New Tobacco Products Act has come into effect

Shocking pictures, prohibition of characteristic aromas and a new legal environment for e-cigarettes. German tobacco law has taken a comprehensively new direction with the coming into effect on 08.04.2016 of the new Tobacco Products Act by publication in the Federal Gazette.

Shortly before the expiry of the implementation deadline on 20.05.2016, the requirements of the EU Tobacco Products Directive are transformed into national law. Further intensification of restrictions, for example the prohibition of public and cinema advertising or the regulation of nicotine-free e-cigarettes, have initially been deferred so as not to delay compliance with the implementation deadline. A notification procedure at the European Commission is in progress in this connection because of possible adverse effects on the European internal market by purely national regulations on these issues.

Electronic cigarettes containing nicotine and their refills receive a statutory framework with the version of the Tobacco Products Act now coming into effect, for example with regard to their ingredients, the maximum refill volume, their nicotine content and the necessary warnings. In addition, the advertising prohibitions currently applicable for tobacco products will in future also apply to e-cigarettes. The new provisions are applicable from 20.05.2016.

Legal certainty has thereby been restored with regard to the sale of e-cigarettes’ liquids. A recent judgment of the Federal Court of Justice created a certain legal vacuum in this area leading to uncertainty on the part of dealers. In this judgment of 23.12.2015, the Federal Court of Justice classified e-cigarettes’ liquids containing nicotine extracted from natural tobacco plants as tobacco products. If these liquids – which is typically the case – contain substances, the use of which is forbidden for tobacco products, the sale of such products is a criminal offense in the opinion of the Federal Court of Justice. With the coming into force of the new Tobacco Products Act, the placing of liquids containing nicotine on the market is again legal – subject to compliance with the requirements described there.

As a further element of the “Tobacco Prevention Package” of the Federal Government, the “Act to protect children and young persons from the danger of consumption of electronic cigarettes and electronic shishas” was published in the Federal Gazette on 10.03.2016. The Act extends the prohibition on sale and consumption already provided in the Youth Protection Act and Youth Work Protection Act to electronic cigarettes and e-shishas.