BGH e-cigarettes are currently prohibited

BGH: Electronic cigarettes are currently banned: but new law comes until May
Karlsruhe (jur). Electronic cigarettes are currently banned unless the nicotine used is derived from tobacco. Because according to currently valid law, the liquids required for "steaming" are then considered as illegal tobacco products, as the Federal Court of Justice (BGH) in Karlsruhe ruled in a judgment published on Monday, February 8, 2016 (Ref .: 2 StR 525/13) , By May, however, new legal requirements come into force.
E-cigarettes should enable smoking without smoking. The narcotic nicotine is released on evaporation of a liquid contained in a refill filter cartridge. Main components of these so-called liquids are usually propylene glycol and glycerol.

First forbidden with nicotine: e-cigarettes. Picture: juniart - fotolia

Specifically, the BGH confirmed a judgment of the Frankfurt / Main district court against a distributor of liquids. In case of dispute, they also contained ethanol.

The BGH initially followed the case law of the Federal Administrative Court, according to which the Liquids are not drugs or medical devices (judgments and JurAgentur Report of 20 November 2014, Ref .: 3 C 25.13 and 3 C 26.13). Therefore, a penalty for the sale of unauthorized medicines is ruled out.

However, these are prohibited tobacco products, the BGH continues. The liquids are a tobacco product because the nicotine used was derived from tobacco. However, according to the Tobacco Ordinance, it is "prohibited to place on the market tobacco products intended for smoking or chewing for oral use". But this is true, because the liquids of e-cigarettes would also be consumed by mouth.

In addition, it contains ethanol which is not authorized as an additive for tobacco products. The usual substances propylene glycol and glycerol are admitted, but only as humectants with shares up to five or ten percent. "Their use as the main constituent of the liquid consumables of electronic cigarettes is therefore not permitted," emphasized the Karlsruhe judges in their now published written judgment of 23 December 2015.

However, a new tobacco directive was adopted at EU level in April 2014. Germany has to implement it by 19 May 2016. The Federal Cabinet passed a bill on 16 December 2015, but it is still being discussed in the Bundestag committees.

According to the Directive, e-cigarettes are no longer considered tobacco products; instead there are special provisions. The directive also includes new requirements for the additives. The EU states can largely decide for themselves on the flavors permitted in the liquids. A ban on "steaming" would probably not be allowed under the directive. mwo / fle