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Sales of electronic cigarettes are now banned in Western Australia under a landmark legal case which could see the habit-kicking devices outlawed across Australia.

In an action against electronic cigarette seller HeavenlyVapours, the Supreme Court ruled the business sold a product designed to resemble a cigarette which was in breach of the Tobacco Products Control Act 2006 (WA).

The court found that e-cigarettes look like a cigarette, are shaped like a cigarette and the steam or vapour looks like smoke, and therefore are in breach of the law.

The case has been going since 2011 when the WA Health Department arrived at the home of Vincent Van Heerden, which he was using to start his small business HeavenlyVapours, with a search warrant and three black SUVs.

Nine electronic cigarette atomisers and 60 packages of electronic cigarettes were seized by The Health Department

Later the charges were rejected in the Magistrates Court but the Health Department successfully appealed to the Supreme Court.

The result is that anyone in Western Australia over the age of 18 can buy a packet of cigarettes and take the nicotine and chemicals straight into their lungs. But they now can’t buy a battery-powered electronic cigarette which uses a purer form of nicotine, turned into vapour, and is a tool for quitting smoking.

Van Heerden is due to be sentenced in the next two weeks. He has started a crowd fund to finance continuing action to free electronic cigarettes from legal constraints. So far, he’s raised $19,600 of a $50,000 target.

“We can and will defend our right to make informed choices and to choose, where possible, a less harmful alternative,” Van Heerden says.

He says the court decision now means any model of e-cigarette is illegal by case law precedent.

“One can only imagine that the other states may now try to follow suit,” he says.

Roger Magnusson, Professor of Health Law and Governance at the University of Sydney, says the WA Supreme Court Judgement has definite implications for e-cigarette retailers in other states.

Tobacco control laws in other mainland states including NSW, Queensland and South Australia all contain similar provisions which create an offence for selling or which permit the banning (Victoria) products which resemble a tobacco product.

In Tasmania and the ACT, the prohibition on sale of products which resemble a smoking or tobacco product applies only to toys or confectionery. In the Northern Territory, the prohibition on sale of products resembling tobacco products only applies if the product is designed or marketed for by children.

Professor Magnusson says e-cigarette companies in Australia are either engaged in “an act of bravery, or are very much hoping the Hawkins case will be overturned on appeal”.

There are no shortages of e-cigarette vendors in Australia, In Sydney, Evo Vaporizer retails from Westfield Shopping Centre in Chatswood and offers a premium kit online for $200.

Professor Magnusson says it’s breathlessly naïve to assume e-cigarettes will function only or mainly as stop-smoking devices.

“US research suggests these products are a gateway to smoking as often as a gateway from smoking,” he says.

“If they are such a great quit smoking device, they might nevertheless be made available to smokers on prescription. That would give smokers an alternative option, while minimising the creation of a new market for recreational nicotine that may well lead to smoking addiction for many of those new initiates, a great many of whom will be adolescents and young people.

“The fact that e-cigarettes are supposed to be cool, and “e-cigarettes makes smoking cool again”, reinforces the public health benefits of ensuring these products do not become ubiquitous.”

Nicotine is Schedule 2 drug in Australia which means it can only be sold through a pharmacies. Many Australians order nicotine cartridges for e-cigarettes online from New Zealand. Until now, the electronic cigarette devices themselves have been freely available sale in Australia.

A New Zealand study in the medical journal Lancet found electronic cigarettes are modestly effective in helping people quit cigarette smoking.

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