The TGA is warning consumers to be aware of counterfeit nicotine vaping products advertised and sold online.
Fake products, known as counterfeits, imitate genuine products but may contain undeclared and hazardous active ingredients. If a product contains nicotine but is not declared to contain nicotine on the product or packaging it is a counterfeit product.
New laws were introduced on 1 October 2021 on how nicotine vaping products may be imported, supplied and advertised in Australia. These laws were introduced to prevent adolescents and young adults from taking up nicotine vaping (and potentially smoking) while enabling current smokers to access these products for smoking cessation with appropriate medical advice.
Individuals and businesses are prohibited by law to advertise a product that refers to, or contains, nicotine unless they have a legal permission to do so. Since 1 October, the TGA has observed a worrying trend of people trying to evade regulatory detection by digitally removing the word ‘nicotine’ from nicotine vaping products. In doing so, they are supplying and advertising counterfeit therapeutic goods which is illegal and poses a serious threat to consumer health.
Note: Pharmacies and pharmacy marketing groups have legal permission to advertise nicotine vaping products in certain circumstances.
Warning to advertisers
If you remove the word ‘nicotine’ from an advertisement for a nicotine vaping product, you are likely supplying a counterfeit therapeutic good which is a criminal offence under section 42E of the Therapeutic Goods Act 1989 and punishable by up to 7 years imprisonment. We strongly recommend that you consider the full extent of that provision before taking steps to change the labelling, presentation or advertising of nicotine vaping products that you are advertising online.
We also warn you against creating new websites or changing platforms in an attempt to circumvent your legal obligations. Deceptive conduct designed to undermine the therapeutic goods regulatory framework presents an unacceptable public health risk and compliance action will be taken by the TGA.
Note: Pharmacies and pharmacy marketing groups supplying nicotine vaping products on prescription have legal permission to advertise nicotine vaping products in certain circumstances. Please read the TGA’s guidance to pharmacies on lawfully advertising nicotine vaping products to consumers.
Warning to importers and suppliers
It is illegal to import or sell counterfeit products. Criminal and civil penalties can be imposed for such conduct. Also, if you have imported counterfeit nicotine products, you will not be given the opportunity to provide a written authority to support release under the Personal Importation Scheme and your products will be seized and destroyed at the border. This includes products that have been over-labelled with “0% Nicotine” wrappers.