Western Australia is planning to override the federal government's vaping laws to stop the over-the-counter sale of e-cigarettes.

But despite touting the "toughest" laws in the country, vapes are still able to be illegally purchased at many retailers across the state and the health minister has refused to say how many vendors have been prosecuted.

Earlier this year Australia became the first country to ban the sale of vapes outside pharmacies, as part of a suite of changes which also regulated packaging and flavours. 

Under those laws, anyone buying a vape needs a prescription.

But because of a deal done with the Greens to get the changes through the Senate, that's due to change next Tuesday when the requirement is "down-scheduled". 

It means pharmacies will be able to sell vapes containing nicotine to anyone over 18 where a pharmacist deems it "clinically appropriate" – a change which would weaken WA's requirement for a prescription for all vapes sold.

No vapes without prescription

"Community pharmacists don't want to be selling vapes, [that was] their very clear message to us," WA Health Minister Amber-Jade Sanderson told ABC Radio Perth.

"We have essentially moved to seek our own independent legal advice and we have received that now which essentially outlines that it wouldn't be an issue constitutionally for the state to override this part of the legislation with the West Australian regulations.

"So what that means is we're drafting regulations which will essentially eliminate that part of the Commonwealth law so that it will still be illegal in Western Australia to access vapes without a prescription."

Ms Sanderson did not answer a question about whether WA's regulations would be in effect by next week, saying they would be introduced "as soon as practically possible" in addition to urging pharmacists not to stock vapes.

The minister said while doctors could write prescriptions for e-cigarettes, she believed very few were.

"There is very little evidence that actually shows that vapes is a sensible cessation option for smoking, there are far better options available that GPs will generally support their patients with," Ms Sanderson said.

Vapes still sold illegally

Tasmania was the first state to announce plans to override the Commonwealth changes. 

That legislation was introduced to the state's parliament last week but is yet to pass.

It means WA's plans could be in effect sooner because regulations are prepared by government departments and do not need to pass through parliament.

But they will do little to tackle the various other places where vapes are still sold, despite it being illegal. 

Federal Health Minister Mark Butler told Insiders on Sunday it was clear "we have to switch to a far more assertive approach" to tackle those retailers.

Figures presented to the WA parliament earlier this year showed in the two years to June 2024, 473,254 vapes had been seized by WA Health.

But the government refused to say how many prosecutions had been made.

In June last year, WA Health confirmed it had brought just one prosecution against a retailer for the illegal sale of nicotine vapes in the preceding 12 months, despite seizing 43,000 illegal vapes during that period.

Ms Sanderson said today she could not talk about ongoing prosecutions.

"That's why we welcome the Commonwealth laws so there is a consistent, national legal and regulatory framework to determine what is legal and what is not."