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Regulatory authorities criticise information on the flavour of electronic cigarettes

M. Bo Hillebrand

20. Juli 2023

Regulatory authorities are trying to attack the marketability of disposable e-cigarettes.

Regulatory authorities are currently increasingly objecting to the labelling of the flavour of electronic cigarettes, especially disposables, as a violation of Section 18 (2) sentence 2 no. 3 of the Tobacco Products Act.


It is important to emphasise that this objection is potentially unlawful for various reasons.


According to Section 18 (4) of the Tobacco Products Act, the provisions of Section 18 (2) sentence 1, 2 no. 3 of the Tobacco Products Act also apply to electronic cigarettes and refill containers. However, there is an exception in Section 18 (4) TabakerzG with regard to the indication of "information on the flavouring substances". This exception is based on the transposition of the Tobacco Products Directive (TPD) into German law.


The TPD is a European directive that harmonises the regulation of tobacco products and related products. The directive lays down specific requirements for the labelling and packaging of tobacco products.


Contrary to the opinion of the supervisory authorities, the exception regarding "information on flavouring substances" has not been included in the TPD solely to avoid conflicts with other provisions.


As the TPD has been transposed into national law on a 1:1 basis, the national supervisory authorities have the task of monitoring compliance with the provisions of the TPD. It is important to note that they must act within the framework of the TPD and may not introduce additional requirements that go beyond the provisions of the directive.


It is therefore questionable whether the supervisory authorities' objection to Section 18 (2) sentence 2 no. 3 of the Tobacco Products Act is legal. The fact that the TPD explicitly provides for an exception for the indication of information on flavouring substances not only to avoid conflicts with the labelling of ingredients and that the national provisions have adopted this exception indicates that the indication of the flavour of electronic cigarettes is generally permitted.


"Disposable" refers to single-use e-cigarettes that are disposed of after use. This type of e-cigarette is often seen as a practical alternative to conventional cigarettes. The question of flavouring information for disposable e-cigarettes is relevant insofar as these products are often pre-filled and therefore already contain the flavouring. In this context, it should be noted that the labelling of the flavouring on the packaging or container of disposable e-cigarettes can be regarded as a form of information for the consumer and could therefore be permitted in principle.


The meaning and purpose of Section 18 (4) TabakerzG and the existing objective differences between e-liquid and tobacco also speak in favour of Section 18 (4) TabakerzG permitting information on the flavour of the e-liquid.


The labelling of the flavour of refill containers for e-cigarettes can also be affected by complaints. Refill containers are separate containers that are used to fill e-cigarettes with liquid containing the flavouring.


Complaints from regulators must be based on a sound legal foundation and in accordance with applicable laws and regulations. It is important that the supervisory authorities make their decisions in a transparent and comprehensible manner, taking into account the specific provisions of the Tobacco Products Act and the TPD.


The objection to the labelling of the flavour of electronic cigarettes and refill containers as a violation of Section 18 (2) sentence 2 no. 3 TabakerzG is potentially unlawful.


The exception regarding the information on the flavouring substances in the TPD could allow the indication of the flavour on the packaging and containers of electronic cigarettes and refill containers.


Such an objection should not be accepted. It should already be comprehensively explained in the hearing why the labelling of the flavour of electronic cigarettes and refill containers can be considered compatible with Section 18 (2) sentence 2 no. 3, (4) of the Tobacco Products Act.

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