However, lessons from past prohibitions, from alcohol to tobacco, suggest that bans tend to exacerbate the problems they seek to solve. History and evidence indicate that regulation is a far more effective and ethical approach.

By adopting a harm reduction framework, Victoria can manage e-cigarettes in a way that prioritises public health, minimises criminal justice impacts, and curtails illicit markets.

The Failures of Criminalisation

Criminalising substances has historically proven ineffective, often leading to unintended negative consequences. 

The prohibition of alcohol in the early 20th century United States led to the rise of powerful criminal organisations thriving in an unregulated black market rife with violence, exploitation and illegal trade. 

More recently, these conditions have been replicated in Australia’s own ‘tobacco wars’, which have seen tobacconists firebombed and high-profile organised criminal network leaders assassinated, all linked to illicit tobacco trade.

Anti-vaping laws in Victoria are following a similar trajectory.

Rather than reducing youth access, criminalisation is pushing vaping into black markets where quality control is non-existent, exposing consumers – the majority of whom are young people – to dangerous, unregulated products. 

Additionally, criminalisation disproportionately affects vulnerable populations. 

Australians are consuming more products with nicotine. Whilst smoking has dramatically decreased over the past two decades, rates have remained high in lower socioeconomic and remote communities, and uptake in e-cigarette use has more than doubled since 2018, with more than half of that demographic represented by under 30s.

Consequently, the punitive approach towards vaping has increased the likelihood of young people entering the criminal justice system, which has a proven criminogenic effect – early contact with law enforcement is associated with ongoing justice system involvement and adverse social outcomes. Additionally, people from lower socioeconomic backgrounds are already overrepresented in the justice system. 

This approach threatens to exacerbate these inequalities, arguably producing harms that far outweigh the risks of vaping itself.

A harm minimisation approach, rather than punitive measures, would ensure that regulation supports rather than punishes vulnerable populations.

Misconceptions Surrounding Youth Vaping

One of the major concerns by the public, which is driving the criminalisation framework, is the impact on young people.

While vaping carries health risks, evidence suggests these risks are significantly lower than those associated with smoking traditional tobacco cigarettes.

In fact, e-cigarettes have emerged as one of the most popular smoking cessation tools in Australia for previous tobacco users. 

The often-cited "gateway effect” suggesting vaping leads to smoking remains highly contested. Studies indicate that the vast majority of vapers are either former smokers or would-be smokers, meaning that vaping functions more as a harm reduction tool than a gateway to tobacco use. 

Mental health considerations also play a role, as some individuals turn to vaping as a coping mechanism. Criminalising their use only adds further stress and potential harm.

The key to managing youth vaping lies in education and prevention.

Public health campaigns, similar to those used to reduce smoking rates, can inform young people about the risks of vaping and mitigate the risks of youth uptake while allowing adult smokers access to a less harmful alternative.

The Faults in the Prescription-Only Model

Initially hailed as a ‘world-leading’ initiative, Australia’s current prescription-only model is effectively a de-facto prohibition in sheep’s clothing. 

The disconnect between policymakers and health authorities means that, in practice, doctors remain hesitant to issue nicotine vape prescriptions and few pharmacies stock vaping products, leaving smokers with no other avenues besides black market engagement.

This is further reflected in the numbers; despite illegality, vape shops and tobacconists still remain the most common sources of e-cigarettes, followed largely by online Australian suppliers. By maintaining strict prescription requirements, Australia inadvertently promotes illicit markets.

Expert evaluations of the prescription-only model have struggled to support the current framework.

A regulatory framework that allows legal, controlled access would eliminate this barrier and align Australia with leading global practices that have successfully regulated vaping without requiring medical prescriptions.

The Case for Regulation: A Health-Focused Approach

A well-regulated consumer model for nicotine vaping products offers a more effective and ethical approach than criminalisation.

A regulated market would curb the exploitation by organised crime that typically flourishes in a black market. When consumers are pushed away from legal channels, they often turn to illicit sources where products are untested and potentially hazardous.

Regulation would introduce age verification, quality standards, clear product safety regulations, and controlled distribution, reducing the risks associated with illicit products. This method not only protects young people but also allows adult smokers – who may be looking to quit traditional cigarettes – to access safer alternatives with proven cessation effectiveness. 

Countries like New Zealand and the United Kingdom have implemented pragmatic regulatory models that mitigate harm without criminalising users. Overly restrictive policies, on the other hand, have proven counterproductive, leading to continued illicit sales and sustained tobacco consumption.

Moreover, the costs of criminalisation place an undue financial burden on the taxpayer funding unnecessary additional law enforcement. Prohibiting nicotine vaping products increases policing costs, diverting resources from more pressing criminal activities and keeping the cycle of organised crime in motion.

Instead, by implementing licensing schemes for retailers, governments can ensure that approved vendors make up the majority of regulated nicotine product sales. In reducing illicit trade, governments can collect tax revenue from legal sales that are otherwise lost on the black market. 

Additionally, by legalising and taxing e-cigarettes, the government could generate additional revenue which can be reinvested into public health initiatives such as education campaigns, cessation services, and further regulatory oversight. Educating young people about the risks of vaping – rather than criminalising them – ensures that public health objectives are met without exacerbating the harms of punitive measures.

Environmental concerns related to vaping, such as waste from disposable devices, can also be addressed through regulation. By promoting reusable products and implementing waste management strategies, Victoria can ensure a sustainable approach to e-cigarette use.

A well-structured tax policy, where e-cigarettes are taxed at a lower rate than traditional cigarettes, would maintain a financial incentive for smokers to switch while preventing excessive youth uptake.

A Proposed Regulatory Framework

A regulated e-cigarette market in Victoria should include:

• A licensed retail model for adults – Retailers must obtain a license to sell nicotine vapes, ensuring accountability and compliance.
• Strict age verification processes – Measures such as ID checks and penalties for non-compliance will prevent youth access.
• Product standards and packaging regulations – Implementing quality control measures ensures that only safe, well-tested products are sold.
• Enforcement and compliance measures – Regular inspections and penalties for illegal sales will help maintain the integrity of the regulated market.
• Public health campaigns and education programs – Instead of criminalisation, resources should be dedicated to informing the public about the risks and benefits of vaping.

Notably, it is crucial that taxation on nicotine vaping products be proportionate to risk, following similar models of nicotine gum and patches. In this model, e-cigarettes are taxed at a lower rate than traditional cigarettes, reflecting their reduced harm profile without making them so cheap that they encourage use by non-smokers.

Striking this balance is critical in not only regulating the market effectively, but also decreasing the profitability of the black market trade, reducing the appeal of illicit channels whilst generating legal tax revenue for the government. 

Regulation is the Way Forward

Instead of reducing access, the current approach fuels black markets, empowers organised crime, and disproportionately impacts young and marginalised communities. By creating a legal, controlled market for e-cigarettes, Victoria could reduce the appeal of illicit channels while focusing on public education to counter misinformation about the relative harms of vaping versus smoking.

A regulatory model aligned with global best practices would provide a pragmatic and health-focused solution that is not only more effective than criminalisation but also more ethical.

The evidence is clear: regulation, not criminalisation, offers a sustainable path forward for a healthier future in Australia.