C. Import, promote, manufacture, sell, or possess for commercial purposes alternative smoking products

C. Import, promote, manufacture, sell, or possess for commercial purposes alternative smoking products

What are Alternative Smoking Products (ASPs) 

Alternative smoking products are defined and listed in Part 2, Schedule 7 of the Smoking (Public Health) Ordinance (Cap. 371) under 3 categories. 

• Category 1: a device (other than a waterpipe) used to imitate conventional smoking by generating aerosol from a non-tobacco/non-dangerous drug substance without direct ignition, including any of its designed components or accessories, and any compatible non-tobacco/non-dangerous drug substance packaged for use with it. 

• Category 2: a device (other than a waterpipe) used for smoking by generating aerosol from tobacco without direct ignition, including any of its designed components or accessories, and any tobacco packaged for use with it. 

• Category 3: specified plant material rolled up in any material, in the form that is capable of immediate use for imitating conventional smoking. 

These ASPs include smoking products such as vapes/ e-cigarettes, heat-not-burn tobacco and herbal cigarettes. 

Offences 

Under section 15DA of the Smoking (Public Health) Ordinance, no person may manufacture, sell or offer for sale, give to any person under 18 years of age, give to another person for the purposes of promotion, possess for commercial purposes, possess in a public place, alternative smoking products, including electronic smoking products, heated tobacco products and herbal cigarettes. 

It is also an offence under the Import and Export Ordinance (Cap. 60) to import alternative smoking products by way of parcels, cargoes, or bringing into Hong Kong by incoming travellers. 

Prohibition of the promotion or advertisement of alternative smoking products covers giving them away as gifts, prizes, or free samples especially to anyone under 18. In addition, distributing items meant for public display if they carry the name, brand, logo, or other clear marks of these products is also prohibited. 

Possession of alternative smoking products under the following circumstances are unlawful: for commercial purposes even in private, for example in a non-public, private storage, or in any public place smoking or carrying an activated smoking product in statutory non smoking areas, carrying any substance suitable for use with an alternative smoking product such as heat sticks, e-liquid capsules, or herbal cigarettes in a public place 

Use of alternative smoking products under the following circumstances are unlawful: smoking or carrying an activated alternative smoking product in statutory no smoking area, or in any public place. 

Alternative smoking products containing nicotine are classified as Part 1 poisons and possession of such can be prosecuted under illegal possession of Part 1 poison (sections 23 and 33 of the Pharmacy and Poisons Ordinance (Cap. 138)). 

Penalty 

Importing alternative smoking products carries a maximum penalty of $500,000 fine and imprisonment for 2 years on summary conviction, and a maximum penalty of $2,000,000 and imprisonment for 7 years on indictment. 

Manufacture, sale, possession for commercial purposes, or giving to another person for promotion, or giving to any person under the age of 18 carries a maximum penalty of $50,000 fine and imprisonment for 6 months. 

Possession of alternative smoking products in a public place can be punished by a fixed penalty of $3,000 if involving small quantities (i.e. no more than 5 units of capsules/5mL of substance or 100 units of heat sticks or 100 rolls of herbal cigarettes) for non-commercial purposes.  Possession of larger quantities is an aggravating factor and will be handled through prosecution rather than fixed penalty.  The maximum penalty on summary conviction is a fine of $50,000 and imprisonment for 6 months. 

Possession of alternative smoking products containing nicotine can be prosecuted for possession of Part 1 poison.  The maximum penalty for possession of Part 1 poison on summary conviction is a fine of $100,000 and imprisonment for 2 years.