Ecigs.Our right not to smoke Tobacco
This is the story of HeavenlyVapours
A few years ago I started a company that sold electronic cigarettes. My goal was to start a small business and focus on high quality control, so vapers didn't have to take risks when buying their e-cigarettes / Personal Vapourisers (PV) as to whether they would work, smell funny, leak etc.
The business had been running for almost a year and was doing very well. Warranty rates were declining; we even found a manufacturer in Australia that could make the flavourings that users put in the juice at a very high quality, with a known list of ingredients and persistent quality. We were certainly heading in the right direction, bringing Australian quality control to what is ultimately a product predominately cheaply made (and without oversight) in China.
However, the powers that be did not approve. The "Health" Department and Cancer Council would rather see electronic cigarettes banned outright than have traditional cigarette smokers be free to choose.
We suddenly got raided by the Health Department.
No formal letter, no other contact. A discrete court order for search and seizure was obtained and they arrived at my house in 3 black SUV's. They searched through my house and proceeded to load all of the hardware I had into several black garbage bags.
The search and seizure went on for about an hour and half before they decided they had found and taken enough.
The whole process was pretty invasive and surreal.
They were confusing my humble business with some sort of Columbian drug cartel. The business ran openly, with the website listed on Google's front page, with clear packaging and marketing.
What law was I breaking? It must have been serious enough to warrant a surprise search and seizure by force.
They alleged at the time that I and my small business had breached section 106a of the Tobacco Products Control Act 2006.
See link below for description of 106a
TOBACCO PRODUCTS CONTROL ACT 2006 - SECT 106
Applicable penalty description below
TOBACCO PRODUCTS CONTROL ACT 2006 - SECT 115
Wait, what come again? The law passed to stop milk bars from selling FADS Fun Sticks, once known as FAGS and FADS, which were a brand of candy cigarette to be sold to children. Electronic cigarettes are for adults who want to consume nicotine responsibly without physically burning a roll of tobacco. This is an alternative to smoking for adults, not some toy to get new people addicted to traditional cigarettes.
How could I be breaching this law anyway?
"TOBACCO PRODUCTS CONTROL ACT 2006 - SECT 106
106 . Products resembling tobacco products etc. not to be sold
A person must not sell any food, toy or other product that is not a tobacco product but is "”
(a) designed to resemble a tobacco product or a package; or
(b) in packaging that is designed to resemble a tobacco product or a package.
Penalty: see section 115."
"Or other product". Oh, it's one of those "˜catch-all' pieces of legislation. Surely this discussion should have happened on a legislative level, instead of picking out one small business to take to court to settle this in common law?
Well it's off to court we go I guess.
The saga had been going on for two years before actually going to court. During this time there was incredible uncertainty regarding whether we could continue to trade. In the event it was found we had indeed breached section 106a then continuing to trade could compound the penalty we would face (first offense $10,000 subsequent offences $20,000).
During this time an array of competing companies sprung up selling the exact same products and a range of others through various mediums - websites, retail stalls at markets, shopping centres etc and none of these companies to my knowledge were ever raided or had their products seized. It was hard to understand, here we were a small business trying to do something good for the community. Trying to help people move away from an expensive health destroying habit and the "Health" Department decides to single us out. We had poured all of our savings into the business. At the time of the raid we had just purchased around $5000 of stock paid for - not with profits but our own money. All of this was lost. In the ensuing period of time we had to find another $11,000 to pay for lawyers to represent us and form a defence.
On September 11 2013 almost 2 years later we finally had our day in court. The Learned Magistrate J Hawkins reserved her decision to review and weigh the merits of the presented arguments for the defence and prosecution.
On the 22 October 2013 the written verdict was presented. The summary of which was that HeavenlyVapours was acquitted of the charges.
At this point we breathed a sigh of relief and re-created our website and began to operate again believing the matter to be at a close.
How wrong we were.
The "Health" Department a few weeks later lodged an appeal to the Supreme Court. We again got in touch with our current lawyer and asked that he represent us in the court of appeals. We now had to pay another $9,000 in legal costs for this representation (legal costs around $20,000 at this point).
We appeared in the Supreme Court and we and the prosecution made our various arguments. The Judge J Pritchard adjourned the matter for deliberation.
On the 10 of April 2014 we were summoned to receive the judgement.
Judge Prichard found in favour of the "Health" Department and in her decision expanded her conclusion to determine that in effect any product E-Cig or otherwise that involves a hand to mouth action and results in the expulsion of vapour does in fact resemble a tobacco product and there for falls under section 106a of the Tobacco Products Control Act of 2006.
The prosecution at this time sought that I pay their legal costs, a little over $13,000.
Total legal costs now around $33,000. That figure does not include the penalty amount that has yet to be determined but will likely be another $10,000 based on the Acts prescribed penalty for a first offense.
Total legal cost is now almost $45,000 for something no one has ever been charged or prosecuted for before.
Even the Learned Magistrate J Hawkins did not interpret my business as having breached the Act.
Supreme Court Verdict found here: Verdict
What does this mean?
Well in short it means any model of E-Cig irrespective of its design is now illegal by case law precedent to be sold from within WA. One can only imagine that the other states may now try to follow suit.
If this goes uncontested fewer people will be exposed E-cigs/PVs. This lack of awareness means more people are going to be trapped consuming traditional cigarettes that are known to be deadly and impose a cost on all those around them as they either never get the opportunity to hear about E-cigs/PV's or the obstacle to getting them results in the same outcome - that they remain tobacco users.
I feel I have a moral obligation to fight, it's why I have come this far. When all this started my friends and family all said I couldn't afford to fight this and to just give up. I can't do that, it's not me. If I had given up it would have been the first nail in the industry's coffin. I felt based on all of my customer's feedback that I was doing a good thing, that I was changing lives and making a genuine positive difference to so many people. How could I not fight when I didn't believe I had done anything wrong? When giving up would be letting so many others down.
I didn't give up, I borrowed money and buried myself in debt believing naively that surely common sense and general good will would prevail. I was initially rewarded for my resolve and was acquitted in the Joondalup Magistrates Court. I believed I had done what needed to be done and we could all move on.
Unfortunately I lost on appeal and while my will and conviction to fight on is as strong as ever I simply can't do it alone. This process has financially destroyed me but if we can band together now we can still win this thing.
Maybe I'm crazy to think this can work but honestly it's soul destroying to not even try.
Common sense and dozens of studies demonstrate that Ejuice consumed through E-Cigs/PV's do not contain the many thousands of deadly chemicals traditional tobacco cigarettes do. We deserve the right to choose an alternative.
We need help
1. We need funds to cover our existing and future legal costs. We need to form a formidable defence team to appeal this in a higher court, where a more philosophical argument can be made.
2. We need media exposure
3. We need to promote discussion in the public discourse
4. We must pressure our elected officials to enact legislation to specifically address and allow this new technology
Please everyone join me to help end this madness!
Vincent van Heerden
For Further Information See the W.A. Appeal Section of
This will likely be my last update.
After a long wait I have finally been advised by my lawyers of the costs being sought by the health department.
They are seeking $54,000 in costs which the courts have already approved. I have 21 days to argue the costs but it is not likely to change the outcome.
There was not enough money raised to appeal to the high court so the road will sadly end here.
I have a few thousand left on trust with the lawyers so will have to pay that to them and then see what the prosecution wants to do about the remaining balance.
I pray they will not foreclose on my home but only time will tell as it is entirely within their discretion.
Thank you to everyone for all of the support over such an extended period of time, it really means the world to me.
Though this is a terrible loss please keep advocating for ecigs. All of our actions do make a difference we can’t win every battle, but we must always fight for what is right.
Through this journey more people have undoubtedly become aware of ecigs as a life changing alternative to tobacco and lives will have been saved, sometimes that’s all we can do, and it is worth doing – no matter the cost.
All the best Vince
I apologise for the delay in providing this update. I have been waiting to consult with my lawyers and for reasons outside of my control this only happened late yesterday.
I have been wanting to update about this but after reading through the ruling I was left reeling in confusion. I could not understand the ruling as it appeared to completely ignore the actual appeal, something I assumed I must be mistaken on, something I thought would have to be illegal or impossible.
The appeal was unsuccessful, normally what then happens is you get a written ruling explaining how the judges made their determination. They explain the appellant’s argument and then they explain why in law the argument made by my counsel was erroneous.
This DID NOT happen… I cannot explain how or why this can be the case. It seems to fly completely in the face of the judicial process. The judges found against me, dismissing the written grounds of appeal. They go into some reasons why the products possibly being harm reduction products has no bearing on the application of the prohibition but fail to ever acknowledge the existence of the actual verbal grounds of appeal which were presented for 90 minutes by my Senior Counsel during the actual appeal and were acknowledged at that time by the 3 judges.
When reading through the ruling it appears to me that the determination by the judges was made before the appeal was even heard, that the result was preordained... It seems that the ruling given by the judges gives no bearing on the actual appeal in the court of appeal and that in fact despite the valid argument by my counsel they simply decided to find me guilty irrespective of whether in law I actually was guilty.
This being the case I am absolutely incensed, I am outraged and feel completely disillusioned by the Australian Judicial System. I cannot say - due to concerns over defamation charges that they were corrupt but I am sure you can draw the only logical answer for yourselves…
I personally feel, but am certainly not asserting, that vested interests in the outcome of this case were involved in assuring my conviction irrespective of the law or my innocence or guilt. I am disgusted and sickened by this result. I feel I should apologise to the donors for being so naive to ever believe that we live in a just society, where the law is applied based on the actual law and not the monetary motivations of government taxes and big tobacco and pharmaceutical lobby groups.
So where to from here? Well my lawyers still feel that the case should be appealed to the High Court. The High Court is generally known for its high level of respect for the law and also for looking more philosophically at the issue, i.e. that the Health Department are trying to stretch an unrelated law and make it apply to a product that was not envisioned by the legislators.
Now this may well be successful however the cost for doing this is likely to be extremely high. I have been advised that making a special leave to appeal would cost around $33,000 and that excludes the actual appeal cost which is likely to be another $100k + so while we should have won (based on the law) we have not and in order to seek actual justice an incredible amount of money will need to be found and this would need to happen before the 14th of April.
Should an appeal not be lodged I will now have to pay the prosecutions costs. This figure has not yet been advised but is likely to be very high and will result in me declaring bankruptcy as I have no means to pay this.
I expect to be advised the costs figure within the next 2 weeks.
Again I want thank everyone for the incredible support over the course of this journey I am so sorry that my faith in a fair judicial system appears to have been grossly misplaced.
If the funds to appeal can be raised I will consider going ahead with the appeal, but not before getting advice from a bankruptcy expert as to the implications for myself and my family
The big day has finally arrived. My lawyers contacted me today to advise that the Court of Appeals has made a ruling and will deliver it orally at the Supreme Court this Thursday 10 of March at 9:30 am.
If anyone wishes to be there for the ruling it is an open court and you are of course very welcome.
This has been an incredible and often exceedingly difficult journey but after almost 5 years of battling the end is finally here.
I want to thank all of you for the incredible support, both emotional and financial that has allowed this fight to happen.
This fight has been about taking a stand - for our rights, defending our freedoms of choice and action. Our fundamental right to a less harmful alternative to deadly tobacco.
It is truly a crazy world we live in, where a circumstance like this should ever eventuate and be necessary. What kind of world demands its citizens to raise inordinate amounts of money to defend their basic rights to health and free choice?
Moments like these I hope will be looked back on by historians as a lesson in how greed, corruption and ignorance may be wielded as a weapon against the masses, but no matter how overwhelmed we are, we will stand together and fight back for what is right.
I’m praying for the victory,
Until then we just need to be patient and think happy thoughts, I think we have a very good chance to win though and my lawyers have both said they feel the chance for success is now in our favour :)
Thank you so much to everyone who has donated and made this appeal possible, this has cost an ungodly amount of money but we have managed to put up an amazing fight that might just win us this case.
I will update as soon as there are any new developments.
VAPING SAVED MY LIFE I have been using a personal vaporizer (e-cig) for approx 2 years now. Before that I smoked about 20 a day, I ended up with stage 2 breathing failure, when it was discovered I have COPD emphysema (lung disease).I ended up on oxygen 24 hrs a day, along side a C-Pack machine for several hours on a night. I tried everything to stop smoking, but nothing cured the cravings and sooner or later, I would always return to smoking. Which meant I was deteriorating very quickly. Then I discovered vaping not only have I successfully stopped smoking, it was just in time as a year later I was able to stop the C-Pack and oxygen treatment. And I have not smoked a cigarette since!
Good luck Vince, you have thousands of vapers all over the world sending their best wishes that you will win this battle. You are a inspiration and a hero to me personally, for your strength and determination to fight for our right to not smoke tobacco. It truly is a bizarre world when a citizen can be persecuted in this manner by the government that is supposed to serve, and protect the people. I wish I could be in the court, but unfortunately that isn't possible, but my thoughts will be with you. Thank you for everything you have done, win or lose, you have my respect and admiration, and that of millions of vapers world wide.
I managed to quit cigarettes 3 years ago. Soon after that I saw Vince's campaign and donated. I reasoned that if I fell off the wagon, I wanted an alternative to cigarettes. Yes, I can import e-cigs but of unknown quality and the delay of shipping to WA meant risking buying cigarettes to see me through. I am sorry for all you have been through Vince. It looks like the mongrels in this nanny state have won.
What is the problem ??? Each Australian State and Territory classes Electronic Cigarettes and Nicotine differently. We encourage you to stay informed and up to date with how these laws affect you as a Vaper. Please understand how vaping is legislated in your Australian State below. Western Australia: – Electronic Cigarettes are classed as a device used to mimic smoking. (Tobacco Products Control Act 2006) – The Sale and Supply of electronic cigarettes is illegal. – The Sale and Supply of Nicotine is illegal. – Importing Nicotine for personal use is legal. – Purchasing Electronic Cigarettes from another Australian State is legal. – The use of electronic cigarettes with or without nicotine is legal. New South Wales: – Electronic Cigarettes are un-classed. – The Sale and Supply of electronic cigarettes is legal. – The Sale and Supply of Nicotine is illegal. – Importing Nicotine for personal use and possession is illegal. (clause 20 of the Poisons and Therapeutic Goods Regulation 2008) – The use of electronic cigarettes with or without nicotine is legal.
Super funny. I would look at Vicks vapourisers because they would also fall into the same catagory, so would asthma inhalers (mind you they are not heated). The Vicks ones are. They also have a different shape but produse vapour tha same way using "juice" that contains menthol and its okay to have that in a child's bedroom. If we want to get really silly, we should all be in trouble for running a hot bath and using esential oils in it. LOL Good luck with our case, I will follow
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Now I remember why I lived overseas for so many years. Good old Australian government banning everything it can't make a buck out of. Keep up the fight. I will contribute as often as I can.
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From a Kiwi, bloody good fight, would love to hear how things are going for you. I stopped a 45 year long smoking habit in one day, bought a vape. Always knew, it was about choice. You're a champ Vince!
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Just watched a billion lives in bundaberg qld just shook my head proud of you vince and aaron brilliant !!
Is it too late to appeal and fight this through ? Can some bright spark here email all contributors and see if we can afford this through if it is not too late?