Appeal against High Court judgment dismissing judicial review challenge to amendments to Smokefree Environment and Regulated Products Regulations 2021 – common law duty of consultation?  – duty to consult to a certain standard? – was the Ministry’s advice to Cabinet sufficient?

ALT New Zealand Ltd v Attorney-General [2025] NZCA 344

ALT New Zealand Ltd, Vec Ltd and Myriad Pharmaceuticals Ltd (together, ALT) are related companies which claim to be the “primary players” in New Zealand’s vaping industry. 

The regulation of vaping devices is governed by the Smokefree Environments and Regulated Products Act 1990 and its regulations. Non-compliance with regulations is an offence. The Smokefree Environments and Regulated Products Regulations 2021 prescribed product safety requirements for vaping devices. One of the issues addressed was maximum nicotine strength. Clause 15 of schedule five provided that the strength of nicotine salt in a vaping substance must not exceed 50 mg/mL.  

Nicotine salt compounds in vaping devices are formed from freebase nicotine and an acid. It was not clear whether the 50 mg/mL limit in the 2021 regulations applied to the total quantity of nicotine salt compound or only the freebase nicotine.