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Perth, Western Australia (Image by Steve Ellis - Twodogz photography)

E-cigarettes and e-liquids containing nicotine are banned across Australia. But in Perth, Western Australian, an e-cigarette online retailer, originally acquitted of the charge, was later found guilty on appeal for selling battery powered vaporizers. A landmark case that made the online business of e-cigarettes illegal in this part of the country.

The original case: Acquitted

Vincent Van Heerden from Perth was convicted by the Administrative Tribunal under the state’s Tobacco Products Control Act, which prohibits the sale of any food, toy or other product that is not a tobacco product but designed to resemble one.

The Supreme Court in June 2014 sentenced him for breaching tobacco control laws by selling e-cigarettes online through the website “Heavenly Vapours” and fined him $1,750.

Van Heerden is believed to be the first person to be found guilty for selling e-cigarettes in Australia but he was acquitted of the charge.

The Health Department that raided his home in 2011, decided to pursue him with legal action, considering that e-cigarettes were not proven safe and could encourage people to smoke, and appealed the original judgment.

Van Heerden, considering he had been made an example, expressed his intention to fight back.

Van Heerden “honestly and reasonably believed e-cigarettes were a healthy alternative to cigarettes”

The Administrative Appeals Tribunal noticed that Van Heerden set up a website to collect donations for his legal fight against the law and participated in media interviews. He further raised more than $100,000 through crowd fundings.

“It is clear you do not consider the sale of e-cigarettes should be prohibited,” said Justice Janine Pritchard. She recognized that Van Heerden was entitled to advocate for changes to the law but refused his request for a spent conviction order.

The court ruled that even e-cigarettes not containing nicotine breached the tobacco control act, which prohibits any “food, toy or other product” that looks like a cigarette or cigar.

“I know that my health has changed dramatically since using electronic cigarettes and I know the lives of dozens of people in real life that have been changed.” -V. Van Heerden
The Australian e-cigarette retailer was then ordered to pay $14,000 in court costs plus a fine of $1,750, and had 21 days to lodge his appeal.

Van Heerden considered appealing this sentence, which he did in July 2014, even though he admitted he was not confident an appeal would be successful but said he wanted to do so in order to keep the matter within the realms of public discussion.

Western Australia’s Court of Appeal: Dismissed

On March 10, 2016 Judge Michael Buss heard the appeal and dismissed it at Perth’s Supreme Court. This means that the online business around vaping products is still illegal in Western Australia.

“I think society has been done a massive disservice today. This was a technology that is saving lives all around the world.” -V. Van Heerden
Following the judgement van Heerden said he was shocked by the decision an would consider taking the matter to the High Court of Justice despite he would probably have to file for bankruptcy.

 

“I have to fight,” he said…