British American Tobacco is threatening legal action against the Government over a review of New Zealand’s vaping products, which could result in more than two thousand substances being taken off shelves.

That’s according to a letter, seen by Newstalk ZB, addressed to newly appointed director-general of health Dr Diana Sarfarti.

It shows New Zealand law firm Bell Gully has advised the Ministry of Health that it would appear for BAT (British American Tobacco), in the case of a legal challenge.

“We will appear on behalf of BATNZ in the event judicial review or declaratory judgment proceedings become appropriate or necessary”, it reads.

“However, BATNZ remain hopeful formal legal proceedings and other appeal processes should not be necessary.”

It comes as thousands of vaping substances face an uncertain future in New Zealand, including many of BAT’s products, following a push for suppliers and manufacturers to prove their products are complying with the law.

Vapes can legally have up to 20mg/mL for freebase nicotine or 50mg/mL for nicotine salts, but there are cases where the latter has been interpreted as 50 milligrams of nicotine.

According to the Ministry of Health, “some retailers, manufacturers or importers may have misinterpreted the regulations limiting nicotine salt levels and provided misleading information when notifying their products with the Authority.”

In October, the Vaping Regulatory Authority wrote to the industry’s companies, urgently instructing them to provide safety details about their substances.

A few days later, it launched a review of all 8,083 vaping products in New Zealand.

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Newstalk ZB understands 466 products have so far been voluntarily removed from shelves across the country.

But when the deadline for information passed at 12pm on Friday, December 9, questions still remained over the ingredients of 1,683 substances.

It’s understood the deadline had already been pushed back by a week, after vaping companies heavily advocated for an extension.

The Vaping Regulatory Authority is now reviewing the details of those products, and should they fail to meet legal requirements, it’s understood a notice of suspension could be issued.

Associate Health Minister Ayesha Verrall has confirmed to Newstalk ZB that if “information isn’t sufficient, further action may be taken.”

“Those vaping need to be assured vape products don’t contain excessive levels of nicotine and the level stated on packaging is accurate”, she said in a statement.

A spokesperson for British American Tobacco New Zealand said the company “supplied all requested information to the Vaping Regulatory Authority last Friday.”

“We will engage constructively with the VRA if further action is required, however remain disappointed the VRA has refused all requests from BATNZ to meet to discuss what we continue to assert is a reinterpretation of the regulations”, they said. C

A recent study by the Institute of Environmental Science and Research (ESR) revealed nicotine levels in New Zealand vaping liquid products could be significantly different from what’s promised on the label.

In a letter to the Ministry of Health, dated November 25, 2022, Bell Gully told Safarti that BAT wanted an urgent meeting with the director-general of health herself, or the Vaping Regulatory Authority, to discuss the regulations around nicotine salts, and ask for an extension to the review due to the “large volume of technical information” requested.

It also referred to another letter, sent to Verrall on November 23, which shows 10 industry signatories outlining a case against the product review, claiming the Vaping Regulatory Authority is “asserting a new interpretation of what constitutes nicotine salt”.

The Vaping Regulatory Authority responded to the letters on December 6, saying at this stage, it “does not consider a meeting on the matters raised to be strictly necessary for effective regulation.”

The potential legal challenge comes as the Government shepherds through the Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Bill, which is expected to pass its third and final reading in Parliament tonight.

The legislation would stop people aged 14 and under from ever legally buying tobacco, and limit the number of retailers able to sell smoked tobacco products. It is part of the country’s aim to reduce smoking overall to 5 per cent of the population by 2025.

Tobacco use kills about 4500 people every year, and causes one in four cancer deaths.