133 Molesworth Street
PO Box 5013
Wellington 6140
New Zealand
T+64 4 496 2000

10 November 2023

Morris Lazootin

By email:  [FYI request #24188 email]
Ref:
H2023031848

Tēnā koe Morris

Response to your request for official information

Thank you for your request under the Official Information Act 1982 (the Act) to Manatū
Hauora (the Ministry of Health) on 21 September 2023 for information regarding the flavour
names listed in Schedule 4A of the Smokefree Environments and Regulated Products
Amendment Regulations 2023 (the Regulations). You requested:

“1. Details on the rationale behind the creation of this list.
2. Criteria or factors that determined the inclusion or exclusion of specific flavours.
3. Information about the individual(s) or entity/entities responsible for finalising this list.

I would appreciate any relevant communications, discussions, and documents that
could provide insight into these queries.”

In response to questions 1 and 2, Manatū Hauora intends to proactively release key
documents relating to the Regulations on the Manatū Hauora website. This will include
Cabinet material, briefings, copies of submissions and other decision documents:
www.health.govt.nz/about-ministry/information-releases. As the requested information will
soon be publicly available, your request is therefore refused under section 18(d) of the Act.
However, please see the email correspondence attached which is relevant to question one
and two and is not going to be a part of the proactive release.

Please note, the overarching rationale for specifying generic flavour names in the regulations
is to limit the flavour descriptions, so flavour names that are appealing to young people
cannot be used. This includes names of candy brands, cocktails, soft drinks, energy drinks,
and words that are not flavours such as rainbow or burst. Manatū Hauora is not regulating
vape flavours or flavour ingredients, rather these are a labelling requirement.

In response to question 3, Manatū Hauora staff, including the policy and regulation team,
undertook the analysis and collation of the initial list, and continued to refine and review
against specified criteria before the final list was approved by the Director-General of Health.

Please note that legal advice and documents which come under the scope of all three
questions are withheld under section 9(2)(h) of the Act, to maintain legal professional
privilege.

As you may be aware, on 1 October 2023 retailers of notifiable products must have notified
the Director General that they sell notified products at retail. From 21 October 2023, New
Zealand Manufacturers and importers of notifiable products must notify vaping products that
use permitted flavour descriptions. As per the Smokefree Environments and Regulated
Products Amendment Regulations 2023, section 10: A variant name on a vaping product
must describe the actual flavour of the vaping product using only 1 or 2 flavour names listed
in Schedule 4A. The limit on vaping flavours applies to all new vaping product notifications
on and from 21 October 2023. Vaping products that do not comply with those limits must not
be sold on and from 21 March 2024.

Retailers, manufacturers and importers must also only notify vaping products that meet
product safety requirements including nicotine limits, removeable batteries, child safety
mechanisms, and labelling requirements.

For more information on vaping regulation and dates of its implementation, please use the
following link: www.health.govt.nz/system/files/documents/pages/hp8804-vaping-regs-
timeline.pdf.

I trust this information fulfils your request. If you wish to discuss any aspect of your request
with us, including this decision, please feel free to contact the OIA Services Team on:
[email address].

Under section 28(3) of the Act, you have the right to ask the Ombudsman to review any
decisions made under this request. The Ombudsman may be contacted by email at:
[email address] or by calling 0800 802 602.

Please note that this response, with your personal details removed, may be published on the
Manatū Hauora website at: www.health.govt.nz/about-ministry/information-
releases/responses-official-information-act-requests.

Nāku noa, nā

Jane Chambers
Group Manager, Public Health Policy and Regulation
Public Health Agency | Te Pou Hauora Tūmatanui

Page 2 of 3

Appendix 1: List of documents for release

#
Date
Document details
Decision on release
Email correspondence: Draft
1
27 June 2023
Flavour Wheel
Released with some
Email attachment: SERPA Flavo
i
ur  nformation withheld under
1A
N/A
Wheel
section 9(2)(a) of the Act, to
Email correspondence: Flavour
protect personal privacy
2
22 October 2023
Wheel
Email attachment: The role of
Publicly available:
2A
N/A
flavors in attractiveness of
https://edepot.wur.nl/537112
electronic cigarettes
Email correspondence: Ice
3
24 August 2023
memo/unintended consequence
and managing queries
Email attachment: Memo – Policy
decision taken to exclude
3A
29 August 2023
synthetic cooling agents from
approved flavours for vaping
Released with some
products
information withheld under
Email attachment: Audit trail to
section 9(2)(a) of the Act, to
Memo – Policy decision taken to  protect personal privacy
3B
N/A
exclude synthetic cooling agents
from approved flavours for vaping
products

Email correspondence: Vaping
4
27 February 2023
submission
Email attachment: Whitehall-
smokefree-environments-
4A
N/A
regulations-submission-
form_feb_2023.pdf

Page 3 of 3

Document 1
From: s 9(2)(a)
Sent: Tuesday, 27 June 2023 11:00 am
To: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>; s 9(2)
@health.govt.nz>
(a)
Cc: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
Subject: RE: Draft Flavour Wheel - some feedback
That means I’m not sure how we deal with it. I think it’s a difficult thing we need to make a decision
about. It may not fit well in the wheel, but I don’t think we can ignore it. Manufacturers will want or
likely find someway to refer to it. It might be better to have it as one of the two flavour descriptors.
From: s 9(2)(a)
@health.govt.nz>
Sent: Tuesday, 27 June 2023 10:58 am
To: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
1982
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>; s 9(2)
@health.govt.nz>
(a)
Cc: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
ACT
Subject: RE: Draft Flavour Wheel - some feedback
Hi s 9(2)(a)
Does that mean you support it not being included?
Thanks,
s 9(2)(a)
From: s 9(2)(a)
@health.govt.nz>
Sent: Tuesday, 27 June 2023 9:06 am
To: s 9(2)(a)
@health.govt.nz>;s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>;s 9(2)
INFORMATION
@health.govt.nz>
(a)
Cc: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
RELEASED UNDER THE
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
Subject: RE: Draft Flavour Wheel - some feedback
Just adding to the discussion on ice – this is not usually a mint/menthol flavour – just a cooling
effect. It is extremely popular with youth. It acts in a similar way to menthol tobacco to mask
somewhat the harshness of the nicotine. It might not be considered a flavour, but more of an effect.
OFFICIAL
From: s 9(2)(a)
@health.govt.nz>
Sent: Tuesday, 27 June 2023 8:14 am
To: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
Cc:s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
Subject: RE: Draft Flavour Wheel - some feedback

Document 1

Thanks s 9(2)


(a)
1.  We specifically took out drinks other than coffee and tea, but if you think cola is needed
then we could add it back in by changing the category to Drinks – my concern with that is
that we could get a lot of requests to add in other drinks as well. We wouldn’t necessarily
add them in but we’d need to respond to a lot more requests. I’ve added passionfruit, oat
(renaming Nuts to Nuts & Grains) and sweet.
2.  We excluded ice as it isn’t a flavour. If they have to ensure the name accurately describes
the flavour then we shouldn’t allow things that don’t have a flavour. They can presumably
use a mint flavour instead of ice.
3.  Yes – definitely. I think we’ve decided that they can choose one flavour name or a
combination of two flavour names for each variant.
4.  I think we should allow people to request additional flavours but not additional categories –
so if the flavour they want doesn’t fit within the listed categories then we won’t consider it.

1982
I’ve attached a link to the updated version of the flavour wheel in case anyone has any further
feedback.

Cheers,
ACT

s 9(2)(a)

From: s 9(2)(a)
@health.govt.nz>
Sent: Monday, 26 June 2023 9:00 pm
To: s 9(2)(a)
health.govt.nz>; s 9(2)(a)

@health.govt.nz>; s 9(2)(a)
@health.govt.nz>; s 9(2)(a)

@health.govt.nz>
Cc: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)

@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
Subject: RE: Draft Flavour Wheel - some feedback

Hi s 9(2)(a)

INFORMATION
I have taken a look at the flavour wheel document.  I think it looks pretty good really, but I have a
couple of questions/comments:
RELEASED UNDER THE

1.  I have done a quite unscientific survey of websites…. I think that the wheel has most things
that we would want. A couple of things to consider adding – Cola, passionfruit, some sort of
cereal/granola/oat flavour name, generic ‘sweet.’

2.  Also ‘Ice’ –We haven’t got it as a descriptor, and it is a very popular descriptor.  However, I
understand that ‘ice’ can be added in a way that is essentially flavourless. I wasn’t sure if this
OFFICIAL
was purposeful?

3.  I think that the flavour wheel document would need to specify how people use it. For
example, the fact that there can only be a maximum of two chosen (if this is what we are
saying)

4.  Are we having a process / some way that people can request a flavour be added to the
wheel?  We haven’t really talked about this… it just says that the Ministry will publish.

Document 1
Regards,
s 9(2)

(a)
From:s 9(2)(a)
@health.govt.nz>
Sent: Tuesday, 20 June 2023 11:12 am
To: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>;
s 9(2)(a)
@health.govt.nz>; s 9(2)(a)

@health.govt.nz>
Cc: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)

@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
Subject: RE: Draft Flavour Wheel
Hi,
1982
We did some more work on the flavour wheel and would appreciate any thoughts/feedback on this
version:
SERPR Flavour Wheel.xlsm Refer to Document 1A
Thanks,
ACT
s 9(2)(a)
From: s 9(2)(a)

Sent: Thursday, 18 May 2023 6:31 pm
To: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)

@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
Subject: RE: Draft Flavour Wheel
Here’s the updated flavour wheel now the macros are working again.
From: s 9(2)(a)

Sent: Wednesday, 17 May 2023 11:08 am
To: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)

INFORMATION
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
Subject: Draft Flavour Wheel
RELEASED UNDER THE
OFFICIAL

Document 1A
Category
Flavour Name
Tobacco
Tobacco
1
‐87
Category
Mint
Menthol
1
‐81
Tobacco
1
Mint
Mint
1
‐74
Mint
4
Mint
Peppermint
1
‐68
Nuts & Grains
6
Mint
Spearmint
1
‐62
Spice
6
Nuts & Grains
Almond
1
‐55
Coffee/Tea
5
Nuts & Grains
Hazelnut
1
‐49
Fruit
26
Nuts & Grains
Nut
1
‐43
Sweet & Sour
8
Nuts & Grains
Oat
1
‐36
None
1
Nuts & Grains
Peanut
1
‐30
0
Nuts & Grains
Pecan
1
‐24
Spice
Cinnamon
1
‐17
Spice
Clove
1
‐11
Spice
Licorice
1
‐5
Spice
Nutmeg
1
2
Spice
Pepper
1
8
Spice
Spice
1
14
Coffee/Tea
Cappuccino
1
21
Coffee/Tea
Coffee
1
27
Coffee/Tea
Espresso
1
33
Coffee/Tea
Latte
1
39
Coffee/Tea
Tea
1
46
Fruit
Apple
1
52
Fruit
Banana
1
58
Smokefree
Fruit
Berry
1
65
Fruit
Blackberry
1
71
Environments and
Smokefree
Fruit
Blueberry
1
77
Regulated Products
1982
Fruit
Cherry
1
84
Environments
s and
Fruit
Citrus
1
90
Regulations
Fruit
Coconut
1
‐84
Regulated
Regulated Products
c
Fruit
Grape
1
‐77
Fruit
Guava
1
‐71
Regulation
a
s
s
Vaping Substance
Fruit
Kiwifruit
1
‐65
Fruit
Lemon
1
‐58
Variant Name (Flavour)
Fruit
Lime
1
‐52
Vaping Substance
Fruit
Lychee
1
‐46
Fruit
Mango
1
‐39
Variant Name
Nam (Flavour)
(Flavour)
Fruit
Orange
1
‐33
Fruit
Passionfruit
1
‐27
Fruit
Peach
1
‐21
Fruit
Pear
1
‐14
ACT
Fruit
Pineapple
1
‐8
Fruit
Plum
1
‐2
Fruit
Pomegranate
1
5
Fruit
Raspberry
1
11
Fruit
Strawberry
1
17
Fruit
Tropical
1
24
Fruit
Watermelon
1
30
Sweet & Sour
Caramel
1
36
Sweet & Sour
Chocolate
1
43
Sweet & Sour
Cream
1
49
Sweet & Sour
Custard
1
55
Sweet & Sour
Honey
1
62
Citrus
Sweet & Sour
Sour
1
68
Sweet & Sour
Sweet
1
74
Citrus
Sweet & Sour
Vanilla
1
81
None
Unflavoured
1
87
INFORMATION
RELEASED UNDER THE
OFFICIAL

Document 2
From:
s 9(2)(a)
@health.govt.nz>
Sent on:
Friday, October 20, 2023 3:36:40 AM
To:
s 9(2)(a)
@health.govt.nz>
Subject:
FW: Flavour wheel
Attachments: Thesis_Krusemann_complete.pdf (3.48 MB)
Refer to Document 2A
Thesis_Krusemann_c
omplete.pdf
From: s 9(2)(a)
@hc-sc.gc.ca>
Sent: Saturday, 22 October 2022 1:11 am
To:
1982
s 9(2)(a)
@health.govt.nz>
Cc: s 9(2)(a)
@health.govt.nz>
Subject: Flavour wheel
THE
See chapter 2, attached, thesis for the flavour wheel I was referring to.
ACT
Warm regards,
s 9(2)(a)
De : s 9(2)(a)
@health.govt.nz> UNDER
Envoyé : 2022-10-17 16:34
À : s 9(2)(a)
@hc-sc.gc.ca>
Cc : s 9(2)(a)
@health.govt.nz>
Objet : vaping product packaging
Dear s 9(2) I hope all is well with you.
(a)
With our legislation progressing through Parliament, we are turning our minds to regulations. In
INFORMATION
addition to the regulations needed to implement the smoked tobacco Bill, we considering options to
tighten up the regulation of vaping products as youth uptake continues to rise, causing a fair amount
RELEASED
of concern in some quarters. Subject to the Bill passing in December, we will be publicly consulting
on regulatory proposals in February.
We would be keen on meeting to hear about your experience with your regulatory requirements –
primary in relation to packaging, including product or flavour names. I’m not sure that we are
entirely up to date with the work you have done in this area, but we would be interested in hearing
what you have in place or are considering, as well as whether compliance and enforcement has been
OFFICIAL
a challenge.
And we’d be happy for a general catchup – it’s been a while.
Regards
s 9(2)(a)

Document 2
s 9(2)(a)

Policy and Regulation
s 9(2)(a)

[email address]
Public Health Agency | Te Pou Hauora Tūmatanui
Ministry of Health | Manatū Hauora
133 Molesworth Street Thorndon, Wellington 6011

1982

THE
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ACT
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If you are not the intended recipient, do not read, use, disseminate,
distribute or copy this message or attachments.
UNDER
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INFORMATION

RELEASED
OFFICIAL

Document 3
From: s 9(2)(a)

Sent: Thursday, 24 August 2023 3:31 pm
To: s 9(2)(a)
@health.govt.nz>
Cc: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)
@health.govt.nz>
Subject: Ice memo/unintended consequence and managing queries
Kia ora s 9(2)(a)
Sorry to dump you with this but I haven’t had time the last few days to get around to doing anything
about this. We just need to update the memo to include a little bit about how the industry might
react, what they are now required to do, and what the impact of this might be. s 9(2)  has seen the
memo and asked for more to be added about this.
(a)
I note we have already received a query about this to the vaping inbox – s 9(2)  just mentioned.
(a)
I’m not familiar with the toxicological assessment, or what that means logistically, so can’t really write
up anything about it.
1982
The risk I see is that we are in effect applying a new trade barrier to industry which is an unintended
outcome of the regulations to restrict flavour names. We need to be able to explain what the industry
THE
needs to do and why. And probably justify why this is now a requirement when it wasn’t something
outlined in the consultation etc.
ACT
We need to be able to manage and respond to queries and challenges that will come from industry
on this issue. s   might be able to give you a steer if you don’t know where to start.
Can I leave that with yo
9(2)
u to work on? Run it by s 9(2)(a)
when you’re done, and then
update the mem
(a) o a little to say what we’ve done. UNDER
Just noting it has gone on the webpage today so we will probably want to prepare something soon.
I’m around for the arvo so let me know if you have any questions.
Link –   Memo to GM on Policy decision taken to exclude synthetic cooling agents from approved
flavours for vaping products from SERPR 2023.docx
Audit trail –   Audit Trail - Memo to GM on Flavour Wheel.docx
s 9(2)(a)
will then want to see the memo again before she signs it. You could also share the
INFORMATION
wording that is prepared for media queries.
RELEASED
Ngā mihi
s 9(2)(a)

Public Health Policy & Regulation
OFFICIAL
s 9(2)(a)
[email address]
Te Pou Hauora Tūmatanui l Public Health Agency
Manatū Hauora, 133 Molesworth Street

Document 3A
Memo
Policy  decision  taken  to  exclude  synthetic  cooling  agents  from  approved
flavours for vaping products
Date:
29 August 2023
To:
s 9(2)(a)
, Public Health Policy & Regulation 1982
via:
s 9(2)(a)
, Tobacco Regulatory Authority Establishment
THE
From:
s 9(2)(a)
r Regulatory Products, Public Health Agency | Te Pou Hauora
Tūmatanui
ACT
For your:
Information
Purpose of report
UNDER
1.
This memo informs you of a policy decision taken to exclude non-menthol synthetic cooling
agents, a popular additive, from the list of pre-approved flavours for vaping products.
2.
It is to ensure the decision-making informing the regulatory changes is clear and transparent.
Background and context
3.
Fol owing Cabinet decisions to regulate flavour descriptions for vaping products, the
INFORMATION
Smokefree Environments and Regulated Products Regulations 2021, (the Regulations), wil
include a list of approved flavour names for vaping products. This intends to reduce the
RELEASED
appeal of vaping products to young people. This list wil  also be published on our website.
4.
The Vaping Regulatory Authority (VRA) and Ope Ōpiki developed the vaping product variant
(flavour) list – this is a list of approved vaping product flavours, from which notifiers
(manufacturers and importers) of vaping products wil  be able to select up to two flavour
names to use as the variant name for their products. The list of flavours is a schedule to the
Regulations, and is attached as Appendix one.
OFFICIAL
5.
This paper discusses the decision to exclude common descriptors for synthetic cooling
agents, such as ‘ice’, ‘polar blast’ and ‘winter’, from the flavour list.
6.
The Smokefree Environments and Regulated Products Act 1990 (the Act) defines flavour as a
clearly noticeable smell or taste, resulting from an additive or a combination of additives that
is noticeable before or during the use of the product.
7.
It is the position of the VRA and Ope Ōpiki that a non-menthol synthetic cooling agent is not
a flavour, but rather it is an additive that causes a sensation when added to vaping products.
Page 1 of 5

Document 3A

Current use of synthetic cooling agents as an ingredient in products
8.
Evidence is stil  being developed about potential health risks from synthetic cooling agents.
This is a developing area, and it remains difficult to identify any appropriate regulation.
9.
Ice, as a description can be used to describe a mint or menthol flavour (which are flavour
names on the proposed list), or it can be used to indicate a synthetic cooling ingredient that
has no discernible flavour.
10.  These cooling agents were developed with external uses in mind (eg, shaving foams) but are
used in vaping products to create a cooling sensation for users, similar to that experienced
with menthol chewing gum.
11.  Their presence in vaping products is commonly indicated with wording such as ‘ice’, ‘polar
1982
blast’, and ‘winter’. It can appeal to young people, as the cooling sensation commonly masks
the harshness of high nicotine concentrations.1 Inexperienced vapers may therefore be likely
THE
to be able to tolerate higher nicotine concentrations if they contain a cooling agent.
12.
ACT

Synthetic cooling agents can also be purchased separately and added in smal  amounts to
other vaping liquids. This is available in Aotearoa but is much more common international y.
13.  It is also noted that vaping products available international y widely use these chemicals,
most of which are sold as fruit-ice hybrid flavours, and that they are popular with youth.2
UNDER

Decision to exclude synthetic cooling descriptors from permitted flavour
names
14.  The VRA and the PHA Ope Ōpiki policy team agreed to exclude synthetic cooling descriptors
as permitted flavour names on 29 June 23. This is because synthetic cooling descriptors are
not flavours, but rather adjectives that are used to describe a sensation.
INFORMATION
15.  This decision is supported by marketing material from manufacturers and vaping substance
suppliers, who promote WS-23 (the most commonly used synthetic cooling agent) as
RELEASED
odourless and tasteless.3
16.  Biochemical y, a cooling agent exerts its effect by interacting with temperature-sensitive
receptors in the body, independently from any effects on taste receptors.4
17.  Despite wide-ranging bans on flavouring agents in the U.S and several European jurisdictions,
synthetic cooling agents are identified as potential loopholes due to their flavourless profile.5
OFFICIAL
18.  Mint, menthol, and similar flavour names have been included in the list, for products that
have those flavours.

1 https://tobaccocontrol.bmj.com/content/early/2022/04/27/tobaccocontrol-2021-057073
2 https://bmjopen.bmj.com/content/13/3/e068466 & h ttps://academic.oup.com/ntr/article/25/3/524/6995393
3 https://www.taimacn.com/product/WS-23-Cooling-Agent.html, https://darkstar.co.uk/blogs/darkstar-blog/ws-23-
everything-you-need-to-know & https://flavorjungle.com/products/ws23?variant=39650681454650
4 http://www.afinitica.com/arnews/sites/default/files/techdocs/Menthaol%20article.pdf &
https://img.perfumerflavorist.com/files/base/al ured/al /document/2014/02/pf.PF_39_03_034_10.pdf
5 https://academic.oup.com/ntr/article/24/7/1037/6528985
Page 2 of 5

Document 3A

19.  The new regulations require accurate flavour descriptions to be shown on the product and its
packaging using only 1 or 2 approved flavour names from the published list, so ‘raspberry
ice; or ‘iced raspberry’, for example, would not be permitted as a variant name regardless of
whether the product contains the cooling agent because ‘ice’ and ‘iced’ are not approved
flavour names.
20.  However, manufacturers may continue to use cooling agents in their products and may use
words like ‘ice’ or ‘iced’, ‘cold’ colours, or depictions of ice or snow, for example, on their
packaging to indicate this, provided labelling and packaging complies with al  relevant
requirements.
21.  The PHA’s view is that non-menthol synthetic cooling agents in vaping substances are non-
flavour additives. The Regulations, therefore, require notifiers to carry out a toxicological risk
1982
assessment before including them in their products, and to be ready to explain their inclusion
to the VRA, on behalf of the Director-General, if needed.
THE
22.  The policy intention of restricting variant names did not explicitly intend to exclude synthetic
cooling agents from being a flavour. However, this is an unintended outcome of the
ACT
regulatory amendments which may result in some products requiring additional regulatory
assessment. Manatū Hauora wil  consider this further as part of its vaping policy review later
this year and prepare materials for public communications should the media or industry raise
this issue.
UNDER
Risks and mitigation
23.  The vaping sector may frame the requirement to carry out a toxicological assessment as a
trade barrier. The sector may also chal enge this requirement on procedural grounds as it was
not outlined in the proposed regulatory regime change consultation earlier this year.6 The
consequence may be to impact on implementation of the Regulations.
INFORMATION
24.  The VRA does not believe these to be legitimate arguments as:
RELEASED

Notifiers are already expected to carry out toxicological risk assessments for al  non-
flavouring additives in products they have notified.

It is well-established that synthetic cooling agents such as WS-23 are flavourless, and
the requirement for notifiers to carry out a toxicological risk assessment on non-flavour
additives has been legislated  since the introduction of the Regulations in 2021.

Toxicological information for WS-23 and other synthetic cooling agents are readily
OFFICIAL
available from several manufacturers.
25.  The VRA wil  publish guidance for the sector on this matter on its website to try and mitigate
the risk of sector push-back.

Recommendations

6 https://www.health.govt.nz/system/files/documents/publications/proposals_for_regulation_-
_smokefree_environments_and_regulated_products_act_1990_22_dec_final.pdf
Page 3 of 5

Document 3A

It is recommended that you:
1.  Note
A policy decision was taken that non-menthol synthetic cooling
Noted
agents (eg, ‘ice’) are to be excluded from the list of approved
flavours for vaping products and wil  not be added if requested by
industry as they do not meet the definition of flavour in the Act.
2.  Note
Schedule 5, clause 5 of the regulations requires notifiers to carry
Noted
out a toxicological risk assessment for any additives other than
flavours in a vaping substance, and to be ready to explain their
inclusion to the Director-General if needed.

1982

THE

ACT

s 9(2)(a)
Signature _
________________________________
Date: 30 August 2023
UNDER
s 9(2)(a)

Public Health Policy & Regulation
Te Pou Hauora Tūmatanui | Public Health Agency

INFORMATION
RELEASED
OFFICIAL
Page 4 of 5

Document 3A

Appendix one: Vaping Substance Variant Name List

Category
Flavour Name
(continued)
Tobacco
Tobacco

Fruit
Passionfruit
Mint
Menthol
Fruit
Peach
Mint
Mint
Fruit
Pear
Mint
Peppermint
Fruit
Pineapple
Mint
Spearmint
Fruit
Plum
Nuts & Grains  Almond
Fruit
Pomegranate
Nuts & Grains  Hazelnut
Fruit
Raspberry
Nuts & Grains  Nut
1982
Fruit
Strawberry
Nuts & Grains  Oat
Fruit
Tropical
Nuts & Grains  Peanut
THE
Fruit
Watermelon
Nuts & Grains  Pecan
Sweet & Sour  Caramel
Spice
Cinnamon
ACT
Sweet & Sour  Chocolate
Spice
Clove
Sweet & Sour  Cream
Spice
Licorice
Sweet & Sour  Custard
Spice
Nutmeg
Sweet & Sour  Honey
Spice
Pepper
UNDER
Sweet & Sour  Sour
Spice
Spice
Sweet & Sour  Sweet
Coffee/Tea
Cappuccino
Sweet & Sour  Vanilla
Coffee/Tea
Coffee
None
Unflavoured
Coffee/Tea
Espresso

Coffee/Tea
Latte
Coffee/Tea
Tea
Fruit
Apple
Fruit
Banana
INFORMATION
Fruit
Berry
RELEASED
Fruit
Blackberry
Fruit
Blueberry
Fruit
Cherry
Fruit
Citrus
Fruit
Coconut
Fruit
Grape
Fruit
Guava
OFFICIAL
Fruit
Kiwifruit
Fruit
Lemon
Fruit
Lime
Fruit
Lychee
Fruit
Mango
Fruit
Orange

Page 5 of 5

Document 3B
Audit and Sign-Out Sheet
Download and use the correct template from Te Whare and ensure it aligns with our Communication Standards to avoid
delay  sign-out/approval.  Standard  Director-General  sign-out/approval  turnaround  is  48  hours.  Please  build  this  into  your
timeframes or talk to DGA if your paper is urgent or you have any other queries.
Memo to Public Health Policy and Regulation Group Manager: Policy decision taken to exclude ‘ice’ from approved
Title
flavours for vaping products.
Manatū Hauora
Commissioned
Document type  Memo
Commissioned by
29/06/2023
on
Due
Select date
Primary contact
Matt Burgess
Reference
Pātengi
No
number
Proactive release
location
Background and context for reviewers – Leave blank if not needed
1982
It is a file note, and wil  be sent to DDG for noting, but does not require sign-off.
THE
Audit and Sign Out – By signing below you confirm that you have fulfil ed your responsibilities outlined on Page 2
ACT
Role
Name
Title
Directorate/Agency
Date
Signature
s 9(2)(a)
, Regulated
s 9(2)(a)
Author
s 9(2)(a)
Products
PHA
3/07/23
, Compliance,
UNDER
Peer reviewer
s 9(2)(a)
Regulated Products
PHA
3/07/23
, Regulated
Proof-reader
s 9(2)(a)
Products
PHA
15/08/23
,
SME
s 9(2)(a)
Regulated Products
PHA
28/08/23
Manager
Regulated Products
PHA
29/08/23
s 9(2)(a) INFORMATION
GM or
, Public
s 9(2)(a)
equivalent
Health Policy & Regulation
PHA
30/08/23
RELEASED
Consultation - You must consult where your document or advice may have an impact eg. with the Public Health Agency, Māori Health,
Legal, Communications, Finance, Te Whatu Ora, Te Aka Whai Ora, Te Aho o Te Kahu, Whaikaha, or other relevant agencies, etc.
Directorate/Ag
Role
Name
Title
Date
ency
Ope Ōpiki, Public Health Policy &
Policy

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Regulation
PHA
15/08/23
Select one
Select date
PARC Approval – for al  Cabinet papers except APH
Name
Signature
papers
Group Manager Note
Noted

Document 3B
Audit and Sign-Out Sheet

By signing the Audit and Sign-Out Sheet you agree to have fulfilled the expectations and responsibilities below
•  Drafts high-quality advice that addresses the peer review and proof-reader points below
Author
•  Adheres to the Manatū Hauora Communications Standards and uses the correct template
•  Considers whether additional consultation is required (see below)
•
Peer Reviewer
  Reviews the advice for audience focus, readability, analysis, robust advice, and where necessary,
checks that appropriate consultation has happened (see below)
•  Ensures that advice is properly formatted with no spel ing/grammatical errors, that the correct
Proof-reader
template has been used, and the advice meets the Manatū Hauora Communications Standards
•  This may be an EA/PA, the peer reviewer, or someone else
•  Ultimately responsible for the document and will have been involved in the commissioning, and
Responsible
is the person to whom the author, peer reviewer and proof-reader are responsible to.
Manager
•  This may be a manager, or a Group Manager and it wil  be the person that your DDG, the DG,
or a Minister, wil  turn to if they need to discuss the advice
1982
Accountable DDG  •  Is accountable for the process leading to the final product they sign-out
or equivalent
•  May need to discuss the advice further with the Director-General or Minister(s)
THE
•  If applicable, relevant internal parties have been consulted, including finance, legal, policy,
clinical, and communications
ACT
Consultation
•  If appliable, necessary external consultation has occurred and is included in paper  where
appropriate (ie. with Te Whatu Ora, Te Aka Whai Ora, Treasury, other government agencies)
•  Does the document contain surprises for your DDG or the DG? If so, have they been consulted?
Before you start your report - consider the following:
UNDER
1.  Why is it being provided - is it in response to a request from the Minister or DG, or is it being done at our own initiative?
2.  What’s the context – has there been recent public, political or sector interest in the report’s subject matter?
3.  Is this a regular briefing to the Minister or DG – if so, what is normal y included and what has the Minister previously asked be
added?
4.  Is it related to another piece of work, eg. a Cabinet paper, another report – if so, what context should they know?
5.  What degree of analysis is needed – how much commentary do you need to provide?
6.  Is the Minister or DG already relatively familiar with the subject matter?
7.  Have you got the correct template (Aide-memoire, Health Report, DG or Minister Memo, Cabinet paper)?
INFORMATION
Quality of the advice - what to include
RELEASED
8.  A report should not simply summarise facts but provide Ministers or the DG with information they can use to understand the
implications of decisions they’re being asked to make. Only make recommendations if some action or decision is required.
9.  The paper should:
•  meet the intended audience’s needs and focus on the Minister or DG’s use of material
•  tel  a logical, compel ing story that is easy to understand
•  be clearly written using active and direct language, and be as brief as possible
•  include information on the scope of the matter/problem
OFFICIAL
•  include information on risks (what could go wrong and how confident are we in our information?) and risk mitigation (how
do we avoid things going wrong?)
•  include information on costs and data (if relevant)
•  contain action-orientated recommendations with no unnecessary noting recommendations
•  indicate who the Minister or DG wil  be meeting and what Ministry official(s) wil  be attending (if relevant)
•  contain clear next steps (including who is doing what and by when).
Proof-reading
10.  Is the paper consistent with the most recent Ministry’s Communication Standards?

Document 4
From: s 9(2)(a)

Sent: Monday, 27 February 2023 9:59 am
To: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)

@health.govt.nz>
Subject: RE: Vaping submission
Môrena, here’s the other vape flavour article from the March 2023 issue. Just shows how complex
the evidence is around flavours, which we may need to reference in the RIS.
Associations Between E-cigarette Use and E-cigarette Flavors With Cigarette Smoking Quit Attempts
and Quit Success: Evidence From a U.S. Large, Nationally Representative 2018–2019 Survey |
Nicotine & Tobacco Research | Oxford Academic (oup.com)
This one suggests:
- smokers that vape are more likely to make quit attempts/successfully quit
- users of flavoured vapes are more successful than unflavoured or tobacco flavoured vapes
1982
- those who use mint or menthol are as successful as those who use other flavours (fruit/sweet) –
though they reference the other studies that have suggested these fruit/sweet flavours are more
THE
associated with success
- based on their findings they suggest removing flavours aside from mint and menthol would not
ACT
harm smoking cessation but would remove youth appeal (possibly in conflict with the article I sent
Friday about youth liking the cooling properties that menthol presents)
- they reference multiple surveys that suggest if flavours were restricted, a sizeable group of vapers
would return to smoking
- limitations of the study include that they didn’t really look at how type of vape device interacted
UNDER
with flavours and smoking cessation, and this is US based with a strong history of African American
use of menthol flavour, which might make the findings less applicable to us.
And here’s a highly relevant but small study looking at how youth perceive vape packaging.
Vaping Flavors and Flavor Representation: A Test of Youth Risk Perceptions, Novelty Perceptions,
and Susceptibility | Nicotine & Tobacco Research | Oxford Academic (oup.com)
This found:
INFORMATION
- middle schoolers (11-14) who view the fruit-flavoured vaping product with flavour colour and
RELEASED
flavour image were more likely to consider it fun and interesting and were seen as more susceptible
to trying vaping (compared to tobacco flavour colour and image or no colour and image)
- restricting flavour representation on packaging might reduce how fun and interesting youth
perceive these products to be and how susceptible they are to using them
- limitations are that it was only 176 children
- they suggested additional research with adult smokers is needed to check how these changes
would impact their behaviour. “Future research should also continue to investigate other
OFFICIAL
approaches not tested in this study, such as restricting the descriptors of flavours and selling these
and other products in adult-only brick-and-mortar shops.”
Ngâ mihi,
s 9(2)(a)
From: s 9(2)(a)

Sent: Friday, 24 February 2023 2:25 pm

Document 4
To: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)

@health.govt.nz>
Subject: RE: Vaping submission
Hi again
More for us to discuss.
This is a really difficult article to get my head around, but feels like it could be very relevant to our
vaping flavours work. Perceived Sensory Characteristics of Blended and Ambiguous “Concept”
Flavors Among Adolescent and Young Adult E-cigarette Users | Nicotine & Tobacco Research |
Oxford Academic (oup.com)
If I’m interpreting it correctly, it’s saying:
•
A cooling sensation is at least as important as whether a flavour profile is sweet or fruity (I’m
not sure if we have or can factor this into the flavour wheel)
1982
•
Industry suggests removing ‘descriptive’ flavour names like ice mango, and moving to
‘concept’ flavour names like marigold will remove youth appeal (basically the opposite of
THE
what we’re proposing)
•
The authors are not convinced this is true, as they say youth are able to find concept
ACT
flavours that match their preferred descriptive flavours (but raises the question of whether
changing it either way would have any effect on youth usage)
•
Youth already seem to mostly use descriptive flavours – though they acknowledge this could
be an association with the type of devices they use (ie young people mostly use disposables,
disposables may mostly have descriptive names etc).
UNDER
•
They suggest the US menthol cigarette ban should be extended to ban cooling agents in
vapes, as that effectively masks the harshness of high levels of nicotine (worth discussing).
There are other vape flavour articles in this March 2023 journal that I haven’t got to yet, including
impact on quit smoking success, so I may share more relevant stuff next week.
Ngâ mihi,
s 9(2)(a)
INFORMATION
From: s 9(2)(a)

Sent: Friday, 24 February 2023 12:20 pm
RELEASED
To: s 9(2)(a)
@health.govt.nz>; s 9(2)(a)

@health.govt.nz>
Subject: Vaping submission
Whitehall-smokefree-environments-regulations-submission-form_feb_2023.pdf
Refer to Document 4A
Kia ora kôrua
OFFICIAL
This is an interesting submission on behalf of what I assume is a vape retailer/organisation. Their
answers to questions across the document demonstrate a thorough understanding of our proposals.
If you skip to page 14, you can see the responses on youth vaping. I think there’s some useful
challenges and suggestions to consider when preparing the RIS.

Document 4
Might be best if we work through the answers together and test the validity. I suspect we can
dismiss some of the recs as unworkable, but other challenges may be suitable to list as cons in the
RIS. Matt I think we’ll really need your expertise re batteries etc.
I’ll set up a meeting for Wednesday. Best if you spend 10-15 mins beforehand reading through those
6 pages.
Ngâ mihi,
s 9(2)(a)

Please note, my standard days of work are Mon(9-2.30),
Wed (8.30-5.30), Thurs (7.30-3.30) and Fri (9-2.30)
s 9(2)(a)

1982
@health.govt.nz
Public Health Agency | Te Pou Hauora Tūmatanui
THE
Manatū Hauora, 133 Molesworth Street
Thorndon, Wellington 6011
ACT
UNDER
INFORMATION
RELEASED
OFFICIAL

Document 4
Submission form:
Proposals for the Smoked
Tobacco Regulatory
Regime
1982
Your details
THE
ACT
This submission was completed by: (name) s 9(2)(a)
Email:
Organisation (if applicable):
Whitehall Limited
UNDER
Additional information

These questions are optional. We are only asking for your age and ethnicity to help us
analyse submissions.
My age is:
INFORMATION
☐
Under 18
RELEASED
☐
18 – 34
☐
35 – 44
☐
45 – 54
☐
55 – 64
☐
65 +
☒
Not applicable (eg, I am submitting on behalf of an
OFFICIAL
organisation or group)

SMOKEFREE ENVIRONMENTS AND REGULATED PRODUCTS ACT 1990: PROPOSALS FOR REGULATIONS
1

Document 4
The ethnicity/ethnicities I identify with are:
☐
New Zealand European / Pākehā
☐
Māori
☐
Pacific Peoples
☐
Asian
☐
Other European
☐
Other ethnicity
☒
Prefer not to say/ not applicable (eg, I am submitting
on behalf of an organisation or group)
If other ethnicity, please specify:
Please provide details of any Iwi you might affiliate to below.
Click or tap here to enter text.
1982

THE
I am, or I represent, the fol owing category or categories: (tick all that apply) ACT
☐  Personal submission
☐  Healthcare provider (eg, primary care provider,
stop smoking provider)
☐  Community or advocacy
☐  Professional organisation
organisation
UNDER
☐  Iwi/Hapū affiliated, and/or Māori  ☐  Tobacco manufacturer, importer or distributor
organisation
☐  Pacific community organisation   ☒  Vaping or smokeless tobacco product retailer,
distributor or manufacturer
☐  Government organisation (eg,
☐  Smal  retailer (eg, dairy or convenience store)
local council)

Research or academic
☐  Medium or large retailer (eg, supermarket
INFORMATION
organisation
chain or large petrol station)
☐  Other (please specify):

RELEASED

Click or tap here to enter text.

Privacy
We intend to publish the submissions from this consultation, but we will only publish your
submission if you give permission. We wil  remove personal details such as contact
OFFICIAL
details and the names of individuals.
If you do not want your submission published, please tick this box:
☐  Do not publish this submission.
Your submission wil  be subject to requests made under the Official Information Act (even if
it hasn’t been published).

2
SMOKEFREE ENVIRONMENTS AND REGULATED PRODUCTS ACT 1990: PROPOSALS FOR REGULATIONS

Document 4
Commercial interests
Do you have any commercial interests?
☐  I have a commercial interest in smoked tobacco products
☒  I have a commercial interest in other regulated products (vaping products, other
notifiable products)
☐  I have commercial interests in both smoked tobacco and other regulated products
(vaping products, other notifiable products)
☐  I do not have any commercial interests in smoked tobacco or other regulated products
(vaping products, other notifiable products)
Commercial y sensitive information 1982
THE
We wil  redact commercial y sensitive information before publishing submissions or
releasing them under the Official Information Act.
ACT
If your submission contains commercial y sensitive information, please tick this box:
☐  This submission contains commercial y sensitive information.
If so, please let us know where.
UNDER
Click or tap here to enter text.
Protection from commercial and other
vested interests of the tobacco
INFORMATION
industry
RELEASED
New Zealand has an obligation under Article 5.3 of the World Health Organisation
Framework Convention on Tobacco Control (FCTC) when ‘setting and implementing public
health policies with respect to tobacco control … to protect these policies from the
commercial and other vested interests of the tobacco industry’.
OFFICIAL
The international y agreed Guidelines for Implementation of Article 5.3 recommend that
parties to the treaty ‘should interact with the tobacco industry only when and to the extent
strictly necessary to enable them to effectively regulate the tobacco industry and tobacco
products’.
The proposals in this discussion document are relevant to the tobacco industry and we
expect to receive feedback from companies in this industry. We wil  consider al  feedback
when analysing submissions.
SMOKEFREE ENVIRONMENTS AND REGULATED PRODUCTS ACT 1990: PROPOSALS FOR REGULATIONS
3

Document 4
To help us meet our obligations under the FCTC and ensure transparency, all respondents
are asked to disclose whether they have any direct or indirect links to, or receive funding
from, the tobacco industry.
Please provide details of any tobacco company links or vested interests below.
Click or tap here to enter text.
Please return this form:
By email to: [email address]
By post to: Smokefree Consultation, PO Box 5013, Wel ington 6140.
1982
THE
ACT
UNDER
INFORMATION
RELEASED
OFFICIAL
4
SMOKEFREE ENVIRONMENTS AND REGULATED PRODUCTS ACT 1990: PROPOSALS FOR REGULATIONS

Document 4
Consultation questions
The Ministry of Health is seeking comments on the fol owing.
Regulatory proposal 1a: Number of
smoked tobacco retail premises and
their distribution across Aotearoa
This section focusses on how stores that sel  tobacco products wil  be spread across the
1982
country. In this section you can tel  us if there’s anything you think we should know about
how areas should be defined, how many stores should be in each area, and anything
THE
important about your area.
ACT
This proposal relates to the written notice under section 20M of the Act to set a maximum
number of retail premises in areas of New Zealand. Currently there are around 6,000
retailers of smoked tobacco products in Aotearoa. The recent changes to the Act mean that
no more than 600 approved retail premises wil  be permitted to sel  smoked tobacco
UNDER
products across the country. We propose that New Zealand be divided into areas based on
whether they are urban or rural.
We have suggested an example scenario for smoked tobacco retail premises summarised
by region. It is likely that the final distribution wil  need to be adjusted to take into account
feedback from consultation, so this is a starting point for discussion only.
1.
Do you agree with dividing Aotearoa into areas and having a separate maximum
INFORMATION
number of smoked tobacco retail premises for each one?
RELEASED
☐    Yes
☒
No
2.
Do you agree with the concept that urban and rural areas should be treated
differently?
OFFICIAL
☒    Yes
☐
No
If you have any comments on how we have defined rural and urban, or how the
geographic nature of the area required by the Act should be taken into account, write
them here.
SMOKEFREE ENVIRONMENTS AND REGULATED PRODUCTS ACT 1990: PROPOSALS FOR REGULATIONS
5

Document 4
The Director General must make a written notice setting a maximum number of retail
premises for all New Zealand or divide New Zealand into different areas and set a
maximum number of retail premises for each area. Setting a maximum number of
retail premises for each area adds an additional layer of complexity and runs a risk of
not fit for future purposes over time as population changes and (if the amendment
act meets its objective) various areas reach smokefree levels faster than others.
Specifying the maximum number of retail premises for New Zealand gives the
director general the ability to tweak the distribution of licenced tobacco retailers over
time.
3.
Do you agree with our suggested allocation scenario, as described in Table 1 of the
consultation document and the supplementary maps we have produced?
☒    Yes
1982
☐
No
How else could you determine the maximum number of retail premises for each area,
THE
bearing in mind the Act allows for a maximum of 600 retail premises?
ACT
As an initial cut, this is a pragmatic allocation of the 600 retail premises with what
seems to be the best intentions by the Ministry of Health to implement the
regulations. However, whenever top-down, desktop exercises like this are completed,
they wil  always be “wrong”, so it is crucial that the Director General retains the
UNDER
flexibility to tweak al ocations when inevitable issues arise.
4.
We are interested in understanding the needs of different areas of Aotearoa. What is
your area?
☐  Northland (Te Tai Tokerau)
☐  Manawatū/Whanganui
☒  Auckland (Tāmaki Makaurau)
☐  Wairarapa/Wel ington (Te Whanganui-a-Tara)
☐  Waikato
☐  Nelson/Marlborough (Whakatū/Te Tauihu-o-
INFORMATION
te-waka)
☐  Bay of Plenty (Te Moana a Toi-
☐  Tasman/West Coast (Te Tai o Aorere/Te Tai
RELEASED
te-Huatahi)
Poutini)
☐  Tairāwhiti/Hawkes Bay (Te
☐  Canterbury/Chatham Islands
Matau-a-Māui)
(Waitaha/Wharekauri/Rēkohu)

Taranaki
☐  Otago/Southland (Ōtākou/Murihiku)
☐  Other/I am not in New Zealand
(please specify):
OFFICIAL

Click or tap here to enter text.

6
SMOKEFREE ENVIRONMENTS AND REGULATED PRODUCTS ACT 1990: PROPOSALS FOR REGULATIONS

Document 4
Regulatory proposal 1b: Minimum
requirements for approval as a
smoked tobacco retailer
This section focusses on minimum requirements for sel ing smoked tobacco products. In
this section you can tel  us about who should be al owed to sel  and what type of systems
you think they should have.
This proposal relates to key criteria under 20I and regulation making powers under 82A of
the Act to require the retailer to meet certain criteria before they can be approved.  1982
The Director-General of Health must be satisfied that retail premises are run by people who
are ‘fit and proper’. Further requirements that need to be met can be set in regulations for
THE
security, training, delivery, other business systems, and other relevant criteria. We have
proposed some requirements which are intended to ensure that the retail scheme works as
ACT
intended.

1.
Do you agree with the proposed requirements for a ‘fit and proper’ person in
Appendix 2 of the consultation document?
UNDER
☒
Yes
☐
No
If you have any comments on the proposed requirements for a ‘fit and proper person,
please write them here.
Further clarity should be provided on the proposed approval process and decision-
making criteria for instances where an Approved Tobacco Retailer is sold to another
INFORMATION
party (or) key management personnel / directors change in a smoked tobacco retailer
which deems previous assessment of a “’fit and proper’ person void.
RELEASED
2.
Do you agree with the minimum requirements we have proposed for security
systems, training, sales systems, delivery systems and other business systems?
☒
Yes
☐
No
OFFICIAL
Do you have any other suggestions?
The minimum requirements are rational and given the 6000 smal  businesses
currently participating in a ~ $2.5b industry (~$400k per store in annual sales
revenue) are going to be competing for 1 of 600 licenses potentially worth $4m+ in
annual sales revenue per store so it makes sense that the “winners” have appropriate
security and business systems in place. Appendix 2 refers to a minimum requirement
as being ‘any further matters the Director-General considers relevant’. This is clearly a
SMOKEFREE ENVIRONMENTS AND REGULATED PRODUCTS ACT 1990: PROPOSALS FOR REGULATIONS
7

Document 4
‘catch al ’ clause, this is a subjective / discretionary requirement which is better suited
for the ranking of applications process rather than as a minimum requirement for
stores to apply.
Regulatory proposal 1c: Approval
processes and decision-making
criteria
This section focusses on the retail application process for smoked tobacco retailers. The Act
requires that the Director-General determine and publish a process for applications. We are
seeking feedback on 2 main parts: firstly, how the application process wil  be run, and 1982
secondly how we wil  compare applications against each other if there are too many
applicants for an area.
THE
Here you can tel  us what you think is important to consider.
ACT
You can find more details on this proposal in the consultation document.
1.
Do you agree with the proposed application process?
UNDER
☒
Yes
☐
No
2.
Are there any aspects that need to be clearer?
3.
If you have any changes or additions to the criteria we have proposed, please write
them here.
INFORMATION
For a typical tobacco retailer to justify the investment and risk required to be at this
RELEASED
level would be quite difficult given the intent to introduce VLNC in phase 2 of the
Amendment Act which are designed to not be adopted by current smokers.

Although out of scope to this consultation, we are unclear why cabinet made the
decision to sequence the reduction of tobacco retail premises prior to the
introduction of VLNC.
OFFICIAL
4.
What do you think are the most and least important things to take into account when
assessing an application?
Most important criteria to take into account is a history of compliance to the
Smokefree Environments and Regulated Products Act.

8
SMOKEFREE ENVIRONMENTS AND REGULATED PRODUCTS ACT 1990: PROPOSALS FOR REGULATIONS

Document 4
Additional retail questions
1.
Do you have any feedback on additional decision-making criteria and processes for
sel ing smoked tobacco products online?
No feedback, to the best of our understanding the quantity of smoked tobacco
products sold online is relatively low.
2.
Do you have any feedback on possible support for retailers who are no longer able to
sel  smoked tobacco products?
5400 small businesses are frantically trying to find a way to hedge the impending
$400k average annual sales revenue loss resulting from removal of smoked tobacco
products from their store. A ‘natural’ reaction for many of these retailers wil  be to
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meet consumer demand by considering stocking black market tobacco products, or
grey market vaping products.
THE

The best support for these retailers is to:
ACT

1) Continue regulating vaping products in a risk proportionate way that ensures
continued availability of vaping products to these retailers that deliver nicotine to
consumers at comparable levels to a combustible tobacco cigarette.

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2) Review regulations to reconsider alternative non-tobacco reduced harm nicotine
products not currently permitted for sale in New Zealand e.g. nicotine pouches.

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Regulatory proposal 2: Low nicotine
requirements
From 1 April 2025 only low nicotine smoked tobacco products wil  be al owed in Aotearoa.
This section focusses on the details of testing and product requirements, application
processes as wel  as product packaging updates needed.
You can find more details on this proposal in the consultation document.
1.
Do you agree that a suitable testing method may include a method based on WHO
SOP4, validated to account for the low nicotine levels prescribed?
☒
Yes
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☐
No
THE
2.
Do you have any other suggestions for suitable chemical analytical methods?
ACT
Not qualified to make a suggestion.
3.
Do you agree with the proposal that the main packaging change should be to allow
the words ’very low nicotine’ on qualifying smoked tobacco products?
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☒
Yes
☐
No
4.
Do you agree with the proposal to require an insert in smoked tobacco product
packs?
☒
Yes
INFORMATION
☐
No
If you have any additional feedback on smoked tobacco packaging, please comment
RELEASED
here.
Tobacco importers and notifiers should be permitted to communicate to consumers
about very low nicotine cigarettes, both pre implementation and post
implementation. In addition, Smoked tobacco products should receive a vaping
advertising exemption that permits brands to recommend a specific nicotine vaping
product for consumers to transition to.
OFFICIAL
5.
Do you agree with the product application requirements?
☒
Yes
☐
No
If you have further comments on product application requirements, please write them
here.
Click or tap here to enter text.
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6.
Do you agree with the proposed requirements for temporary approvals?
☒
Yes
☐
No
If you have any comments on the proposed requirements for temporary approvals,
please write them here.
Click or tap here to enter text.

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THE
ACT
UNDER
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Regulatory proposal 3: Fees
This section focusses on fees for applications, registrations and product approvals.
You can find more details on this proposal in the consultation document.
1.
Do you agree that Manatū Hauora should charge for these processes?
☒
Yes
☐
No
What processes do you suggest we charge for?
Click or tap here to enter text.
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THE
2.
Do you agree with the level of each of the fees?
ACT
☐
Yes
☒
No
If not, how much do you suggest we charge?
UNDER
There should be a tiered Smoked Tobacco Retailer Fee based on the stage an
applicant progresses to which al ows for:
1) Stores which are dismissed from not meeting the minimum requirements
2) Shortlist Fee
3) Success fee (for the 600 successful retailers)
3.
Do you agree with our cost recovery approach?
INFORMATION
☒
Yes
RELEASED
☐
No
If not, what approach do you suggest we use?
Click or tap here to enter text.

OFFICIAL

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Regulatory proposal 4: Notification
requirements
This section is about the process for distributors of smoked tobacco products and retailers
of notifiable products to tel the Director-General about their business.
You can find more details on this proposal in the consultation document.
1.
Do you agree with the proposal that distributors and general retails be required to
re-register annually?
☒
Yes
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☐
No

THE
If you have any further comments (including how frequently registration should be
required) please write them here.
ACT
Click or tap here to enter text.

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Regulatory proposal 5: Youth vaping
Youth vaping rates are currently increasing. We propose extending vaping packaging and
product restrictions to further improve product safety and reduce the appeal of these
products to young people, specifically through restricting flavour names and introducing
product safety requirements for single use vaping products.
You can find more details on this proposal in the consultation document.
1.
Do you agree with the proposal to restrict the flavour names of vaping products to
minimise their appeal to youth?
☐
Yes
☒
No
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If not, why not? If you agree, which names do you think should be excluded or
THE
replaced on the example e-liquid flavour wheel set out in the consultation document?
ACT
The consultation document raises concerns over youth vaping and proposes to
restrict the flavour names of vaping products to minimise their appeal to youth.

While flavours are to some extent ‘Generic’ they play an important role for adult
smokers transitioning from smoked tobacco products and are only permitted for sale
UNDER
in R18 SVR retail premises.

Because of wide range vaping products available (which are designed to appeal to a
wide range of adult ex-smoker / smoker’s consumer preferences), there needs to be
the ability to label product flavours in a way that helps adult consumers navigate to a
suitable flavour profile for their needs.

One of the original intents of the Smoke Free Environments and Regulated Products
INFORMATION
act was to regulate vaping products in a way that allows for future innovation and
segment evolutions.
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Recommendation
Rather than prescribing a “permitted list” of flavour descriptors, we recommend
introducing a “prohibited” flavour name list; whereby the Ministry of Health can test
the assumption that availability of certain flavour names in R18 specialty vape stores
such as ‘Unicorn Milk’ is correlated to the level of youth vaping.
OFFICIAL
The benefits of this approach are:

Much quicker to implement vs blanket product name changes for any flavour
descriptors that don’t match a name on a constrained flavour wheel.

Reduces the risk of a defacto flavour ban for any flavour profiles not added to the
‘flavour wheel’

Less consumer confusion resulting from flavour descriptor name changes that are not
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deemed as appealing to youth.


2.
Do you agree with the proposal to extend product safety requirements for disposable
vaping products?
☒
Yes
☒
No
If you have further comments on the proposal to extend product safety requirements
for disposable vaping products, please write them here.
The consultation document raises concerns over youth vaping and proposes to
extend product safety requirements for disposable (single use) vaping products.

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The current wording and rationale for the proposed extended safety requirements in
the consultation document has no link to reducing the appeal of vaping to youth,
THE
runs a high risk of adverse consequences to other vaping product categories and wil
result in inexperienced users being forced to switch to vaping products currently
ACT
reserved for advanced vaping product users who receive extensive product safety
education from Specialty Vape Retailers upon sale.

If the Ministry of Health wishes to ban disposables to address concerns over youth
vaping and product safety due to the low cost / mass produced nature of single use
UNDER
vaping devices, we recommend regulations are amended to prohibit single use
disposables vaping devices rather than introducing new standards that disposable
vaping devices cannot comply with to the detriment of reputable reusable vaping
devices responsibly distributed in New Zealand.

User Safety Mechanisms
The consultation document proposes that all vaping devices must have a mechanism
INFORMATION
to prevent the device being activated or accidently operated by a child.
RELEASED
Introducing a mechanism to prevent a disposable vaping device from being activated
or accidently operated by a child wil  not reduce the appeal of vaping to youth.

A  “mechanism” is quite vague but we assume intends refer to anywhere from a
simple button to an inbuilt age verification system on the vaping device.
Button Mechanism
OFFICIAL
If youth do experiment with a vaping product that contains a ‘button’ mechanism to
prevent accidental operation, they wil  eventual y work out how to press the button.
There are several reusable vaping devices (both prefil ed and refil able) which don’t
have a ‘button mechanism’ sold in thousands of stores that have helped a significant
number of ex-smokers successful y switch to vaping (refer to vaping annual returns
for qty).
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One of the key reasons for these products success in New Zealand is their ease of
use. The more complicated vaping devices are to operate, the less effective vaping
becomes at lowering smoking rates.
Vaping devices sold in New Zealand already include instructions for safe operation,
including warnings to keep devices away from reach of pets or children when not in
use.
Inbuild Age Verification System

A smal  number of vaping products now discontinued (IQOS Veev Gen1, RELX ALPHA
& JUUL)  have unsuccessful y tried to include a “device lock” which prevents
operation of a vaping device until the customer has created an online account with
the manufacturer that verifies their age using a passport or drivers licence against a
government database, then links the device to the customers account before the
device is unlocked.
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The primary reason these attempts have been unsuccessful is because the technology
THE
isn’t compatible with vaping products or feasible at a localised level; Mobile device
app stores prohibit any vaping related applications which makes it difficult to connect
ACT
a vaping device to the internet to complete verification and most vaping devices in
New Zealand are international brands sold in multiple markets which combined made
it a very unreliable user experience.
As vaping product retailer, we stocked one of these products designed exclusively for
UNDER
New Zealand for a short period of time prior to it being delisted; 1 (one) customer
was able to successful y unlock their device unassisted after 1 hour of repeat
attempts, the rest had to be assisted remotely over a number of days via email and
phone cal s with the device manufacturer. Most of the devices we sold were
subsequently returned and exchanged for an easier to use alternative device.
Pursuing this path wil  result in a significant reduction in availability of vaping
products and wil  prevent adult smokers who are not tech savvy or don’t have access
INFORMATION
to a computer from vaping.

RELEASED
Recommendation: Now is not the time to require user safety mechanisms to prevent
accidental activation. This wil  have no improvement to user safety and does nothing
to reduce the appeal of vaping to youth.
Removable/Replaceable Batteries
The consultation document proposes a requirement that all vaping devices to have a
OFFICIAL
removable battery to enable the battery to be inspected (and therefore prevent risk
of battery failure/explosion).
When removal batteries are used properly and as intended by users in vaping
devices, there is a very low risk of battery failure and device explosion. However, for
inexperienced users not educated in battery safety, removable batteries pose a
significantly increased (and unnecessary) safety risk.
Based on ACC injury claims, most vaping battery failure incidents relate to improper
care and use by inexperienced users dealing with removable batteries. The vast
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majority of Specialty Vape Retailers offer comprehensive education on battery safety
to customers and ongoing care is required to ensure battery wraps are maintained to
prevent battery failure.
The majority of vaping devices notified in New Zealand contain inbuilt batteries which
are securely sealed within. These devices draw significantly less electricity from the
battery as compared to devices designed for removable batteries, and the current
product safety standards in vaping regulations already require devices to be
compliant to New Zealand electrical safety standards.
Substance container label ing
The proposal to clarify that all vaping products must have the prescribed labels on
substance containers, including single-use devices, where the container may be the
device makes sense and brings single use disposable vaping products in line with
other nicotine vaping products.
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Sufficient transition time should be provided to impacted products to comply.
THE
The clarification should specify what prescribed label ing exactly means to remove
ACT
any ambiguity between the concentration of nicotine S5 Part 1 1(i) regulations and
strength of nicotine salts (Email guidance provided to industry) and ensure
consumers have a single reference point they can use to compare between products.
Nicotine concentrations in non-refillable products
UNDER
The consultation document proposes reducing the maximum concentration of
nicotine salts al owed in single-use products from 50mg/mL to 35mg/mL (as people
can choose to use a lower concentration of nicotine in re-useable devices, but single-
use devices have a fixed nicotine concentration that is generally close to the
maximum al owed).
Reducing the concentration of nicotine
INFORMATION
When assessing policy related to maximum nicotine levels, we urge decision makers
to consider the emissions content of nicotine (i.e. the type of device typically used
RELEASED
with the vaping substance). The problem with ‘reducing maximum nicotine
concentrations’ is that current (smal , low powered) devices wil  ultimately be replaced
with larger, more powerful devices with coils that can vaporise e-liquid in a way that
delivers nicotine to consumers at a comparable (or higher) level. While this may
appease stakeholders who chal enge the maximum nicotine levels, it is ineffective
policy that does not directly reduce the appeal of vaping, or the nicotine consumed
by people who vape.
OFFICIAL
The Ministry of Health has previously communicated that 50mg/mL nicotine
concentration does not pose any safety risk or concerns to public health but notes
that it may result in higher levels nicotine dependency and recognises that availability
of vaping products that can deliver a similar level of nicotine to a combustible
cigarette helps deliver the governments ambition of Smokefree 2025.

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Ability to choose lower nicotine levels.
Non-refil able nicotine vaping products (including single use disposable vaping
products) are already available in multiple levels of nicotine which gives consumers
choice and the ability to reduce nicotine intake over time.
Prefil ed pods have a fixed nicotine concentration as do e-liquid bottles; Single use
disposable vaping devices should not be treated differently.
While we agree that a large proportion of single use disposable vaping devices in
New Zealand contain nicotine levels at concentrations close to the maximum allowed,
this if the extended regulations permit the sale of single use vaping products, an
extended range wil  fol ow to meet evolving consumer needs.
Delivery of Smokefree 2025
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To successful y deliver smokefree 2025, smoked tobacco consumers must have access
to vaping products that deliver a comparable level of nicotine to deliver a similar level
THE
of satisfaction which in turn reduces the risk of fuel ing demand for black market
tobacco products.
ACT
Recommendation: Now is not the right time to be reducing maximum nicotine levels
in vaping products.
There is no clear rationale provided in the consultation paper that demonstrates a
UNDER
public health benefit resulting from reducing the maximum nicotine levels for single
use disposable vaping products.
This proposal contradicts with the proposal of requiring replaceable batteries in al
vaping devices (if single use disposable vaping products had a removable /
replaceable battery they wouldn’t be a single use disposable vaping product).
3.
Do you agree with the proposal to restrict where Specialist Vape Retailers can be
located?
INFORMATION
☐
Yes
RELEASED
☒
No
If you have any further comments on where Specialist Vape Retailers are located
(including any particular locations that are important to you), please write them here.
The consultation document proposes setting out proximity restrictions relating to
where a Specialist Vape Retailer (SVR) is located. This would mean that the Director-
OFFICIAL
General would need to give consideration to where a business intends to operate
when deciding to give a person approval to be an SVR. For example, the distance
from schools and sports grounds or other considerations specific to certain
communities.

Our understanding of the rationale behind this proposal is not necessarily that SVR
stores located nearby school are sel ing to youth (which could easily be addressed by
enforcement of the SERPA) but rather that their visibility is in part correlated to the
appeal of vaping amongst youth.
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Proximity to Schools
There are approximately 2500 Schools tactical y located around New Zealand in
“School Zones” which aim to maximise coverage. Many of New Zealand’s youth
commute to school daily, roam their local area and visit shopping centres. In the
process of this normal daily part of life, they pass by a number of that sel  products
intended for adults stores (not located near schools). Incidental visibility of vape
stores to youth is inevitable.
Existing SVR Stores
There are now more than 1000 specialty vape retail premises in New Zealand, with a
number of these are already located near schools.

While we agree that in some of the more extreme instances it is inappropriate to
have a R18 store located directly beside a school’s entrance, however the reality is
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that due to the tactical location of schools in New Zealand, having some SVR stores
located nearby is unavoidable; so any proximity restrictions should account for the
THE
area of most student foot traffic (i.e. entrances) rather than a top down distance from
the perimeter of a school grounds.
ACT
Recommendation:

Prior to making a decision to include proximity restrictions, a review should be carried
out to assess what this policy would achieve (assuming already approved SVR stores
UNDER
would not lose their licence as a result of this measure).
If a decision is taken to set proximity restrictions, it should set a “minimum criteria” to
provide prospective SVR stores some certainty when negotiating a lease. This
‘minimum criteria’ should be up front, transparent and specific, ‘Other considerations
specific to certain communities’ should not be part of the approval process.

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Document Outline

3A Memo to GM on Policy decision taken to exclude synthetic cooling agents from approved flavours for vaping products from SERPR 2023.pdf
3B Audit Trail - Memo to GM on Flavour Wheel.pdf