E-cigarette companies face rising regulation

Matthew Rimmer
4 min readMay 29, 2023

QUT Media

29 May 2023

E-cigarette Companies Seek IP Protections in Face of Rising Regulation

A sharp rise in intellectual property applications regarding e-cigarettes indicates high investment and speculation in new technology related to them, says QUT Professor of Intellectual Property and Innovation Matthew Rimmer.

  • Queensland inquiry into Vaping and Reducing Rates of E-Cigarette use
  • Submission to inquiry looks at other countries’ response to rising use of e-cigarettes and vape products
  • The US well ahead in litigation of e-cigarette companies with massive settlements in many states
  • Britain and New Zealand considering stronger regulation

In a submission to the Queensland Government’s inquiry on Vaping and Reducing Rates of e-cigarette Use in Queensland, Professor Rimmer addressed the inquiry’s request for comment on “jurisdiction analysis of other e-cigarette use inquiries, legislative frameworks, policies and preventative activities”.

“Big Tobacco and e-cigarette companies are seeking to develop patents, trademarks and other forms of intellectual property in this field,” Professor Rimmer, from the QUT Australian Health Law Research Centre, said.

“Some jurisdictions such as India have been reluctant to grant intellectual property rights in this area because of concerns that e-cigarettes lack utility and social benefits.”

Professor Rimmer’s submission supports the Australian Government’s proposals for new regulations including: border controls on non-prescription vapes; minimum quality standards for vapes; restrictions on flavours, colours, and other ingredients; pharmaceutical-like plain packaging; reduction of nicotine concentrations and volumes; and a ban on all single use, disposable vapes, with heightened enforcement.

“Vapes containing nicotine are illegal in Queensland, unless on prescription, and is being enforced — recently a convenience store was ordered to pay $35,000 plus court costs for possessing and selling nicotine-containing vapes.”

Professor Rimmer said Australian policymakers should note the massive litigation in the United States’ courts against e-cigarette company Juul by the states, school districts, Indigenous communities, and others that have resulted in billions of dollars in settlements.

“US litigation has extensively documented the adverse impacts of e-cigarettes upon consumer rights, public health, education, children’s rights, and Indigenous rights,” he said.

“Australian policymakers ought to take note of further legislative moves by the Biden Administration and the US Congress and the US Food and Drug Administration and the Federal Trade Commission.

“Juul has been found in numerous US jurisdictions to have deliberately designed the product, its flavours, and chemical composition to appeal to young people with no regard for public health.

“According to Reuters, Juul has settled with 45 states for more than $1B and is facing lawsuits and investigations in Minnesota, Florida, Michigan, Maine and Alaska.

“Apart from state-brought litigation, Reuters reported Juul had agreed to pay $1.7B to local governments and individual consumers.

“In addition, school districts, First Nations, and federal authorities the FDA and Federal Trade Commission have ongoing involvement in curbing or stopping e-cigarette use on grounds of deceptive marketing to minors and tobacco companies’ monopolistic practices.”

Professor Rimmer said Britain and New Zealand had not had such a litigious approach to regulation of e-cigarettes and vapes.

“This could be partly due to the hope in each country that e-cigarettes could help people to cease smoking tobacco,” he said.

“In the UK, the Local Government Association, chief medical officer and Action on Smoking and Health (ASH) have called for higher taxes and tighter regulation of marketing of vape products, but it is the Advertising Standards Authority which has brought several actions against e-cigarette companies.”

Professor Rimmer said New Zealand had a prohibition against e-cigarettes and vape sales to minors and on free, discounted or bundled distribution and supply as well as flavours and colourings restrictions.

Both countries are concerned also about the environmental effects in the making and disposal of e-cigarettes and vape products.

Professor Rimmer said the World Health Organization was ‘underwhelmed’ about the efficacy of e-cigarettes in tobacco cessation.

“WHO has warned about e-cigarette and tobacco companies making false and misleading health and therapeutic claims about their products and about their environmental impacts ‘from the mining of materials for batteries to metal and plastic waste leaching into soil and water’.

“The WHO supports bans or, at the very least, tight regulations on electronic nicotine delivery systems.”

Rimmer, Matthew (2023) A Submission on Vaping and Reducing Rates of E-Cigarette Use in Queensland. Health and Environment Committee, the Queensland Parliament. https://eprints.qut.edu.au/239457/

Health and Environment Committee, Vaping — An Inquiry into Reducing Rates of E-Cigarette Use in Queensland, Queensland Parliament, 2023 https://www.parliament.qld.gov.au/Work-of-Committees/Committees/Committee-Details?cid=169&id=4242

Press Release

Niki Widdowson, ‘E-cigarette Companies Seek IP Protections in Face of Rising Regulation’, QUT Media, 29 May 2023, https://www.qut.edu.au/news?id=187394 See also Queensland Government Press Release on Vaping Inquiry, https://statements.qld.gov.au/statements/97806

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Matthew Rimmer

Professor of Intellectual Property and Innovation Law, QUT. #Copyright #Patent #Trademark #plainpacks #Access2meds #SDGs #Climate #IndigenousIP #trade #TPP