Tobacco and E-cigarettes

Tobacco and E-cigarettes

From 1 July 2024, vapes (also known as e-cigarettes) sold across Australia, whether or not they contain nicotine, may only be sold in a pharmacy [Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Act 2024 (Cth)].

Between 1 July and 30 September 2024, a prescription from a doctor or nurse practitioner was required to purchase a vape containing nicotine in Australia. Since 1 October 2024, people 18 years and older no longer need a prescription to buy a nicotine vape.

The Tobacco and E-Cigarette Products Act 1997 (SA) otherwise regulates tobacco and vape products generally in South Australia.

It is an offence under the Tobacco and E-Cigarette Products Act 1997 (SA) to sell or supply a vape product, or possess a vape product for sale, to anyone, unless authorised under any other Act or law. If a person possesses a prescribed amount of vapes, it will be presumed that their possession is for the purposes of sale [s 39B(3)]. The prescribed quantity is 2 or more vapes, 60 mL or more of liquid and 4 or more vape products [Tobacco and E-Cigarette Products Regulations 2019 (SA) reg 4A].

In South Australia, it is also an offence to sell or supply a tobacco or vape product to a person under 18 years, even if they have a prescription [Tobacco and E-Cigarette Products Act 1997 (SA) s 39E(5a)]. Prior to 28 November 2024 it was possible for a person under 18 years to obtain a prescription to be sold or supplied a vape pursuant to an exemption which has now been repealed. However, the offence does not apply to the sale or supply of a vape by a pharmacist until 1 February 2025 [Tobacco and E-Cigarette Products Regulations 2019 (SA) sch 1].

In order to counter the illicit trade of tobacco there are prohibitions on:

the sale of tobacco products that do not comply with prescribed packaging requirements under Commonwealth legislation [s 31];
the sale or supply of tobacco products that are prohibited under the Customs Act 1901 (Cth) or excisable goods under the Excise Act 1901 (Cth) for which duty has not been paid [s 32].

It is an offence for a person to have, without lawful excuse, possession of prescribed tobacco products for the purposes of sale [s 33]. Prescribed tobacco products include those prohibited under the Customs Act 1901 (Cth) or those that do not comply with the prescribed packaging requirements. If a person is in possession of a prescribed quantity of prescribed tobacco products, it is presumed, in the absence of proof to the contrary, that the person has possession for the purposes of sale.

The maximum penalty for the above offences is a fine of $750,000 for a body corporate or $350,000 for an individual (first offence).

Consumer and Business Services have more information about the

Smoking or vaping in a public place

Under the Tobacco and E-Cigarette Products Act 1997 (SA) and the Tobacco and E-Cigarette Products Regulations 2019 (SA), it is an offence to smoke cigarettes or vape in:

enclosed public places, workplaces, and shared areas [s 46]
a car if there is someone younger than 16 years in the vehicle [s 48]
within 5 metres of covered public transport areas such as bus stops, tram stops, railways stations, taxi ranks and airports [s 49]
within 10 metres of a public playground [s 50]
outdoor dining areas [reg 15]
certain specified public areas (such as Moseley Square Glenelg and the Parade Norwood) [see Tobacco and E-Cigarette Products Regulations 2019 (SA) for the full list].

From 1 March 2024, pursuant to the Tobacco and E-Cigarette Products Regulations 2019 (SA), it is also an offence to smoke or vape in the public areas of the following locations:

within premises at which early childhood services are provided and within 10 metres of their boundaries [reg 17]
within education and children’s services facilities and within 10 metres of their boundaries [reg 18]
within public and private hospitals and public health facilities and within 10 metres of their boundaries [reg 19]
at and within 10 metres of entrances to enclosed public places, workplaces or shared areas (such as government buildings and shopping centres) [reg 21]
in all public areas within a major event venue (within the meaning of the Major Events Act 2013 (SA)) [reg 22]
at outdoor swimming facilities [reg 23(1)(a)]
at or within 5 metres of a jetty [reg 23(1)(b)]
on a beach between the red and yellow patrol flags and within 50 metres of the flags [reg 23(1)(c)]
at and within 10 metres of a sporting venue during an organised underage sporting event or training session [reg 24].

A ban on smoking or vaping within the public areas of residential aged care facilities and within 10 metres of their boundaries will commence operation on 7 December 2026 [see reg 20 and Tobacco and E-Cigarette Products (Smoking Bans—Residential Aged Care Facility) Amendment Regulations 2024].

If caught smoking or vaping in a smoke-free or vape-free public area, the police may:

give an informal caution
issue an expiation fee (fine) on the spot, or
charge the person who will have to go to court and pay a fine.

It is also an offence for the occupier of a smoke-free and vape-free public area to display insufficient signage indicating the ban on smoking and vaping [s 52(4)].

From 28 November 2024, the penalties range from expiation fees of $315 to $630, to maximum fines of $5,000 in the case of an individual and $10,000 in the case of a body corporate. Refer to CBS's Tobacco and E-Cigarette Products Act 1997 Changes to Maximum Penalties and Expiation Fees – 28 November 2024 (PDF, 370 KB).

For more information about smoking and vaping in a public place, visit clearingtheair.sa.gov.au.

Tobacco and E-cigarettes : Last Revised: Tue Dec 3rd 2024
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.

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