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
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