Australia has recently rolled out some of the world's toughest laws aimed at curbing the youth vaping epidemic. But new research demonstrates these crucial public health measures could be vulnerable unless policymakers prepare to defend them on the world stage.
A new paper co-authored by University of Technology Sydney (UTS) legal expert Associate Professor Genevieve Wilkinson and Monash University's Dr Elizabeth Sheargold warns that without a clear, globally minded strategy, Australia's efforts to protect public health could be challenged and undermined internationally.
The researchers say that while domestic laws are essential, they are only the first line of defence. The ultimate solution requires Australia to leverage its experience and lead the world in developing robust, international standards for e-cigarette regulation.
"While Australia's new laws in restricting sales to pharmacies and limiting flavours and nicotine content are a critical response to a growing health crisis, they don't exist in a vacuum," said Associate Professor Wilkinson.
"The global e-cigarette industry is increasingly litigious. It has strong links to the highly litigious tobacco industry, which has a history of using international trade rules to challenge regulations they see as a threat to their market. We need to design our policies with this in mind from day one."
The health risks associated with vaping are becoming increasingly clear. With alarming rates of use among young people who have never smoked, health authorities are grappling with a new generation facing potential lung damage, nicotine addiction, and other serious health issues.
Australia's response, which fully entered into force last month, aims to dismantle the product's appeal to young people. However, as the new paper published in the journal Tobacco Control explains, these restrictions could be the subject of a complaint to the World Trade Organization (WTO).
"Regulations like these can be challenged at the WTO," said Dr Sheargold, an expert in international trade law. "Other countries that produce e-cigarettes can argue that our regulations are an unfair 'technical barrier to trade,' designed to protect a domestic market rather than public health."
If a WTO challenge were successful, Australia could be directed to dismantle its own laws or face retaliatory trade measures.
"From a trade law perspective, justifying these measures will rely heavily on clear evidence to support the public health outcomes that regulation is expected to achieve," Dr Sheargold said.
"The defence rests largely on proving that the measures are needed and based on clear, scientific evidence of a health risk."
The e-cigarette industry has already shown its willingness to litigate to challenge public health measures. According to the researchers, the best way to win such a challenge is to build a strong public health case.
"It is not enough to simply state that vaping is a health hazard," said Dr Sheargold.
"Policymakers must carefully document the evidence-based rationale for industry regulation, for example why specific flavours are banned or why sales are restricted to pharmacies.
"This transparent justification is the best defence against a trade law challenge."
Because parts of the new legal framework have only just come into effect, ongoing justification is also particularly critical.
"When trade law rules are applied to regulations that address societal interests like public health, it is important that countries explain why they think a measure will protect those interests and continue to monitor its effectiveness," said Dr Sheargold, noting that a formal review of the laws is not due until July 2027.
This approach is consistent with the powerful precedent of Australia's world-leading fight for tobacco plain packaging.
"We learned from the tobacco disputes that a robust, evidence-based defence is critical," said Associate Professor Wilkinson.
"The new vape laws must be prepared to do the same. Laws are more likely to be effective if governments can demonstrate meaningful consultation with key stakeholders, including children and teenagers, and ongoing monitoring of implementation."
By anticipating these challenges and preparing a robust justification, the researchers say Australia can not only protect its landmark legislation but also set a global standard.
"If these new regulations prove successful in reducing the health harms of vaping, Australia has a responsibility to share that success and seek unified action at a global level," said Associate Professor Wilkinson.
"By demonstrating how to create legally resilient health policy, we can empower other nations to take the bold action needed to protect their own communities."
Research paper: Trade law and effective electronic cigarette regulation design
