Online tobacco age verification laws and penalties: Australia

Search the Public Health (Tobacco and Other Products) Act 2023 for a minimum age and you will not find one. The Commonwealth's principal tobacco statute, in force since 1 April 2024, sets no age of sale. It does not contain the phrase "18 years". Age of sale in Australia is entirely a matter for the states and territories, and section 7 preserves their laws expressly: the Act "does not exclude or limit the operation of a State or Territory law that is capable of operating concurrently."

That is not the interesting part. The interesting part is that for an online seller, the federal offence that bites first is not selling to a minor. It is publishing the page that offers the product.

The storefront is the offence

Section 19(1) makes it a contravention to publish material, or authorise or cause material to be published, where the material is a tobacco advertisement. Section 20(1) defines that term as "any form of communication, recommendation or action that promotes, or is likely to promote" smoking or "a regulated tobacco item or the use of such an item", directly or indirectly.

Section 20(4) then supplies a presumption that decides most cases. Material that contains a trade mark registered in respect of goods that include regulated tobacco items "is presumed to promote smoking, or a regulated tobacco item or the use of such an item, unless the contrary is proved." A product listing carrying a cigarette brand is presumed to be a tobacco advertisement, and the burden of displacing that presumption is on the publisher.

There is an exception for telling customers you have stock, and its boundaries are where an e-commerce business ends. Under section 24, a statement that regulated tobacco items "are available from a manufacturer, importer, distributor or retailer" is not of itself a tobacco advertisement — but only if the statement does not "use the brand name or variant name of any particular kind of tobacco product" and does not "contain anything that would enable a particular regulated tobacco item, or a range of such items, to be identified."

A catalogue cannot satisfy that. Brand, variant, image, SKU, price against a named product — each is a thing enabling the item to be identified. The exception permits a sign saying tobacco is sold here. It does not permit a shop.

The penalties under section 19(4) are 2,000 penalty units for an individual and 20,000 penalty units for a body corporate, with a separate strict liability offence alongside the fault-based one. Section 19(6) applies extended geographical jurisdiction category B under the Criminal Code, so an offshore retailer publishing to Australians is within reach. The dollar value of a penalty unit is set under the Crimes Act 1914 and indexed, so quote the units, not a figure.

For vapes, the channel itself was removed

The Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Act 2024, assented on 27 June 2024, inserted a new Part 4A‑2 into the Therapeutic Goods Act 1989 — "Offences and civil penalty provisions relating to vaping goods". Three sections carry the structure:

• 41Q — importing vaping goods into Australia.
• 41QA — manufacturing vaping goods, or carrying out a step in their manufacture, in Australia.
• 41QB — supplying vaping goods in Australia.

Each is drafted the same way. "A person commits an offence if the person supplies vaping goods in Australia. Penalty: Imprisonment for 7 years or 5,000 penalty units, or both." A strict liability version sits beneath it at 200 penalty units, and a civil penalty provision above it at 7,000 penalty units for an individual and 70,000 for a body corporate.

Then the multiplier. For importation, section 41Q(4) provides that a person "commits a separate contravention of that subsection in respect of each unit of vaping goods imported". Civil exposure scales with inventory, not with incidents.

The offences are not absolute — each has exceptions, and they run through the therapeutic goods framework: goods that are therapeutic goods, supplied by a person holding the relevant licence, conformity assessment document or the Secretary's consent. Schedule 4 of the amending Act is titled "Supply of therapeutic vaping goods by pharmacists without prescription", which tells you where the lawful channel was put.

The practical consequence for an e-commerce team is unusual and worth stating plainly: for vaping goods there is no consumer age verification problem to solve online, because there is no general consumer online channel to run it in. The question is not how to verify a buyer's age. It is whether the supply falls inside a therapeutic goods exception at all.

The 2023 Act closes the remaining gap from the other side. Part 2.4 prohibits publishing e-cigarette advertisements, in a section 42 drafted in parallel to section 19 for tobacco. Its constitutional hooks are stated on the face of the provision and one of them is aimed squarely at this channel: the prohibition applies where the publication is made "using a postal, telegraphic, telephonic or other like service" within the meaning of paragraph 51(v) of the Constitution. Advertising vapes over the internet to Australians is caught whether or not any supply follows.

Where age verification actually lives

In the states and territories — eight separate regimes, preserved by section 7 of the Commonwealth Act and untouched by it.

That is the reverse of the arrangement in the United States, where 15 U.S.C. § 376a(a)(3) imports each destination state's tobacco law into the federal delivery-sale offence and gives a single federal hook for enforcing it. Australia has no federal equivalent for age of sale. Each jurisdiction sets its own minimum age, its own licensing and its own rules on remote or mail-order supply, and each enforces them itself.

For a seller this inverts the usual research order. In the UK you establish the duty, then the defence. In the EU you establish whether the destination permits the sale, then its minimum age. In Australia you establish, per jurisdiction, whether a remote sale is permitted at all — and separately, under federal law, whether the page offering it may lawfully exist.

What this looks like in practice

• Treat the advertising prohibition as the first gate. Section 19 applies to the publication, independently of whether any sale occurs or how old the buyer is.
• Assume brand names on a page defeat the section 24 exception. It permits a notice of availability, not an identifiable product.
• Do not assume distance puts you outside it. Section 19(6) applies extended geographical jurisdiction to offshore publication.
• For vaping goods, start from the Therapeutic Goods Act exceptions, not from an age gate. Supply without one is a 7-year offence.
• Count units, not incidents, when sizing vaping civil exposure. Section 41Q(4) makes each unit a separate contravention.
• Resolve age of sale per state and territory. There is no Commonwealth minimum age to fall back on, and the Regulations under the 2023 Act do not supply one.

Every other jurisdiction in this series asks how well you check age. Australia asks a prior question, and for most online tobacco and vaping propositions the answer ends the conversation before the age check is reached.