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NitroBex

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My name is Vince and I need your help.

This is the story of HeavenlyVapours

A few years ago I started a company that sold electronic cigarettes. My goal was to start a small business and focus on high quality control, so vapers didn't have to take risks when buying their e-cigarettes / Personal Vapourisers (PV) as to whether they would work, smell funny, leak etc.

The business had been running for almost a year and was doing very well. Warranty rates were declining; we even found a manufacturer in Australia that could make the flavourings that users put in the juice at a very high quality, with a known list of ingredients and persistent quality. We were certainly heading in the right direction, bringing Australian quality control to what is ultimately a product predominately cheaply made (and without oversight) in China.

However, the powers that be did not approve. The "Health" Department and Cancer Council would rather see electronic cigarettes banned outright than have traditional cigarette smokers be free to choose.

We suddenly got raided by the Health Department.

No formal letter, no other contact. A discrete court order for search and seizure was obtained and they arrived at my house in 3 black SUV's. They searched through my house and proceeded to load all of the hardware I had into several black garbage bags.
The search and seizure went on for about an hour and half before they decided they had found and taken enough.

The whole process was pretty invasive and surreal.

They were confusing my humble business with some sort of Columbian drug cartel. The business ran openly, with the website listed on Google's front page, with clear packaging and marketing.

What law was I breaking? It must have been serious enough to warrant a surprise search and seizure by force.

They alleged at the time that I and my small business had breached section 106a of the Tobacco Products Control Act 2006.

See link below for description of 106a
TOBACCO PRODUCTS CONTROL ACT 2006 - SECT 106

Applicable penalty description below
TOBACCO PRODUCTS CONTROL ACT 2006 - SECT 115

Wait, what come again? The law passed to stop milk bars from selling FADS Fun Sticks, once known as FAGS and FADS, which were a brand of candy cigarette to be sold to children. Electronic cigarettes are for adults who want to consume nicotine responsibly without physically burning a roll of tobacco. This is an alternative to smoking for adults, not some toy to get new people addicted to traditional cigarettes.

How could I be breaching this law anyway?
"TOBACCO PRODUCTS CONTROL ACT 2006 - SECT 106

106 . Products resembling tobacco products etc. not to be sold

A person must not sell any food, toy or other product that is not a tobacco product but is "”

(a) designed to resemble a tobacco product or a package; or

(b) in packaging that is designed to resemble a tobacco product or a package.

Penalty: see section 115."

"Or other product". Oh, it's one of those "˜catch-all' pieces of legislation. Surely this discussion should have happened on a legislative level, instead of picking out one small business to take to court to settle this in common law?

Well it's off to court we go I guess.

The saga had been going on for two years before actually going to court. During this time there was incredible uncertainty regarding whether we could continue to trade. In the event it was found we had indeed breached section 106a then continuing to trade could compound the penalty we would face (first offense $10,000 subsequent offences $20,000).

During this time an array of competing companies sprung up selling the exact same products and a range of others through various mediums - websites, retail stalls at markets, shopping centres etc and none of these companies to my knowledge were ever raided or had their products seized. It was hard to understand, here we were a small business trying to do something good for the community. Trying to help people move away from an expensive health destroying habit and the "Health" Department decides to single us out. We had poured all of our savings into the business. At the time of the raid we had just purchased around $5000 of stock paid for - not with profits but our own money. All of this was lost. In the ensuing period of time we had to find another $11,000 to pay for lawyers to represent us and form a defence.

On September 11 2013 almost 2 years later we finally had our day in court. The Learned Magistrate J Hawkins reserved her decision to review and weigh the merits of the presented arguments for the defence and prosecution.

On the 22 October 2013 the written verdict was presented. The summary of which was that HeavenlyVapours was acquitted of the charges.

At this point we breathed a sigh of relief and re-created our website and began to operate again believing the matter to be at a close.

How wrong we were.

The "Health" Department a few weeks later lodged an appeal to the Supreme Court. We again got in touch with our current lawyer and asked that he represent us in the court of appeals. We now had to pay another $9,000 in legal costs for this representation (legal costs around $20,000 at this point).

We appeared in the Supreme Court and we and the prosecution made our various arguments. The Judge J Pritchard adjourned the matter for deliberation.

On the 10 of April 2014 we were summoned to receive the judgement.

Judge Prichard found in favour of the "Health" Department and in her decision expanded her conclusion to determine that in effect any product E-Cig or otherwise that involves a hand to mouth action and results in the expulsion of vapour does in fact resemble a tobacco product and there for falls under section 106a of the Tobacco Products Control Act of 2006.


The prosecution at this time sought that I pay their legal costs, a little over $13,000.
Total legal costs now around $33,000. That figure does not include the penalty amount that has yet to be determined but will likely be another $10,000 based on the Acts prescribed penalty for a first offense.

Total legal cost is now almost $45,000 for something no one has ever been charged or prosecuted for before.

Even the Learned Magistrate J Hawkins did not interpret my business as having breached the Act.

Supreme Court Verdict found here: Verdict

What does this mean?

Well in short it means any model of E-Cig irrespective of its design is now illegal by case law precedent to be sold from within WA. One can only imagine that the other states may now try to follow suit.

If this goes uncontested fewer people will be exposed E-cigs/PVs. This lack of awareness means more people are going to be trapped consuming traditional cigarettes that are known to be deadly and impose a cost on all those around them as they either never get the opportunity to hear about E-cigs/PV's or the obstacle to getting them results in the same outcome - that they remain tobacco users.

I feel I have a moral obligation to fight, it's why I have come this far. When all this started my friends and family all said I couldn't afford to fight this and to just give up. I can't do that, it's not me. If I had given up it would have been the first nail in the industry's coffin. I felt based on all of my customer's feedback that I was doing a good thing, that I was changing lives and making a genuine positive difference to so many people. How could I not fight when I didn't believe I had done anything wrong? When giving up would be letting so many others down.

I didn't give up, I borrowed money and buried myself in debt believing naively that surely common sense and general good will would prevail. I was initially rewarded for my resolve and was acquitted in the Joondalup Magistrates Court. I believed I had done what needed to be done and we could all move on.

Unfortunately I lost on appeal and while my will and conviction to fight on is as strong as ever I simply can't do it alone. This process has financially destroyed me but if we can band together now we can still win this thing.

Maybe I'm crazy to think this can work but honestly it's soul destroying to not even try.

Common sense and dozens of studies demonstrate that Ejuice consumed through E-Cigs/PV's do not contain the many thousands of deadly chemicals traditional tobacco cigarettes do. We deserve the right to choose an alternative.

We need help

1. We need funds to cover our existing and future legal costs. We need to form a formidable defence team to appeal this in a higher court, where a more philosophical argument can be made.
2. We need media exposure
3. We need to promote discussion in the public discourse
4. We must pressure our elected officials to enact legislation to specifically address and allow this new technology

Please everyone join me to help end this madness!

Kind regards,

Vincent van Heerden

For Further Information See the W.A. Appeal Section of

www.vapingaustralia.net.au
 
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m3rma1d

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m3rma1d

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I know we are all fighting a fight right now globally ( and i would like to add I've also been active in your causes too from across the pond as i believe we are all fighting as a community globally as opposed to an us and them situation) but id like to point out this is a but different to "just an issue from across the pond"


This is a legal precedent that if left standing and un-appealed will undoubtedly not just spread across Australia but once AU becomes a legally precedent-ed, vape hardware, free zone... the western civilized world will look at how they can apply it in your country.

This is not just the ANTZ pushing for a ban, this is setting the legal precedent ... its very dangerous territory.


If you haven't already, and wether you agree with this or not, take a listen to it on Click Bang before you completely set your opinion in concrete Covers both topics, Australia's issue and the NY issue

https://soundcloud.com/soundcloud.com%2Fvp-live%2Fnyc-wants-to-ban-all-e-liquid-flavors-australia-wants-to-ban-all-e-cigs-and-bankrupt-vince
#FiveForVince

#OurRightToChoose

http://www.gofundme.com/Ecigs-Our-Right-to-Choose

https://www.change.org/p/wa-health-minister-please-legalise-pvs
 

Professor Xavier

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UPS has no policy concerning vaping (electronic cigarettes) or no policy has been produces to me, despite my multiple request. I was written up for using my vaping(electronic cigarette) in the UPS hub recently, something I have done for years prior. When I asked where I was to go to use my device I was told outside in the break area with the tobacco smokers. When I protested, saying I am not a smoker and should not have my health put at risk by having to breathe in 2nd hand smoke I was told by my supervisor "I don't know what to tell you". I have talk to safety department (who has a member that vapes upstairs in the office), Human Resources and several high level management member all who are unaware of any policy concerning the use of electronic cigarettes. My right are being violated please help.
 

EthelMaltol

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Great news, I wish Casaa would have sent in a few more bucks, but they do have a lot on their plates. Slowly but surely, still a ways off, let's all donate, even if it is only $5.
 
That's an amazing donation!! And great to see they are backing the cause!

And every $5 donation makes a significant donation guys n gals, to put into perspective.. a large portion of the donations made over the past 3-4 weeks, that added up to over 20k, we're all $5 -$10 donations.

It all counts! :D
 

HFXVapes

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How's Vince's trial going anyway? I listened to most of his interview from last month but I haven't heard or been able to find any news recently on it.
 

EthelMaltol

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I believe it is in limbo right now, he does still need mo money! And, @JoJoz, I didn't mean to sound like I am bashing casaa, it is fabulous that they are on board, this is a big deal! :)
 

HFXVapes

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I gave 5, unfortunately I out of a job right now or I would of helped a lot more! This industry can change the world for the better, we can't allow FDA/Big Tobacco/Pussy Government to ruin it!!!
 
A PLEA TO ECIG VENDORS
To all vendors local and international that wish to support the rights of their current and future customers we need a little help.

As many already know I am currently trying to raise the funds required to try to overturn a legal ruling in Australia that has criminalized the sale of ALL Ecig/PV models in WA. If this is not fought it is likely to be the beginning of the country wide ban of these incredible Tobacco Harm Reduction devices.

A significant percentage of the Australian market is currently being serviced by international, predominately US based vendors. A few vendors in the US have already shown support for their Australian customers. Unfortunately that number can be counted on one hand.

As vendors you are in a unique position to help. We are currently organising a large auction to raise funds for this cause and we need hardware and Juice donations to make it happen.

If you can spare any hardware or Juice for the auction it can make an enormous difference and may help you to secure some new customers that wish to express gratitude to your company for showing that you care, not just about their patronage but also their rights to free choice and harm reduction.

A small hardware and or Juice donation can secure a LARGE outcome at an auction so if you are a vendor (particularly in the US) and are in a position to help, PLEASE DO. I and millions of others will thank you.
This could be a great opportunity to let Australians and vapers from all over the world that don’t yet know about your company to explore your products.

All vendors that donate hardware will be thanked on the gofundme page which will be seen by over 1000 unique vapers.

To everyone reading this PLEASE SHARE this to your favorite vendors and fellow vapers.

Together and united we can make a difference

The details of the Auction (date location etc) will be advised over the next couple of weeks after we have secured the auction items.

Cheers Vince
http://www.gofundme.com/ecigs-our-right-to-choose

If you can donate anything please contact me by facebook or gofundme
you can also email to the following address's of the auction organisers,

[email protected] and [email protected]
 

Pauly Walnuts

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Vapers, vendors, and liquid makers beware, this is a downhill slide towards a complete vaping industry take over. Once the FDA restrictions go into effect, every single vape shop in the country will be at risk. Heck, when they can steal your property, fine you, and tax everyone, all at once, it sets the stage for myriad rights violations and ensures that peoples lives will be ruined in the process.

This is their end goal, to tax and regulate things that were once free market. Regardless of the consumer driven demands that make a free market work for everyone, there is one entity it obviously does not help enough. Since they will do anything to line their own pockets, our rights as human beings are null and void.

Just wait until vape shop workers start getting murdered for holding a mod when the swat team rushes in. Its inevitable and its disgusting to realize this may be around the corner.

When huge profits can be made from destroying honest folks, people are turned into numbers, and no one cares about the suffering of a number.
 

William Hucke

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this sounds just like FDA doing raids and busts on home done / small milk sellers
 

outwest

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Just read this thread. Highly disturbing! Glad to see the gofundme page is doing well. Donation made. Like one of the comments on the gofundme page mentioned, if ecigs are tobacco-like because of producing a vapor, so are vicks vaporizers. They use glycols and emit a vapor that is intended to be inhaled. Best of luck with the case!
 

SomeTexan

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This sucks. But, what do you expect in Australia? When the government took away your right to own firearms, you lost all your rights. Armed people are citizens, unarmed people are slaves. If you give up one right, you might as well give them all up.
 

ggvaper

Member For 4 Years
http://www.gofundme.com/Ecigs-Our-Right-to-Choose

My name is Vince and I need your help.

This is the story of HeavenlyVapours

A few years ago I started a company that sold electronic cigarettes. My goal was to start a small business and focus on high quality control, so vapers didn't have to take risks when buying their e-cigarettes / Personal Vapourisers (PV) as to whether they would work, smell funny, leak etc.

The business had been running for almost a year and was doing very well. Warranty rates were declining; we even found a manufacturer in Australia that could make the flavourings that users put in the juice at a very high quality, with a known list of ingredients and persistent quality. We were certainly heading in the right direction, bringing Australian quality control to what is ultimately a product predominately cheaply made (and without oversight) in China.

However, the powers that be did not approve. The "Health" Department and Cancer Council would rather see electronic cigarettes banned outright than have traditional cigarette smokers be free to choose.

We suddenly got raided by the Health Department.

No formal letter, no other contact. A discrete court order for search and seizure was obtained and they arrived at my house in 3 black SUV's. They searched through my house and proceeded to load all of the hardware I had into several black garbage bags.
The search and seizure went on for about an hour and half before they decided they had found and taken enough.

The whole process was pretty invasive and surreal.

They were confusing my humble business with some sort of Columbian drug cartel. The business ran openly, with the website listed on Google's front page, with clear packaging and marketing.

What law was I breaking? It must have been serious enough to warrant a surprise search and seizure by force.

They alleged at the time that I and my small business had breached section 106a of the Tobacco Products Control Act 2006.

See link below for description of 106a
TOBACCO PRODUCTS CONTROL ACT 2006 - SECT 106

Applicable penalty description below
TOBACCO PRODUCTS CONTROL ACT 2006 - SECT 115

Wait, what come again? The law passed to stop milk bars from selling FADS Fun Sticks, once known as FAGS and FADS, which were a brand of candy cigarette to be sold to children. Electronic cigarettes are for adults who want to consume nicotine responsibly without physically burning a roll of tobacco. This is an alternative to smoking for adults, not some toy to get new people addicted to traditional cigarettes.

How could I be breaching this law anyway?
"TOBACCO PRODUCTS CONTROL ACT 2006 - SECT 106

106 . Products resembling tobacco products etc. not to be sold

A person must not sell any food, toy or other product that is not a tobacco product but is "”

(a) designed to resemble a tobacco product or a package; or

(b) in packaging that is designed to resemble a tobacco product or a package.

Penalty: see section 115."

"Or other product". Oh, it's one of those "˜catch-all' pieces of legislation. Surely this discussion should have happened on a legislative level, instead of picking out one small business to take to court to settle this in common law?

Well it's off to court we go I guess.

The saga had been going on for two years before actually going to court. During this time there was incredible uncertainty regarding whether we could continue to trade. In the event it was found we had indeed breached section 106a then continuing to trade could compound the penalty we would face (first offense $10,000 subsequent offences $20,000).

During this time an array of competing companies sprung up selling the exact same products and a range of others through various mediums - websites, retail stalls at markets, shopping centres etc and none of these companies to my knowledge were ever raided or had their products seized. It was hard to understand, here we were a small business trying to do something good for the community. Trying to help people move away from an expensive health destroying habit and the "Health" Department decides to single us out. We had poured all of our savings into the business. At the time of the raid we had just purchased around $5000 of stock paid for - not with profits but our own money. All of this was lost. In the ensuing period of time we had to find another $11,000 to pay for lawyers to represent us and form a defence.

On September 11 2013 almost 2 years later we finally had our day in court. The Learned Magistrate J Hawkins reserved her decision to review and weigh the merits of the presented arguments for the defence and prosecution.

On the 22 October 2013 the written verdict was presented. The summary of which was that HeavenlyVapours was acquitted of the charges.

At this point we breathed a sigh of relief and re-created our website and began to operate again believing the matter to be at a close.

How wrong we were.

The "Health" Department a few weeks later lodged an appeal to the Supreme Court. We again got in touch with our current lawyer and asked that he represent us in the court of appeals. We now had to pay another $9,000 in legal costs for this representation (legal costs around $20,000 at this point).

We appeared in the Supreme Court and we and the prosecution made our various arguments. The Judge J Pritchard adjourned the matter for deliberation.

On the 10 of April 2014 we were summoned to receive the judgement.

Judge Prichard found in favour of the "Health" Department and in her decision expanded her conclusion to determine that in effect any product E-Cig or otherwise that involves a hand to mouth action and results in the expulsion of vapour does in fact resemble a tobacco product and there for falls under section 106a of the Tobacco Products Control Act of 2006.


The prosecution at this time sought that I pay their legal costs, a little over $13,000.
Total legal costs now around $33,000. That figure does not include the penalty amount that has yet to be determined but will likely be another $10,000 based on the Acts prescribed penalty for a first offense.

Total legal cost is now almost $45,000 for something no one has ever been charged or prosecuted for before.

Even the Learned Magistrate J Hawkins did not interpret my business as having breached the Act.

Supreme Court Verdict found here: Verdict

What does this mean?

Well in short it means any model of E-Cig irrespective of its design is now illegal by case law precedent to be sold from within WA. One can only imagine that the other states may now try to follow suit.

If this goes uncontested fewer people will be exposed E-cigs/PVs. This lack of awareness means more people are going to be trapped consuming traditional cigarettes that are known to be deadly and impose a cost on all those around them as they either never get the opportunity to hear about E-cigs/PV's or the obstacle to getting them results in the same outcome - that they remain tobacco users.

I feel I have a moral obligation to fight, it's why I have come this far. When all this started my friends and family all said I couldn't afford to fight this and to just give up. I can't do that, it's not me. If I had given up it would have been the first nail in the industry's coffin. I felt based on all of my customer's feedback that I was doing a good thing, that I was changing lives and making a genuine positive difference to so many people. How could I not fight when I didn't believe I had done anything wrong? When giving up would be letting so many others down.

I didn't give up, I borrowed money and buried myself in debt believing naively that surely common sense and general good will would prevail. I was initially rewarded for my resolve and was acquitted in the Joondalup Magistrates Court. I believed I had done what needed to be done and we could all move on.

Unfortunately I lost on appeal and while my will and conviction to fight on is as strong as ever I simply can't do it alone. This process has financially destroyed me but if we can band together now we can still win this thing.

Maybe I'm crazy to think this can work but honestly it's soul destroying to not even try.

Common sense and dozens of studies demonstrate that Ejuice consumed through E-Cigs/PV's do not contain the many thousands of deadly chemicals traditional tobacco cigarettes do. We deserve the right to choose an alternative.

We need help

1. We need funds to cover our existing and future legal costs. We need to form a formidable defence team to appeal this in a higher court, where a more philosophical argument can be made.
2. We need media exposure
3. We need to promote discussion in the public discourse
4. We must pressure our elected officials to enact legislation to specifically address and allow this new technology

Please everyone join me to help end this madness!

Kind regards,

Vincent van Heerden

For Further Information See the W.A. Appeal Section of

www.vapingaustralia.net.au
 

wert

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My guess as an Aussie... Your business was fresh and your record (criminal) clean... Perfect target to make a statement! Man fuck australia when it comes to shit like this. Idiosyncratic stupidity, but, we have seen measures like this taken in the past regarding things of chemistry. It can be easily translated into scare shit witch sells in the papers because most average joes just loath being scared and thrive on having a voice against!

Fuckers!
 

ttatlanta

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"…or otherwise that involves a hand to mouth action and results in the expulsion of vapour does in fact resemble a tobacco product and there for falls under section 106a of the Tobacco Products Control Act of 2006"

Asthma inhalers, eh?…
 
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