No ban on e-cigarette in restaurants

In North Rhine-Westphalia, e-cigarettes in restaurants may not be banned by the city

04/11/2014

Tobacco lobby, doctors and e-cigarette lobbyists have been battling for electronic steam devices since the beginning. This dispute is also litigated. The representatives of e-cigarettes can now claim a success for themselves: The Higher Administrative Court in Münster ruled that the „Evaporate“ allowed by e-cigarettes in restaurants. Thus, part of the North Rhine-Westphalia non-smoking protection law was tipped to the delight of the plaintiffs.

If restaurant owners want to allow the smoking of e-cigarettes in North Rhine-Westphalia, then they must not be denied. Because the consumption of the electric replacement cigarette is allowed in the restaurant industry (Az .: 4 A 775/14). „Innkeepers are under the North Rhine-Westphalia Non-smoking Protection Act (NiSchG NRW) not obliged to stop the use of so-called e-cigarettes in their businesses“, so the verdict of the 4th Senate. Because with e-cigarettes no nicotine burned, but nicotine-containing liquid is evaporated, it would not act in the opinion of the judges classic smoking. This does not affect the smoking ban.

The plaintiff operates a restaurant in Cologne and tolerates the use of e-cigarettes by his guests. The city of Cologne threatened him with regulatory measures, should he in their opinion, prohibited by the NiSchG NRW prohibited consumption of e-cigarettes in his restaurant effectively. The plaintiff then sought a judicial finding that consumption of an e-cigarette was not covered by the NiSchG NRW. For e-cigarettes, there is no smoke due to the lack of combustion; the ingredients would rather only be evaporated. The inclusion of the e-cigarette in the smoking ban was also unconstitutional.

The administrative court upheld the claim. With today's judgment, the Higher Administrative Court has rejected the appeal of the city of Cologne. In support of the reasoning, the chairman essentially stated at the hearing: The NiSchG NRW does not contain any explicit regulations on the e-cigarette. To § 3 para. 1 sentence 1 NiSchG NRW prohibits "smoking" in certain facilities, including restaurants. According to general and technical language, smoking is to be understood as the inhalation of smoke that occurs when tobacco is burnt. When using an e-cigarette, however, there is no combustion process but an evaporation process. In addition, the vaporized liquid (liquid) is not a tobacco product in the legal sense because it is not intended for smoking. This also applies to the nicotine contained in many liquids. With the genesis of the NiSchG NRW an application of the smoking ban on e-cigarettes can also not be justified. With the adoption of the NiSchG NRW in 2007, the legislature did not have the e-cigarette in view. While the amendment to the law in 2012, he had the intention to treat the e-cigarette as conventional cigarettes. However, he did not change the wording of the prohibition standard accordingly. However, this would have been necessary in order to make the scope of the standard sufficiently clear to the addressees of the standard. In addition, the NiSchG alone serves to protect against the dangers of passive smoking. Possible dangers of e-cigarettes are thus "in any case neither identical nor comparable". The danger of an e-cigarette for "passive steamer" was so far not sufficiently researched, let alone proven. The legislature itself assumes that health risks can only be ruled out. In any case, if he intended to include the e-cigarette in the ban on smoking in 2012, he did not sufficiently consider these differences.

The Senate did not approve the revision. On the other hand, a non-admission complaint is possible, which is decided by the Federal Administrative Court. It is up to pub owners to decide whether or not they allow the evaporation of electronic cigarettes. (Court, Sb)