(Feb. 23, 2016) On December 23, 2015, the German Federal Court of Justice (Bundesgerichtshof (BGH)) held that the nicotine-containing liquids used in electronic cigarettes (e-cigarettes) qualify as tobacco products and that their distribution and sale without a permit are therefore illegal. (BGH, Dec. 23, 2015, 2 StR 525/13, BGH website (in German).) According to the Court, it is irrelevant that the consumption of e-cigarettes does not involve the burning of tobacco products and that no smoke is inhaled. The Federal Court of Justice concluded that e-cigarettes are intended “for other oral use” as defined in section 3, paragraph 1, of the Provisional Tobacco Act, because the nicotine contained in the liquid enters through the mouth and therefore reaches the lungs and bloodstream orally. (Id. ¶¶ 35, 37, & 38; Vorläufiges Tabakgesetz [Provisional Tobacco Act] (Sept. 9, 1997), BUNDESGESETZBLATT [BGBl.] I at 2296, as amended, GERMAN LAWS ONLINE.) In addition, the Court confirmed that e-cigarettes cannot be classified as medicinal products. (BGH, 2 StR 525/13, ¶ 25.) The decision was rendered in December 2015 but was not published until February 2016.
Electronic cigarettes are defined by the German Federal Institute for Risk Assessment as battery-operated products that typically resemble conventional cigarettes. Instead of tobacco, they contain cartridges filled with liquids that are generally composed of nicotine, flavoring, and other chemicals. During consumption, the liquids are heated and thereby vaporize. (Bundesinstitut für Risikobewertung [BfR] [German Federal Institute for Risk Assessment], Frequently Asked Questions About E-Cigarettes (Mar. 1, 2012), BfR website.)
“Tobacco products” are defined in section 3 of the Provisional Tobacco Act as “products made of or derived from raw tobacco intended for smoking, chewing, other oral use, or sniffing.” The Act equates the following products with tobacco products: raw tobacco and products closely resembling tobacco products intended for smoking, chewing, other oral use, or sniffing; cigarette papers, cigar binders, and other components that are firmly attached to the tobacco products; and other non-commercially available cigarette papers used for rolling cigarettes. (Provisional Tobacco Act, § 3 ¶ 2.)
Prior to the December 23 ruling of the Federal Court of Justice, the German Federal Administrative Court (Bundesverwaltungsgericht (BVerwG)) had only ruled that e-cigarettes cannot be classified as medicinal products and therefore cannot be sold without approval in accordance with the Medicinal Products Act. (Arzneimittelgesetz [AMG] [Medicinal Products Act] (Dec. 12, 2005), BGBl. I at 3394, as amended, GERMAN LAWS ONLINE (in English).) The Court had left open the question of the applicability of tobacco and antismoking laws to e-cigarettes and similar products. (BVerwG, Nov. 20, 2014, Docket No. 3 C 25.13, BVerwG website; Jenny Gesley, Germany: Electronic Cigarettes, CONGRESSIONAL REPORTS (July 2015), Law Library of Congress website; see also Jenny Gesley, Germany: Parliament Debates E-Cigarettes Prohibition for Minors, GLOBAL LEGAL MONITOR (Dec. 9, 2015).)
Reactions to the Decision
The decision has been criticized on various grounds, including the fact that the legal basis for the regulation of e-cigarettes will change soon. Germany is required to implement the tobacco products directive of the European Union by May 20, 2016. (DPA, Handel mit nikotinhaltigen E-Zigaretten strafbar [Sale of Nicotine-Containing E-Cigarettes Illegal] (Feb. 8, 2016), HANDELSBLATT.COM; Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning the Manufacture, Presentation and Sale of Tobacco and Related Products and Repealing Directive 2001/37/EC Text with EEA Relevance, 2014 O.J. (L 127) 1, EUR-LEX.)
The draft act released by the Federal Government to implement the directive allows the sale without a permit of liquids for e-cigarettes that contain up to 20 milligrams of nicotine per milliliter. (Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zur Umsetzung der Richtlinie über Tabakerzeugnisse [Draft Act of the Federal Government, Draft Act to Implement the Directive on Tobacco and Related Products], DEUTSCHER BUNDESTAG: Drucksachen und Protokolle [BT-Drs.] 18/7218 (Jan. 11, 2016), § 14.)