133 Molesworth Street
PO Box 5013
Wellington 6140
New Zealand
T+64 4 496 2000
12 April 2024
Spencer Woodman
By email: [FYI request #25513 email]
Ref:
H2024035220
Tēnā koe Spencer
Response to your request for official information
Thank you for your request under the Official Information Act 1982 (the Act) to the Ministry of
Health | Manatū Hauora (the Ministry) on 25 January 2024 for information regarding vaping
regulations.
On 22 February 2024, the Ministry extended the due date for responding to your request
pursuant to section 15A(1)(a) of the Act, as the request necessitates a search through a large
quantity of information.
To avoid any delays in communicating a decision on your request, the Ministry provided you
with a partial response on 21 March 2024 to parts of your request, namely question 1(c) and
2(a)-(h).
The remainder of your request is responded to below:
“1. Who was the decision maker, and who or which company provided legal advice surrounding
the interpretation of 50mg nicotine strength that resulted the in Ministry of Health losing a court
case and costing the tax payers $249,267.50.
b. Who was the decision maker that made the call to refuse a meeting with the affected vape
retailer which would have saved the tax payers $249,267.50?
d. What is the total cost for this legal battle to the tax payer? Including compensation to the
other party.”
Cabinet is the decision maker for all government policies.
Legal advice for the Smokefree Environments and Regulated Products Act and its Regulations
came from several sources including but not limited to: Health Legal, Crown Law, and private
law firms.
Al government legislation and regulations are drafted by the Parliamentary Counsel Office who
may provide legal advice in relation to drafting matters.
Your questions mischaracterise the proceedings, and financial aspects of the case brought
against the Ministry. ALT New Zealand Ltd, VEC Ltd and Myriad Pharmaceuticals Ltd (together,
the applicants) brought proceedings against the Director-General of Health in March 2023
regarding the interpretation of clause 15 of schedule 5, of the Smokefree Environments and
Regulated Products Regulations 2021. At the time, clause 15 read “The strength of nicotine salt
in a vaping substance must not exceed 50 mg/mL”. At issue was whether clause 15 regulated
the strength of nicotine in nicotine salt (as the applicants contended) or of the nicotine salt itself.
The amount of $249,267.50 was paid to Crown Law by the Ministry between 27 March 2023
and 7 November 2023, for legal services rendered in relation to defending proceedings brought
against it by the applicants. This amount was not a payment for costs awarded by the courts, no
costs have been decided.
The Ministry accepted the ambiguity in clause 15 and conceded the point on statutory
interpretation. The Ministry took steps to clarify this ambiguity for stakeholders by making a
legislative amendment to clause 15. The Ministry, through counsel, notified the court of this
intention via Memorandum of Counsel on 23 June 2023. The focus of the proceedings then
changed to a substantive action for judicial review of the amended regulation and the lawfulness
of the amendment process. The high court found in favour of the Ministry’s amended regulation
on 21 December 2023.
You can read the full decision her
e https://www.courtsofnz.govt.nz/cases/alt-new-zealand-ltd-v-
attorney-general-
The applicants have appealed this decision, and this wil be heard before the Court of Appeal
when a date becomes available.
“3. It was previously communicated by the Ministry of Health that vape machines were required
to have removable batteries. However, on January 24, 2024, there was a shift in the
interpretation of the legislation, indicating that merely having removable battery packs was no
longer sufficient, and the batteries themselves must now be removable.
a. The specific details and reasoning behind the initial requirement for vape machines to have
removable batteries.”
The information you have requested is publicly available at the following links:
Removable batteries in vaping devices:
www.health.govt.nz/our-work/regulation-health-and-
disability-system/vaping-herbal-smoking-and-smokeless-tobacco-products-
regulation/information-manufacturers-and-importers-notifiers/removable-batteries-vaping-
devices
Cabinet and consultation material: Smokefree environments and the smoked tobacco regulatory
regime:
www.health.govt.nz/about-ministry/information-releases/release-ministerial-decision-making-
documents/cabinet-and-consultation-material-smokefree-environments-and-smoked-tobacco-
regulatory-regime
b. The reasons for the Ministry of Health's change in interpretation, specifically necessitating
the removal of the batteries themselves.
c. Any studies, assessments, or expert opinions considered in making this interpretation
adjustment.
d. Any consultations or feedback sought from industry experts, or the public regarding this
change.”
We understand these questions to be on the understanding that there has been a policy or
interpretation change by the Ministry on removable batteries between when the requirements
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were introduced and 24 January 2024. There hasn’t been a policy or interpretation change on
removable batteries, the Ministry has provided clear guidance to the sector on what meets the
definition of a removable battery under the regulations. We cannot supply the documents you’ve
requested in questions 3(b), 3(c), and 3(d), section 18(e) of the Act, as the information
requested does not exist.
“4. Please provide all relevant documentation, reports, or guidelines that outline the
responsibilities and roles of individuals or entities involved in the legislative process.”
On 5 and 11 March 2024, the Ministry asked you to clarify which legislative process this part of
your request is referring to.
As we have not received a response from you to date and the information requested is not
made with due particularity required by section 12, the Ministry is unable to respond to your
request confidently or comprehensively. However, we remain wil ing and engaged to respond
on any refined request you may wish to make.
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
Dr Andrew Old
Deputy Director-General
Public Health Agency | Te Pou Hauora Tūmatanui
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