When the public health official who gave Thailand legal weed promoted a heavy-handed crackdown on electronic cigarettes this week, one couldn’t be blamed for asking: Just what was he smoking?
After all, Bangkok, like the rest of Thailand, is awash in vapes. Legions vape in broad daylight. They puff away in bars and restaurants from devices sold openly on sidewalks.
So why was health minister Anutin Charnvirakul thundering on about arresting those importing e-cigarettes? And how could something so prevalent be illegal?
The answer to the first question is, obviously, electoral politics. Anutin desperately wants to be prime minister and is trying to burnish his credentials with the drugs-are-bad block of voters salty about his backdoor decriminalization of cannabis.
But we’re not here to talk about Anutin’s political future. We’re here to talk about vaping because, nine years after they were banned, vapes have surged back to attention after a visiting actress embarrassed the men in uniforms by showing the entire world how venal and corrupt they can be.
We embarked on a deep dive to cut through the haze and see what the law actually says to answer definitively: Is using a vape really forbidden? Or is possession illegal, which would amount to an academic distinction? As it turned out, a review of the relevant codes and regulations brought us to the surprising conclusion that vapes and vaping have not been illegal for several years, despite all the headlines and assertions otherwise.
Because, let’s face it: Bangkok is vaping more than ever. Your friends do it; your relatives do it; you may do it. Is it time for everyone to take it underground again?
It is true that, in 2015, all types of e-cigarettes and refill cartridges were banned – along with hookahs. Sale and importation were both banned. For a while thereafter, police fined people vaping publicly, and smoke-busting soldiers were dispatched to raid nightlife venues. For some years, people were wary of carrying e-cigarettes for the real threat of police trouble.
But enforcement seemed to just stop after that, and the ban pretty much went ignored for several years, right up until Charlene An showed up, the actress with the vape in her handbag. A similar incident took place this month in which police shook down vaping Chinese travelers.
How could An and other travelers be held to account when everyone has been vaping openly without fear for years?
Because, if you set their corrupt bribe-taking aside, the police had the right read of the law. Bringing a vape into the country or influencing someone else to bring one for you – the aforementioned “importation” – is illegal. So, anyone boarding a flight to Thailand with one in their bag is risking trouble.
But the ban on sales ended in 2019, when it was effectively undone by amendments to a key law.
Importation remains illegal under the Customs Act. That has not changed. However, the 2015 announcement from the Consumer Protection Board that established the ban on sales – and set harsh penalties – relied on sections of the law that were removed four years later in the 2019 update to the Consumer Protection Act, or CPA.
But don’t take our word for it.
“There is no law prohibiting possession,” attorney Sukhprem Sachdecha, a partner at Bangkok legal firm WSR International, told Coconuts.
Sukhprem, who has studied the issue in depth, cited specific sections of the CPA – 36, 38, and 56 – repealed in 2019 to explain. The 2015 ban was based on Sections 36 and 38, and their repeal invalidated it, he said.
The original ban on importation however remains in the Customs Act.
“There is a law saying you cannot import them,” Sukhprem said. “But the Customs Act says nothing about possession.”
Sukhprem added that the change had, to his knowledge, gone unnoticed by the public.
“This has never been brought up in the media,” he said.
He cautioned that while people should be armed with this knowledge, it would be unwise to argue the finer points of law with the police that are better made in court. In fact, he said that he is aware of two people who have cited the change to successfully defend themselves from prosecution.
“To prosecute someone under criminal law, there has to be a clear law,” he said. “There’s nothing in the law which says that having in possession of such goods is in violation of the law.”
That even applies if the vape you ordered from Line or picked up from a stall around Nana originally came from another country and was therefore “imported” against the law.
“If you were someone bringing it in or someone was bringing it for you, if you are somehow involved, then you could be in violation,” he said. “[But] if you bought it without clear knowledge … if you have no involvement, no knowledge, no intent” then there is no culpability.
He also believes sales are no longer forbidden under the law but noted that the Consumer Protection Board recently insisted otherwise.
The government itself doesn’t seem to be aware that the ban has been invalidated. The administration of Gen. Prayuth Chan-ocha, which moved to put the ban in place within months of his 2014 coup d’etat, reaffirmed its commitment to prohibition last year.
Earlier this month, Chaiwut Thanakamanusorn, a cabinet minister and deputy leader of the ruling Palang Pracharath Party, said that he would push for vapes to be decriminalized because their use was pervasive and the government might as well collect the tax revenue.
While they may be surprised to learn the blanket ban is a mirage, it should be a relief to the many vape-packing Bangkok residents who, with a few clicks can easily find sellers online or in the Line chat app. Send a message, transfer payment by QR code, and a courier puts them in their hands within hours.
Or just walk around the Nana area around evening time to find stalls and shops selling electronic cancer sticks in all shapes and sizes and flavors. Like kids in a candy shop, smokers can choose from strawberry, pineapple, mango, even yogurt and mineral water.
That gets at why a blanket ban does more harm than good. The vapes on the market are very sweet, packed with sugar, and designed to appeal to children and maximize addiction. They should be regulated.
If the reason for banning the devices rested largely on the health threat posed to young people, who by the government’s estimation comprise the majority of e-smokers, the authorities could do more public good by regulating the products and how they are advertised, and banning practices that endanger young lives.
Correction: An earlier version of this story asserted that e-cigarette possession had also been banned from 2015 to 2019, when it fact it was only sales and “provision of services” such as providing refill cartridges or hookah lounges.
