Term and Definition: Electronic Cigarettes
Electronic cigarettes, often referred to as e-cigarettes, are devices for vaporizing liquids containing nicotine or without nicotine (“liquids”). They are used for inhaling vapor produced by heating the liquid in a cartridge or tank. Electronic cigarettes serve as an alternative to conventional tobacco cigarettes and differ in structure, functionality, and legal treatment.
Legal Classification
Distinction from Tobacco Products
Electronic cigarettes are not considered traditional tobacco products as they do not burn tobacco. Nevertheless, they are legally treated similarly in many regulatory areas. In numerous laws, including the Tobacco Products Act (TabakerzG), there is an explicit distinction between tobacco products and related products such as electronic cigarettes.
Statutory Framework in Germany
Tobacco Products Act (TabakerzG) and Tobacco Products Ordinance (TabakerzVO)
In Germany, electronic cigarettes are subject to the Tobacco Products Act (TabakerzG) and the associated Tobacco Products Ordinance (TabakerzVO). The regulations cover in particular
- Requirements for the ingredients of liquids
- Labeling and packaging regulations
- Regulations on product notification to authorities such as the Federal Institute for Risk Assessment (BfR)
- Advertising restrictions
- Sales and distribution regulations, especially age limits
Youth Protection
According to § 10 of the Youth Protection Act, the sale of electronic cigarettes and their accessories to persons under the age of 18 is prohibited in Germany. The inhalation by minors in public is also forbidden. Retailers are required to ensure compliance with age limits.
Tax Treatment
Since July 1, 2022, nicotine-containing liquids for electronic cigarettes are subject to a separate excise tax under the Tobacco Tax Modernization Act (TabStMoG). In the following years, a gradual increase in taxation is also planned. The tax obligation applies to nicotine-free liquids as well, provided they are intended for use in electronic cigarettes.
Health Protection and Product Safety
Electronic cigarettes are subject to the principle of health protection. Manufacturing and distribution are tied to strict quality and safety requirements. Manufacturers must disclose liquid compositions and place warning notices on packaging. Certain additives and health-endangering advertising claims are prohibited.
E-cigarettes in the International Context
EU Legal Regulations
Within the European Union, Directive 2014/40/EU (Tobacco Products Directive, TPD) applies, which provides for a fundamental regulation of electronic cigarettes. This includes notification obligations, restrictions on ingredients, and uniform minimum standards for safety and consumer protection. National regulations determine implementation, with EU member states able to introduce further provisions.
Cross-border Trade
Cross-border mail order of electronic cigarettes is subject to special regulations. Shipping nicotine-containing products to consumers in countries where this is prohibited may result in legal consequences. National regulations take precedence in this regard.
Advertising and Public Relations
Advertising restrictions
Electronic cigarettes and liquids are subject to extensive advertising restrictions under the Tobacco Products Act and Tobacco Products Ordinance. Advertising in broadcasting and on the internet is completely prohibited. Outdoor advertising has been largely banned since 2021. Advertising is only permitted at the point of sale and only under strict conditions.
Ban on Sponsoring, Promotion, and Free Samples
Product placements, sponsorship within the framework of events, and the free distribution of e-cigarettes for promotional purposes are not permitted. The aim of the legislator here is to reduce the attractiveness, especially for minors.
Non-Smoker Protection and E-Cigarettes
Public Facilities and Means of Transport
The use of electronic cigarettes is not regulated uniformly at the federal level and often falls under local provisions, for example, under the respective non-smoker protection laws of the federal states. Many operators of public facilities and means of transport restrict vaping in a manner similar to tobacco smoking.
Workplace Law
Employers can regulate or prohibit vaping in the workplace by directive. There is generally no obligation to provide special rooms.
Product Liability and Recall Obligations
Manufacturers and retailers have a special duty of care with regard to product safety. In the case of defects, health risks, or incorrect warnings, the general civil law liability standards apply. Authorities may also order recalls and bans on distribution.
Criminal and Administrative Offenses Law
Violations of the statutory provisions regarding the distribution, labeling, or advertising of electronic cigarettes can lead to fines and, in severe cases, to criminal consequences. This also includes sales to minors and intentional mislabeling.
Development of Case Law
The treatment of electronic cigarettes has been and remains the subject of court proceedings, especially regarding product characteristics, tax law, and the question of equal treatment with tobacco products. High court decisions shape the further interpretation and application of the relevant provisions.
Summary
Electronic cigarettes are regulated as distinct products with a complex legal framework. The regulations affect production, distribution, labeling, taxation, advertising, youth protection, and product safety. National and European regulations as well as developments in case law are subject to continuous development and adaptation in the interests of health and consumer protection.
Frequently Asked Questions
May I use electronic cigarettes in public?
The use of electronic cigarettes, also called e-cigarettes, in public in Germany largely depends on the respective federal states and municipal regulations. In principle, e-cigarettes are not automatically subject to the same regulations as conventional tobacco cigarettes, but many federal states have extended smoking bans to include e-cigarettes. For example, vaping is often prohibited in public buildings, schools, daycare centers, hospitals, and public transport. In catering establishments as well as restaurants and bars, vaping is generally also not permitted if there is a general smoking ban. Violations of such regulations can result in fines. Furthermore, private businesses and institutions are free to issue their own vaping bans. Travelers should also familiarize themselves with regulations abroad in advance, as stricter laws up to a complete ban on e-cigarettes may apply there.
Is there a minimum age for purchasing and using e-cigarettes?
The sale of e-cigarettes as well as nicotine-containing and nicotine-free liquids is strictly regulated in Germany according to § 10 of the Youth Protection Act (JuSchG). Sale to children and adolescents under 18 years of age is expressly prohibited, as is use in public. Retailers are obligated to check the buyer’s age using identification documents. This regulation applies both to retail and to online sales. Anyone who violates these regulations must expect significant fines. Advertising and sponsorship for e-cigarettes specifically targeting minors are also prohibited. The import of e-cigarettes and liquids by minors is likewise not permitted.
What legal requirements apply to the ingredients of e-liquids?
E-liquids are subject to strict legal regulations in Germany and the European Union, especially under the Tobacco Products Ordinance (TabakerzV) and the EU Tobacco Products Directive (TPD2). Manufacturers must state the exact ingredients on the packaging. They are permitted to use only a limited selection of approved additives and the nicotine concentration is limited to a maximum of 20 mg/ml. Substances such as vitamins, caffeine, taurine, colorants, or additives that could create the impression of health benefits are not allowed. The use of certain flavors is also restricted, especially those particularly appealing to young people. In addition, there is a comprehensive notification obligation: Each new formula must be notified to the competent authorities before being placed on the market, and toxicological data must be provided.
What requirements apply to the packaging and advertising of e-cigarettes?
Packaging for e-cigarettes and liquids is subject to strict requirements. For example, child-resistant and tamper-evident closures are mandatory. Packaging must bear clear warnings about health risks, similar to conventional tobacco products. Detailed information on ingredients as well as instructions for use and contraindications are required. Advertisements for e-cigarettes may not target minors. Advertising is prohibited on radio, television, the internet, and in print media predominantly addressed to minors. Sponsorship of events targeting young people or those with mainly young attendees is also forbidden.
What legal regulations apply to importing e-cigarettes from abroad?
When importing e-cigarettes and liquids from countries outside the EU, national import regulations apply. Shipping and import for personal use are generally permitted as long as there is no commercial purpose and customs allowance limits are observed. Special attention should be paid to differing rules regarding ingredients and nicotine content: Products not authorized for sale in Germany or the EU may not be imported. There is a general reporting requirement for the first-time marketing of new products. Anyone wishing to import larger quantities may also require the relevant approval and must comply with the applicable tax laws. Violations of these regulations can result in confiscation or fines.
How are e-cigarettes and liquids taxed?
Since July 1, 2022, specific tax rules have applied in Germany for so-called substitution products, which also include liquids for e-cigarettes. This excise tax is levied on nicotine-containing and nicotine-free liquids intended for consumption in e-cigarettes. The tax rate increases annually in several stages, in accordance with the Tobacco Tax Modernization Act. Both retailers and importers are obliged to pay the respective taxes and to mark their products with tax stamps. Private imports from abroad are also taxable if the relevant customs and tax-free allowances are exceeded.
Can e-cigarettes fall under the Non-Smoker Protection Act?
The German Non-Smoker Protection Act primarily regulates protection from the dangers of passive smoking. In some federal states and regions, e-cigarettes are explicitly included in these protective regulations, and are legally equated with tobacco products. This means that they may not be used in enclosed public spaces, in the workplace, and in schools and other public facilities. The exact regulations vary according to state law; in some regions, e-cigarettes are explicitly excluded and are subject to less restrictive rules. Accordingly, knowledge of the local legal situation is essential. At the federal level, there is still no uniform regulation on the equal treatment of e-cigarettes and tobacco products regarding non-smoker protection.
