A Ministry of Health charge against the subsidiary of billion dollar tobacco company Phillip Morris International has been dismissed following a judge-alone trial in the capital.
The District Court of Wellington ruled the tobacco product, HEETS, was not included in the Smoke-Free Environment Act (SFEA) which banned tobacco products for chewing or any other oral use like the Ministry claimed it did.
When used HEETS is not ignited, but heated in a device called IQOS and the process produces an aerosol instead of smoke.
Smoke is the ordinary by-product of an ignited cigarette and there is a point of difference between inhaling aerosol from heated "HEETS" and inhaling smoke from a lit cigarette.
Section 29 (2) of the Smoke-free Environment Act 1990 said "No person shall import for sale, sell, pack or distribute any tobacco product labelled or otherwise described as suitable for chewing, or for any other oral use (other than smoking)".
The defence's expert cited a passaged from the UK Royal College of Physicians which stated "The main culprit is smoke and, if nicotine could be delivered effectively and acceptably to smokers without smoke, most if not all of the harm of smoking could probably be avoided".
"Given this advice, it can be said that the use of "HEETS" while it may have associated risks in itself, is not as harmful or potentially harmful as ordinary cigarette use, Judge Patrick Butler said.
The defendant said "the outcome the Ministry is seeking with this prosecution is the opposite of what Parliament sought to achieve when passing the SFEA.
"I find that the 'Heets' product is not caught within the ambit of s 29 (2) of the
Act and the charge is dismissed accordingly," Butler said.
Philip Morris New Zealand, the company which made the product, general manager Jason Erickson said he welcomed the courts decision.
"This case does, however, highlight the need for urgent reform of regulations surrounding e-cigarettes and other smokeless tobacco products.
"To achieve the Smokefree 2025 goal, men and women who smoke in New Zealand need freely available information and access to a range of better alternatives to cigarettes, including nicotine-containing electronic cigarettes and smokeless tobacco products such as HEETS," he said.