An analysis of key stakeholder policy perspectives in the proposed e-cigarette regulations in New Zealand
Abstract
Issue addressed
The use of e-cigarettes is increasing; New Zealand (NZ) has witnessed a rapid rise in consumption. Policymakers face a challenge to balance the impacts of regulation on those who use e-cigarettes as a smoking cessation tool while protecting people who do not smoke from the harms of e-cigarette use, particularly young people. Previous research has demonstrated varying perspectives on e-cigarette regulation according to different stakeholders and interest groups. This study examined key stakeholders' positions on the drafted legislation to regulate e-cigarettes in NZ.
Methods
Using written submissions made during public consultation in 2020, we conducted a content analysis to determine levels of support for e-cigarette regulations. Submissions made by the e-cigarette industry and the health sector were included for analysis.
Results
The tobacco industry is heavily invested in ensuring that e-cigarettes continue to be promoted and available in NZ with minimal restrictions. On the contrary, health organisations supported the introduction of regulations to reduce marketing to, and use of e-cigarettes by youth and people who do not smoke.
Conclusions
The industry opposes restrictions using similar approaches employed against tobacco control measures. Despite perceptions of division, the health sector is generally unified in support of e-cigarette restrictions.
So what?
Policymakers must protect public health policies from commercial interests and be cautious of opposition framed as public health concerns.
1 INTRODUCTION
As e-cigarettes have become increasingly popular, policymakers are tasked with developing appropriate public health regulations.1 Uncertainty about how best to regulate e-cigarettes is reflected in the wide range of regulatory approaches adopted globally.2 Policymakers must consider the possible impacts of regulation on people who use e-cigarettes as a smoking cessation tool whilst protecting people who do not smoke from e-cigarette harm. There is a particular concern regarding the high rate of e-cigarette use among young people, which may be due to extensive marketing and the widespread availability of e-cigarettes.
Similar to trends in the USA, Canada and Australia, e-cigarette use among New Zealand (NZ) youth has increased rapidly since 2015.3-5 In a 2021 survey of NZ high school students, 20% reported daily e-cigarette use, with the majority using high nicotine concentration products.6 A NZ youth survey in 2019 reported 37.9% of youth ever using e-cigarettes, and more than 80% of those reported they had never smoked at first use.7 Analysis of e-cigarette marketing shows aggressive targeting of youth through social media, including by high-profile user accounts (influencers) and sponsorship of youth-oriented events.8, 9 This evidence contrasts the claims made by the industry that its goals are, for example, “to replace every cigarette for all adult smokers who would otherwise continue to smoke”.10
Smoking is a leading cause of mortality and is estimated to contribute to up to two-thirds of deaths in current smokers.11 Some public health organisations support the use of e-cigarettes for smoking cessation and argue that e-cigarettes are a relatively safe alternative to smoking12, 13 when people transition entirely away from smoked tobacco.14 However, the World Health Organization states that the efficacy of e-cigarettes for smoking cessation remains inconclusive15 and multiple health impacts from e-cigarette use have been identified.16 These differing perspectives are revealed in the broad range of e-cigarette policies implemented across jurisdictions. For example, nicotine-containing e-cigarettes and liquids are legally available by prescription-only in Australia,17 unlike in the United Kingdom, where e-cigarettes are widely accessible consumer products.18
The tobacco industry (a major stakeholder in the e-cigarette industry) consistently opposes effective public health measures intended to restrict the availability, visibility or appeal of their brands which may lead to reduced profits.19 This opposition includes the use of litigation, evident in NZ,20 and internationally.21 With the introduction of e-cigarettes, the tobacco industry has incorporated harm-reduction themes into promotional messaging positing their brands as part of the solution to reducing smoking-related illness. For example, tobacco company Imperial Brands, states, “We want to reduce the health impact of smoking tobacco by encouraging smokers to transition to products with lower health risks”.22 The harm-reduction narrative enables the industry to access and build relationships with policymakers, scientists, and public health advocates who may view e-cigarettes as a potential harm-reduction tool. However, many health organisations are wary of industry involvement in policy decisions15 and have concerns about youth and e-cigarette uptake by those who do not smoke.7 Similar to indigenous populations elsewhere, New Zealand Māori face a disproportionate burden of tobacco-induced health impacts.23 The role of harm-reduction, as promoted by the industry, which profits from ongoing nicotine dependence, may be at odds with community goals for self-determination and well-being.24
In 2020, the NZ government sought to revise the existing tobacco control legislation to include a range of restrictions on e-cigarettes. As part of the legislative process, organisations and members of the public were invited to make submissions on the drafted Bill, the Smokefree Environments and Regulated Products Bill25 [hereafter “the Bill”]. The Bill's key policies included restrictions on advertising, purchase age, flavourings, specialist retailer registration, and permitted areas for e-cigarette use. Following the introduction of the proposed regulations, the Health Select Committee invited written and/or oral submissions in the period from February to April 2020. Given the tensions present in developing a policy framework for e-cigarettes, we were interested in understanding the policy perspectives presented by key stakeholders. In analysing written submissions this study aims to identify submissions from key stakeholders (industry and health organisations), ascertain the level of support for key aspects of the proposed regulations, and analyse stated positions for any differences between and within these two key stakeholder types. We approached this study from a public health policy perspective in support of the full implementation of the WHO Framework Convention on Tobacco Control (FCTC), particularly Article 5.3, which outlines that parties should protect tobacco control policies from commercial and vested interests.26
2 MATERIALS AND METHODS
2.1 Sample identification
We conducted a content analysis to systematically categorise the perspectives of each organisation within the sample in relation to key aspects of proposed regulations on e-cigarettes. We reviewed the written submission documents, which are publicly available on the NZ parliament website and sought to identify key stakeholders in this debate by including both industry and health organisations. “Industry” was defined as submissions lodged by dedicated e-cigarette retailers and manufacturers and included the tobacco industry26 and organisations either directly or indirectly funded by tobacco companies.27 “Health organisations” were defined as health-focused non-government organisations, associations, research groups affiliated with tertiary education providers, and health service delivery providers. The complete sample is provided in Table S2. Submissions made by organisations that did not meet key stakeholder definitions, those made by individuals, supplementary files and duplicate submissions were excluded. Submissions were then extracted to document management software Zotero 5.0.94.4.
2.2 Content analysis: Classifying policy perspectives
Our study focused on five main aspects of the proposed bill which related to the marketing, availability and use of e-cigarette products: (i) advertising, (ii) purchase age, (iii) flavour restrictions, (iv) specialist e-cigarette retailer registration and (v) areas where e-cigarette use is prohibited (hereafter vapefree areas). A summary of each proposed policy is outlined in Table 1. We excluded technical aspects of the Bill, such as safety and ingredient requirements, notification procedures and fees.
| Policy | Summary of proposed policies25 |
|---|---|
| Advertising | Advertising and sponsorship of e-cigarette products is prohibited. Public health campaigns approved by the Director-General of Health are exempt. |
| Purchase age | Restrict the sale of e-cigarette products to consumers over 18 y. |
| Flavour restrictions | General retailers (convenience store, gas stations, and supermarkets) are only permitted to sell a limited range of three e-liquid flavours (tobacco, menthol and mint). |
| Specialist retailer outlets | The sale of the full range of e-cigarette flavours (eg, fruit, dessert) is restricted to registered “specialist” retailers who are permitted to demonstrate products and provide advice and recommendations in store. Specialist retailers are required to show >85% of total sales are from e-cigarette products, must hold a fixed permanent structure and report sales information annually. |
| Vapefree areas | The use of e-cigarettes in areas currently legislated as “smoke free” is prohibited including; indoor workplaces, early childhood centres and schools. |
Consistent with a content analysis method a predefined criteria for analysis were established. The lead author (LH) first read each submission in the sample to determine the submitters' support for each of the five proposed policy aspects. Based on the review of each of the submission, the dominant position of the submission on each of the five key aspects was classified as either “support” or “oppose”. Where organisations endorsed restrictions in their submission, their position was coded as “support”. Where organisations stated opposition to restrictions, the statements were coded as “oppose”. Any caveats, exemptions, or extensions to the proposed policies made in the submission, for example, specific recommendations for strengthened or relaxed policy were also included in the data extraction to Microsoft Excel 16.54 and are listed in Table S1. Co-authors coded a random subsample of submissions (10.0%) and high agreement (>95.0%) was achieved. Any differences were discussed and resolved, and the first author completed the remainder of the coding and data extraction.
3 RESULTS
We reviewed the 1553 submission documents, and excluded duplicates (n = 28), supplementary files (n = 58) and those lodged by individuals (n = 1371). Next, the remaining 96 submissions made by organisations were categorised into the two key groups of interest; industry, and health organisations. We identified 36 health organisations and 21 industry organisations for inclusion in the sample. The remaining organisations which did not meet our inclusion criteria were excluded (trade associations, pharmaceutical companies and community groups, n = 39). The final sample of 57 submissions were included in the content analysis to determine the support for key regulations proposed in the Bill.
The results of the support for, and opposition to, the proposed policies are presented in Table 2. Industry was more likely than health organisations to oppose restrictions to e-cigarette policy. Of the 36 health organisation submissions, only nine opposed any one of the five key proposed regulations. Opposition was concentrated in just four health organisations that opposed three or more of the regulations.
| Policy area | Support proposed regulations | Oppose proposed regulations | No stated position on regulations | |||
|---|---|---|---|---|---|---|
| Health (n = 36) | Industry (n = 21) | Health (n = 36) | Industry (n = 21) | Health (n = 36) | Industry (n = 21) | |
| Advertising | 77.8% n = 28 | 0.0% n = 0 | 11.1% n = 4 | 76.2% n = 16 | 11.1% n = 4 | 23.8% n = 5 |
| Purchase age | 69.4% n = 25 | 61.9% n = 13 | 22.2% n = 8 | 9.5% n = 2 | 8.3% n = 3 | 28.6% n = 6 |
| Flavour restrictions | 75.0% n = 27 | 9.5% n = 2 | 16.7% n = 6 | 61.9% n = 13 | 8.3% n = 3 | 33.3% n = 6 |
| Specialist retailer registration | 61.1% n = 22 | 19.1% n = 4 | 0.0% n = 0 | 57.1% n = 12 | 38.9% n = 14 | 23.8% n = 5 |
| Vapefree areas | 69.4% n = 25 | 4.8% n = 1 | 11.1% n = 4 | 23.8% n = 5 | 19.4% n = 7 | 71.4% n = 15 |
3.1 Advertising and marketing
“We strongly support prohibiting advertising and sponsorship of all vaping products including online marketing. Currently the tobacco and vaping industries are aggressively marketing their products to young people. In addition to advertisements on tv, radio and billboards young people say they are being bombarded with vaping marketing on social media”—Public Health Association of New Zealand, Professional Association.
“an unintended consequence of restricting advertising and promotion may be that for those who have or are deciding to transition from combustible cigarettes, it may be more difficult to identify which vaping product suits their transition journey New Zealand smokers may find it genuinely daunting to identify which vaping products are right for them”—JUUL Labs, E-cigarette company co-owned by a Tobacco Company.
“Advertising bans on much-safer products would protect the cigarette trade from competition while denying people who smoke a source of motivation to switch”—ASH, Non-Government Organisation.
3.2 Purchase age
“the Unit recommends restricting access to regulated products for future generations by increasing the minimum purchase age annually”—Nga Tai Ora, Public Health Unit.
“ESNZ considers it important for young people who smoke to also have access to vaping products as a transition to quitting”—END Smoking New Zealand, Health Advocacy Group.
3.3 Restriction on flavours
“As previously stated, the Cancer Society strongly opposes the sale of any vaping products from generic retailers as this will continue to provide easy access to minors. Restricting the flavours able to be sold by generic retailers to tobacco, mint and menthol at this stage is likely to have a fairly minimal impact on youth uptake, as there is evidence that children and young people like mint and menthol as well as fruit flavours”—The Cancer Society, Non-Government Organisation.
“That proposed restrictions on flavours in non-specialist vape stores to mint, menthol and tobacco is inconsistent with the goal of supporting adults to quit smoking, and evidence on why young people try vaping”—New Zealand Heart Foundation, Non-Government Organisation.
“Unintended consequences of continued or greater smoking incidence, and risks a burgeoning black market or at-home DIY mixing of liquids, both of which pose serious health and youth access concerns”—British American Tobacco, Tobacco Company.
3.4 Registration of specialist e-cigarette retailers
“We support licensing rather than registration of all retailers. There is no evidence that vaping retailers have behaved responsibly in the sales and marketing of these products to young people and non-smokers in recent years. A strong signal is needed from Government that the status quo is no longer acceptable”—The Cancer Society, Non-Government Organisation.
“[General retailer] advice can be crucial, and they can also encourage trial of vaping products, sharing experiences, and providing advice. They also have a geographic footprint and an established presence in the community, important factors that a new business in a specialised channel cannot achieve in the less than a five-year period to 2025”—Japan Tobacco International, Tobacco Company.
3.5 Vapefree areas
“Should also include areas within 10 metres of any entrance or opening to buildings use by the public or as workplaces in order to; protect the community from exposure to second-hand smoke and vapour, prevent the normalisation of smoking and vaping, and support people who are trying to quit smoking”—Nga Tai Ora, Public Health Unit.
“One way to make vaping devices a more attractive option than cigarettes, could be to allow vaping in places where smoking is prohibited, including bars”—New Zealand Drug Foundation, Non-Government Organisation.
“It is unjustified to apply smoke-free environment legislation to vaping products, since they are not tobacco products, do not contain tobacco, do not generate side-stream emissions and pose no known risk to bystanders based on current science”—Imperial Brands, Tobacco Company.
4 DISCUSSION
The industry largely opposed all protective e-cigarette regulations. Our study reveals that industry actors in NZ regularly justify their positions under the semblance of public health interest. This is consistent with other international regulatory debates.28 In its submission, e-cigarette brand JUUL expressed concern that restricted advertising may hinder smoking cessation efforts as people who smoke may not be able to identify suitable alternative products. Yet, JUUL, owned in part, by Altria, manufacturer of the established cigarette brand, Marlboro has aggressively marketed their e-cigarettes to young people.29, 30 The majority of Altria's revenue (87%) is generated through smoked tobacco31 and the company regularly engages in challenging public health restrictions to protect these profits.32 In a similar way, other tobacco companies in this study looked to deflect their role in smoking related death and disease by instead emphasising supposed unintended consequences of regulation. For example, British American Tobacco's submission stated concern about risks to health if regulation caused consumers to mix e-liquids unsafely whilst actively and knowingly marketing combustible cigarettes, the “single most deadly consumer product in history”.33 Furthermore, the industry largely ignored any associated health harms from e-cigarette use, such as nicotine addiction, injuries, poisoning and respiratory problems, with many long-term effects still unknown.16
Similarly, Japan Tobacco International depicted convenience stores as important allies in tobacco harm-reduction, stating that the proposed advertising restrictions would prevent unregistered retailers from promoting e-cigarettes, and would hinder smoking quit attempts. However, a NZ study showed that these vendors generally have poor knowledge of e-cigarettes, and rarely viewed them as smoking cessation products.34 Industry documents reveal that e-cigarettes are an important market for new and additional nicotine users, rather than simply a transition of consumers from combustible tobacco.32, 35 Under intensified advertising restrictions, the industry has emphasised the importance of retail point-of-sale settings. Where boundaries between “information” and “promotion” are blurred, verbal communications between retailers and consumers provide a mechanism to encourage brand loyalty and promote products. General or “generic” retailers in NZ make up over 70% of tobacco outlets nationally36 and serve as an important avenue in securing and maintaining this market of new nicotine users.
In another example, Imperial Brands tobacco submission opposes “vapefree areas” claiming “no known risk to bystanders” yet the industry made similar claims of second-hand smoke 1980s, which internal documents later revealed were deliberate falsifications.37 Ultimately, the examples in this study shows the industry continues to draw on known tobacco industry strategies such as highlighting claimed unintended health and economic impacts, a lack of evidence of harm, and vague threats of increased illicit trade38 to try increase its legitimacy and weaken restrictions. While the industry presents a public-facing harm-reduction narrative, legal obligations to shareholders and investor documents confirm that the industry's primary goal remains unchanged; to increase and protect profits,32, 39 an inherent conflict with public health objectives.23, 24, 40
Some policy discourse has focused on the existence of differing views, framed as a heated debate, within the public health sector.41, 42 While there may be a perception of division43 our study found that health organisations were generally unified in their policy positions, supportive of restrictions, and frequently recommended strengthening regulations. The small number of organisations that expressed strong opposition appear to be out of sync with the wider public health sector. This finding is consistent with a similar study conducted in Scotland where health-focused actors also demonstrated high levels of agreement on e-cigarette regulation.43 The tobacco industry has a documented history of highlighting differences of opinion within the scientific community to propagate uncertainty, and weaken tobacco control efforts.44 The industry has more recently expanded this strategy to “amplify voices of harm-reduction supporters”.45 NZ health organisations and policy makers must ensure any such differences are not exploited by the tobacco industry.
Engagement in tobacco control policy has previously been inaccessible to the tobacco industry through the WHO FCTC Article 5.3, which stipulates that parties must protect public policy from the tobacco industry.26 Research indicates that the implementation and enforcement of Article 5.3 varies widely between signatories.46 Public consultation through submissions to parliament is an important tool in collecting perspectives from an array of stakeholders and our study highlights this variation. Our study also underscores that whilst e-cigarette regulation is a relatively new public health concern, the industry continues to employ strategies from its own playbook to lobby for weaker restrictions. With the tobacco industry increasing its market share of e-cigarettes, policymakers need to protect public health policies from industry interests.26 In 2023, the governments of both Australia and NZ are engaging in public consultations on revised e-cigarette regulations47, 48 as part of national tobacco control strategies.49, 50 This study may assist policymakers in identifying industry strategies and insights into any perceived public health “division” on e-cigarette regulations.
4.1 Limitations
Our study has some limitations: not all stakeholders were included in the sample, and the perspectives of individuals, trade associations and pharmaceutical companies may have provided a more complete stakeholder representation. The consultation on this Bill was relatively short during the first COVID-19 lockdown, and organisations that may have ordinarily contributed may not have presented a submission. We have grouped the industry as tobacco and e-cigarette companies, and, these groups may differ in perspectives, and our analysis may not have captured these differences. We aimed to include the most frequently debated policies related to marketing, availability and use of e-cigarette products in this study. However, future analysis of other policies, such as product notification, and annual reporting, may reveal further insights. Considering the potential impacts of different regulatory options on indigenous health, future research should consult Māori on the design and interpretation of studies following Kaupapa Māori in line with the concerns outlined in the WHO FCTC.
5 CONCLUSIONS
This research demonstrates that the industry continues to draw on a consistent set of strategies to oppose restrictions that may impact profits. These strategies support their efforts to position highly addictive products as a solution to smoking-related illness whilst minimising the potential risks posed to young people and those who do not smoke. This study demonstrates that the health sector is generally unified in supporting comprehensive restrictions on e-cigarettes despite anecdotal evidence suggesting division and debate on how best to regulate e-cigarettes. In accordance with Article 5.3 of the FCTC, policymakers must protect public health policies from commercial interests.
ACKNOWLEDGEMENT
Open access publishing facilitated by The University of Auckland, as part of the Wiley - The University of Auckland agreement via the Council of Australian University Librarians.
CONFLICT OF INTEREST
The authors declare no conflict of interest.
Open Research
DATA AVAILABILITY STATEMENT
The data that support this study are available in the article and accompanying online supplementary material.
