act never really banned the sale of tobacco products which are neither burned – like a cigarette or cigar – nor chewed. While the Ministry of Health always held that vaping, heated tobacco products and Swedish snus were covered under the ban on chewing tobacco, the courts saw the case differently.
As a result, vaping was legalised through a unique mechanism: a court found it had never been illegal in the first place. But that meant legalisation emerged without an authorising regulatory framework.
The Government then began building its framework while many smokers shifted to vaping. Community health activists, retailers and other vapers helped to inform smokers about alternatives that could save their lives and smokers chose from the options that worked best for them.
The vaping community grew. Without Government health officials telling anyone what to do, people found their own paths out of smoking, then told their family and friends to help them make the switch. Specialist vape shops helped people switch, and broad access to vaping supplies in dairies helped communities underserved by specialist shops.
The growth of the vaping community created a problem for a Cabinet scared by media stories about "vaping-related" deaths in the US and constant media stories about youth vaping. Even early on, it was obvious that American health issues had nothing to do with vaping in New Zealand but rather were due to illicit cannabis vaping products contaminated with Vitamin E oils.
Action on Smoking and Health's Year 10 surveys consistently show that while many younger people experiment with vaping, vanishingly few youths pick it up – and those who do would have otherwise likely smoked cigarettes.
But a moral panic fuelled the New Zealand Government's demand for tightly restricting advertising and flavourings, following some US states.
It is much easier to tightly regulate something that few people use than something with a broad base of users. If the Government bans or restricts something nobody uses, it is hard for people to see what they are missing. Taking away something people rely on to quit smoking, and that improves the health and wellbeing of their families, is much harder.
Associate Minister of Health Jenny Salesa then faced a difficult problem. Her Cabinet colleagues wanted tight restrictions while her officials advised that vaping should be encouraged as an alternative to smoking. That made her draft legislation more restrictive than the health evidence warranted and was sure to draw close scrutiny at Select Committee by the large community of vapers.
This is likely why the Health Select Committee has decided not to extend the deadline for vaping submissions with the alert level 4 lockdown.
Thousands of smokers' lives have been improved by switching to vaping. The Government could reasonably have expected the Select Committee would hear testimony from many of them.
That testimony would have explained how Auntie had finally quit smoking after decades because she liked some flavour the Government was about to ban at her local dairy. Or about how an advertisement for a vaping product revealed a new way out of a lifetime of smoking. Or how talking about vaping with the guy at the dairy helped them to choose a great product – something that will be banned under the current legislation.
Smokers and ex-smokers generally come from strongly disadvantaged communities. Submissions from the vapers who buy those products at the local dairy would be might have been written by people reliant on library computers that are now inaccessible. Lockdowns make it impossible to show up at Select Committee and submissions by internet video automatically exclude anyone without the necessary equipment at home.
There is nothing urgent about this legislation. The process could easily have been delayed, as could the date by which the Select Committee must report back to Parliament. The simplest explanation as to why is that the Government does not want the Select Committee to hear from vapers.
Letting members of disadvantaged communities tell their life-changing stories, and letting them testify about how the proposed legislation would have banned their path out of smoking, would make it too hard for the Government to push this legislation.
The Government knows that maintaining the Select Committee timetables disenfranchises the voices of communities which might be critical of this legislative process. That is the point of its decision to carry on as usual. They are ramming it through, despite the Attorney-General's having concluded that parts of it are inconsistent with the New Zealand Bill of Rights Act 1990, despite the disenfranchising of the community the legislation affects, and despite the Select Committee's members having rather more important things to attend to in a pandemic.
It is a pantomime of a parliamentary process and an utter disgrace.
- Dr Eric Crampton is Chief Economist with The New Zealand Initiative.