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$4.9m fine for online vaping product ads

A vaping vendor has been fined $4.9 million for illegally advertising nicotine vaping products online.

In July last year, the Therapeutic Goods Administration (TGA) started Federal Court proceedings against Vapor Kings Pty Ltd and its sole director, Amir Kandakji, over their advertising on their websites, vaporkings.com.au and vaporkings.co.uk.

Today Justice Abraham found the company and its director had contravened ss 42DLB(1) and 54B(3) of the Therapeutic Goods Act 1989 (Cth) through the unlawful advertising of Nicotine Vaping Products (NVPs) from at least 24 November 2021 to 15 June 2022.

The NVPs included “e-liquids” and disposable “e-cigarettes” containing the liquids. The products were not at any time entered into the Australian Register of Therapeutic Goods, and were not the subject of an exemption, approval or authority under the Act or regulations. Further, the advertisements referred to nicotine, when the references were not authorised or required by a government or authority.

Vapor Kings and Kandakji agreed to the $4.9 million fine, as well as:

  • an injunction that they be restrained from advertising therapeutic goods contrary to the Act for 10 years;
  • a fine of $100,000 for Kandakji, with 65 per cent suspended on the condition he adhere to the 10-year injunction and commit no further civil penalty offence against the Act for 10 years; and
  • an order to pay the TGA’s court costs fixed at $100,000 for Vapor Kings, and $10,000 for Kandakji.

In deciding the penalty, Justice Abraham considered factors including the serious nature of the offending, which involved numerous breaches for the Act; and the significant risk of harm arising from the use of NVPs.

She also pointed to the targeting of Australian customers and the representations that the products were able to be bought and delivered nationwide.

“These proceedings are a matter of public interest, and the circumstances of the contraventions call for marking of the Court’s disapproval of the conduct. Consequently, the declarations sought have significant utility. I am satisfied that it is in the interests of justice to make the declarations sought,” she said.

When it launched the proceedings, the TGA pointed out NVPs had been made prescription-only in October 2021.

“The changes to the regulation of nicotine vaping products were implemented to prevent young people from taking up nicotine vaping (and potentially smoking), and to protect consumers from toxic ingredients that nicotine vaping products may contain,” it said.

“Nicotine vaping products purchased unlawfully could be counterfeit or contain undeclared and hazardous active ingredients which can cause serious harm to users and may also not have the required child safety packaging.”

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